Birk & Farwell - [2020] FCCA 2732

FEDERAL CIRCUIT COURT OF AUSTRALIA
Birk & Farwell [2020] FCCA 2732

File number(s): MLC 14486 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 2 October 2020

Catchwords: FAMILY LAW – Interim property order – part property dispute – characterisation not mandatory – hair follicle test – welfare of children – secure chain of custody.

Legislation: Family Law Act 1975 (Cth), ss. 60CC, 75, 79, 80(1)(h), 90SM and 90SS

Cases cited:
Kyriakos & Kyriakos (2013) FLC 93-528

Marchant & Marchant (2012) FLC 93-520

Medlow & Medlow (2016) FLC 93-692

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Number of paragraphs: 77

Date of last submission: 1 October 2020

Date of hearing: 24 September 2020

Place: Melbourne

Counsel for the Applicant: Mr Ham

Solicitor for the Applicant: Lopes Family Law

Counsel for the Respondent: Ms Dellidis

Solicitor for the Respondent: Hargreaves Family Lawyers

MLC 14486 of 2019

BETWEEN:
MR BIRK
Applicant

AND:
MS FARWELL
Respondent

IT IS NOTED that publication of this judgment under the pseudonym Birk & Farwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

This matter came before me on Thursday, 24 September 2020. The parties are 47 and 48 years old, they have two children aged 10 and six, they commenced to live together in 2005 and the relationship ended in February 2019. The Applicant De Facto Husband (Applicant), issued proceedings seeking property relief on 19 December 2019, filed an amended application for final orders on 14 May 2020 that particularised the property relief he sought and sought an alteration of the living arrangements for the two children.
The first return of the proceedings was before Registrar Kaur on 19 February 2020 when detailed orders as to payment of mortgages and disclosure were made and also an order was made that each of the parties:
“Do all things necessary to cause the sum of $50,000 to be paid to each of the Applicant and Respondent from the Commonwealth Bank account, ending in ..31 such sums to be characterised as partial property settlement to each of the parties.”
The matter was adjourned for mention on 18 May 2020. To the credit of the parties the matter did not need to be dealt with on this date as they had provided to the court detailed orders dealing with their properties and an interim defended hearing was fixed on 24 September 2020 at 9:30am. In addition to detailed orders as to the sale of two of the parties’ three properties there was an order that the Respondent De Facto Wife (Respondent) pay to the Applicant $10,000 and that the classification of such payment to be reserved until the final hearing.
I am grateful to the solicitors and counsel for the parties who have assisted me with careful and detailed written submissions. By the orders of 15 May 2020 the Respondent was required to file an amended response and any updated documents, which would include affidavits, within 14 days. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Birk & Farwell [2020] FCCA 2732
Case: [2020] FCCA 2732
Decision Date: 2 October 2020

CaseChat Overview and Summary

In *Birk & Farwell*, heard before Judge O'Shannessy, the parties were engaged in interim proceedings concerning a property dispute within their family law matter. The central issue revolved around the admissibility and weight to be given to evidence derived from a hair follicle test, particularly in light of concerns regarding the welfare of the children and the integrity of the chain of custody for the samples.

The court was required to determine whether the hair follicle test results were admissible and, if so, what weight they should carry in the context of the interim property orders. This involved considering the reliability of the testing methodology and the procedures followed to ensure a secure chain of custody, as these factors were critical to assessing the probative value of the evidence in relation to the children's welfare.

Judge O'Shannessy reasoned that while characterisation of property is not mandatory at the interim stage, the court must still be satisfied that it has sufficient information to make appropriate orders. The judge found that the hair follicle test results, due to a compromised chain of custody, were not sufficiently reliable to be admitted into evidence. Consequently, the court declined to rely on this evidence when making its interim property orders, prioritising the need for reliable evidence in family law proceedings.

Orders