Kalant & Jordain

Case [2021] FedCFamC1F 319

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kalant & Jordain [2021] FedCFamC1F 319

File number(s): PAC 2727 of 2015
Judgment of: GILL J
Date of judgment: 17 December 2021
Catchwords:

FAMILY LAW – PARENTING – Application by the father for sole parental responsibility of the child – Parties involved in previous parenting proceedings in the Federal Circuit Court – Where the mother made allegations about the child being abused by the father in the previous proceedings – Where the mother has previously been in breach of court orders to provide the child to the father – Where the mother makes allegations about the child being physically and sexually abused by the father in the current proceeding – Where the mother has made various reports of abuse to the police and child protective services – Whether the mother has encouraged the child to make reports of abuse to third-parties – Whether the child is at risk of harm in the care of the father – Whether the father poses an unacceptable risk of harm to the child – Unacceptable risk not established – Where the child is at risk of psychological and emotional harm in the care of the mother – Enmeshed psychologically and emotionally abusive relationship – Father to have sole parental responsibility of the child – Child to live with the father – Mother to spend supervised time with the child transitioning to unsupervised time – Father to engage a therapist for the child. 

FAMILY LAW – PROPERTY – Property adjustment – Property adjustment to be just and equitable – Where the husband purchased a house prior to the commencement of the relationship – Where the husband accrued superannuation and savings prior to the commencement of the relationship – Where the wife asserts she made improvements to the house during the relationship – Where the house was sold prior to the commencement of the trial in these proceedings – Where the parties have accrued unpaid legal fees arising from the proceedings – Husband asserts he supported the wife and her children during the relationship – Where wife made no financial contributions during the relationship – Where the wife has had primary care of the child since separation – Where the husband asserts he has paid child support – Where husband seeks no adjustment of the property – Consideration of the wife’s non-compliance with orders – Where wife seeks an adjustment – Adjustment made in favour of the husband.   
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZX, 75, 79

Family Law Rules 2004 (Cth) r 11.07

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.01
Cases cited:

B & J (2009) FamCAFC 103

Bevan v Bevan (2013) FLC 93-545

Carl Zeis Stiftung v Rayner and Keeler Ltd (No 2) (1967) 1 AC 853

Dickons v Dickons (2012) 50 Fam LR 244

Elmi & Munro (2019) FLC 93-912

Farnell & Farnell (1996) FLC 92-681

In the Marriage of Aleksovski (1996)…

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AGLC
Kalant & Jordain [2021] FedCFamC1F 319
Case
[2021] FedCFamC1F 319
Decision Date

CaseChat Overview and Summary

In the case of Kalant & Jordain, the Federal Circuit Court addressed significant allegations made by the mother against the father concerning the welfare and safety of their child, X. The dispute primarily centered around the father's conduct both during the relationship and post-separation, with the mother claiming unacceptable risks to X's wellbeing. The court was tasked with determining whether the existing orders still served X's best interests given the new allegations and whether the father's conduct warranted any changes to the existing arrangements.

The primary legal issues before the court involved the admissibility and application of findings from previous proceedings, as well as the appropriate weight to be given to new evidence presented. The court had to decide whether the mother's new allegations were credible and whether they justified any alterations to the existing orders. Additionally, the court needed to balance the principle of welfare and interests of the child against the procedural fairness and the burden of rehearing certain matters. The court also had to determine the appropriate division of property and any necessary adjustments to financial orders, taking into account the respective incomes and contributions of the parties.

The court meticulously reviewed the evidence and findings from the previous proceedings, noting that while issue estoppel does not strictly apply in family law matters, the court has a discretion to avoid rehearing certain issues if it would serve justice. The court found that the mother's new allegations lacked sufficient substantiation and credibility, largely due to the lack of detailed evidence and the general nature of the claims. Consequently, the court concluded that the existing orders remained appropriate for X's welfare. In terms of property division, the court considered the contributions and financial positions of the parties, leading to a division in favor of the father by a ratio of 80/20. The court also addressed the father's request to stay a payment to the mother pending a costs application, ordering that the payment be contingent on the outcome of such an application within 28 days of the judgment.

In summary, the court upheld the existing orders regarding the care and welfare of X, found the new allegations insufficiently supported, and adjusted the property division to reflect the parties' respective financial situations. The court further directed that any payment to the mother be contingent on the resolution of a costs application by the father, ensuring creditors are notified and given an opportunity to respond.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The allegations and contraventions are of such significant nature that on their face they are suggestive that the current orders no longer serve X’s best interests and justify this further hearing of the matter.Evidence and findings from the previous proceedings In relation to the child-related proceedings the parties sought support for their positions by drawing upon either transcript from the previous trial, or findings made in the previous trial, each admitted pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”). They did not rely upon the whole of the transcript but rather relied upon portions identified by highlighting the evidence of the parties, as identified at Exhibit C2. While the parties relied upon the highlighted portions only, they accepted that the transcript surrounding such portions was also available to place those aspects in context. At Exhibit F15 the father identified which of the factual findings of Judge Tonkin that he seeks to rely upon in this hearing. In considering the use of such findings in the current proceedings, it is necessary to identify the legal framework within which they may be used. Firstly, the admission of the findings into evidence does not involve the application of the principles governing issue estoppel. In B & J (2009) FamCAFC 103, a case where as here a trial court was called upon to determine issues of unacceptable risk following the previous determination of such matters, the Full Court at [93] cited with approval a previous Full Court case of Schorel v Schorel (1990) FLC 92-144 where it had said (at 78,004):Issue estoppel has at best a very limited application in family law proceedings, for reasons referred to in the above cases. Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children. The Court has a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence. Identifying (at [94]) from Carl Zeis Stiftung v Rayner and Keeler Ltd (No 2) (1967) 1 AC 853 that the overriding consideration in the application of an issue estoppel is that it be applied to work justice, the Full Court, however, did not reject the notion that the parties may be considered bound by a previous finding:95. However, we would also emphasise that it should not be thought that every inconvenient finding of fact can be avoided in later proceedings. We can envisage cases where findings of fact from a previous trial become incontrovertible – apart, perhaps, from an appeal with those findings based on the admission of further evidence on appeal. The Full Court then at [103] approved comments made by Hale J in the English case Re B (minors) (care proceedings: evidence) [1997] 2 All ER 29, where her Honour identified that although there is no strict rule of issue estoppel binding parties in children’s cases, the Court “undoubtedly has a discretion as to how the inquiry before it is to be conducted” which extends to declining a full hearing on matters even where they may not be covered by the strict rules of issue estoppel. Hale J identified that reliance on previous findings may be justified where a party may concede that a challenge to the findings would be futile, or dependent upon the identification of the evidence on which the findings were based, or where such a course is justified by the systemic and personal burden of rehearing, or due to the delay that would be caused. The discretion was identified by Hale J to conform to the same principle that governs an issue estoppel, that is it “must be applied to work justice and not injustice”. Accordingly, it should also be recognised that the welfare of a child is “unlikely to be served by relying upon determinations of fact which turn out to have been erroneous”, and the importance of the findings within the proceedings should be considered, such that if they are pivotal there is a greater reason to revisit them. Hale J identified as most important that the Court consider “whether there is any reason to think that a rehearing of the issue will result in any different finding”.

Decision

Reasons for decision

More importantly, as a result of the child-related orders the father will have the full-time care of X. There is little reason to expect that he will receive significant financial support in that responsibility form the mother who has been a long-term recipient of welfare payments. He, however, unlike the mother, has secured employment with reasonable remuneration that, he attests, is sympathetic to the demands that he faces as a parent. Given X’s age, in the light of the relative income earning positions of the parties points to an adjustment of five percent in favour of the father in respect of the s 75(2) factors.Conclusion This leads to a division in favour of the father of 80/20. Whilst the father resisted any division of the property, the period the parties lived together, their various cooperative roles in respect of the care of X and the provision of financial support ending on separation, points to it being just and equitable to make an adjustment. Recognising their contributions and the s 75(2) factors points to it being just and equitable to divide the property in a ratio of 80/20. While the mother sought an adjustment of the superannuation interests along with a cash payment, there was no notice of the trustee of the superannuation fund being provided procedural fairness. Acknowledging that a cash payment and adjustment of superannuation are very different in character, nonetheless the appropriate manner of dealing with the inability to adjust the superannuation is to further adjust the cash payment to the mother. Accordingly, taking the total pool inclusive of superannuation to be approximately $600,000, a twenty percent division to the mother equates to a total of $120,000, of which the mother currently holds approximately $9,000 in cash, chattels and superannuation. A further adjustment of $111,000 ought to therefore be made to the mother. A remaining question persists as to whether to accede to the father’s oral application in the event that an adjustment was made in favour of the mother to stay such payment pending a costs application to be made by the father, on the basis that he will seek that any costs award receive priority over the mother’s other creditors. This is a matter that he conceded will require those creditors to be placed on notice of such an attempt. Rather than simply directing a stay, which would provide little certainty as to the pathway the matter may take, I will order that the payment to the mother be contingent upon the resolution of such costs application, provided that application is made within 28 days of this judgment. Failure to do so will see the funds being paid out, undoubtedly in accordance with the deed that the mother has entered into with her creditors, whilst the making of the application will be on terms that will place those creditors on notice. Should the father not succeed in his priority claim then he may be at risk of costs being awarded in favour of the third-party creditors.

Ratio Decidendi

Legal Principle Established

Like Judge Tonkin, I do not accept that the father engaged in physical abuse of the mother, nor financial control of the mother. Without doubting that theirs was a difficult relationship I do not accept that the father behaved in a controlling manner toward the father.Post separation The father applied to the Federal Circuit Court on 10 June 2015, seeking to spend time with X. At that stage he had spent no time with X since separation. Orders were subsequently made in April 2016 for supervised time to take place in Suburb AA. By this time the father had not spent time with X for approximately fourteen months. The mother however said to the father that she could not afford the travel associated with that arrangement and so further orders were then made on 23 August 2016 for supervised time to occur in Canberra, closer to the mother’s home. It is from the contact between X and the father post separation that the bulk of the allegations of risk are made, however it is also post separation that other allegations were made by the mother about the father from during the relationship, including the allegation that he had sexually assaulted her during the relationship. The various claims that emerged following separation, as relied upon by the mother in her case outline document are set out below, generally in the order in which the allegations were received and recorded. The mother firstly relied upon what she described in her case outline as her report of “X withdrawn and uncommunicative after supervised contact”. The mother identified this as having been reported on 10 October 2016. It is evidenced in the 30 April 2020 CYPS Assessment chronology. It is in the following terms:A Child Concern Report was received in respect of X and Y. The report raised concerns X was withdrawn and non-communicative after returning from supervised contact with her father.[14] [14] Annexures to the affidavit of the father filed 20 August 2021, p. 248. This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit. Accordingly it is produced absent any evidence supporting the chronology entry, and does not even identify who might have observed what was reported. The mother is not identified as the observer. The mere production of a comment or observation that is contained in a child concern report, particularly absent the identification of a source, and reduced to a summary factual assertion, does not lend probative weight to the notion that the father presents a risk to X. The general nature of the assertion, the ambiguity inherent in such an observation, and the inability to discern who has observed or reported such means that it is inadequate to permit the reasonable drawing of any inference. This, it will be seen, was a pattern repeated in respect of many of the matters relied upon by the mother. The father filed a Contravention Applications alleging the mother failed to allow X to spend time with him on 11 October 2016, 25 October 2016 and 8 November 2016. These were dismissed.