Should an inference be made against a party that fails to call a witness?

In the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.

The so called "rule in Jones and Dunkel" allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party's case.

In Masoud and Masoud the Full Court, accepting the rule, noted however that "it is important to observe that the operation of the "rule" is not a substitute for evidence".

In this case the wife had given evidence, in both an affidavit and in person before the Court, as to the existence of a loan, as did her father in an affidavit. That evidence was supported by a loan agreement that had been produced to the Court. No evidence was either led by the husband or elicited in cross-examination of the wife to cast doubt on the evidence of the wife and her father.

In the particular circumstances of the case the Court found that the trial Judge had not fallen into error in not making an inference against the wife. 

Failing to disclose a document in property division proceedings

Among the many grounds of appeal the husband argued in the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the husband failed to disclose certain financial documents, namely in relation to a family trust that he was a discretionary beneficiary of.

The husband mentioned in his evidence that he was a discretionary beneficiary of the trust, but did not produce any documents. Under cross examination he said he had asked family members for the documents but they refused to provide them to him.

Rule 13.01 of the Family Law Rules 2004 imposes a general duty to give full and frank disclosure but Rule 13.07 narrows the duty to "each document that is or has been in the possession, or under the control of the party".

The Full Court referred to the case of Schweitzer & Schweitzer where it was said that a beneficiary of a discretionary trust "is entitled to access to the financial documents of the trustees only for the purpose of ascertaining that there is due administration [of the trust]".  

Therefore, the Full Court concluded, the documents could not be said to be in the requisite possession or control of the husband.

Having succeeded on this ground of appeal (among others) the Full Court concluded that there was a flawed foundation for the trial judge's Orders. The matter will now be re-determined. 

Increase to Court fees

As part of the biennial fee review the fees payable in the Family Court and the Federal Circuit Court will increase from 1 July 2016.

Some of the increased fees are:

• Application for Consent Orders - $160 (up from $155)
• Application for Divorce - $865 (up from $845) and 
• Setting down for hearing fee in the Family Court - $825 (up from $805).

Application for Divorce

With the introduction of the Family Law Act in 1975 the principal of no-fault divorce was established in Australia.

This means that when an Application for Divorce is made the Court does not consider why the marriage ended. The only consideration is that the marriage has broken down irretrievably - there is no reasonable likelihood of the parties reconciling their relationship.  

How does the Court determine that the marriage has broken down irretrievably? The criteria used is that the parties have been separated for 12 months and one day.

If the Court is satisfied that the parties have been separated for 12 months and one day the Application will be granted.

There can sometimes be a dispute about the date of separation - and hence if the 12 months and one day has occurred - and it can be necessary for evidence to be adduced to satisfy the Court of the date of separation.

Indeed, that the required 12 months and one day has not passed is one of only two grounds where an Application for Divorce can be opposed by the other party (the other is that the Court does not have jurisdiction). If a Response is filed refuting the date of separation the Court will consider the matter and determine if the Divorce Order will be made. 

Varying existing Court Order's about parenting matters

The Family Law Courts have a clear principle that a Court should only hear an application to vary an earlier Order if it is satisfied that there is some changed circumstance which would justify such a serious step. This is known as the "rule in Rice and Aspland".

The rule in Rice and Asplund applies whether the earlier orders were made by consent of the parties or after a contested hearing before the Court.

The principle underpinning the rule in Rice and Asplund is that there should be an end to litigation, that is the avoidance of endless litigation between parents examining again and again the same issues and arrangements.

However, there are instances where it is necessary for a Court to revisit earlier Orders. While there is no exhaustive list of what constitutes a changed circumstance in previous cases this has included psychological and physical changes in the child, evidence of violence towards the child, a parent's recovery from former mental health issues, a proposed relocation by one parent and a parent's new stable relationship or marriage.

Should one parent bring an application to revisit earlier Orders and a Court be satisfied that there is a changed circumstance than the matter is considered again by the Court and new Orders may be made. 

Changes to surrogacy laws

In December 2015 the Federal Parliament passed the Family Law Amendment (Arbitration and Other Measures) Rule 2015.  These amendments to the Family Law Act are in part in relation to how the Family Court is determine surrogacy proceedings, and in particular the evidence that is required to presented to the Court in such proceedings.

The amendments provide that evidence is to be adduced to the Court from the applicants as their personal circumstances, from the birth mother as to her personal circumstance and in particular whether she provided informed consent and whether she received counselling and legal advice and evidence is also required in relation to the identity of the child including in relation to citizenship. A copy of any surrogacy agreement is also to be presented.

It is also necessary for evidence as to the relevant law in the child's country of birth to be provided to the Court. 

Child support agreement between Australia and New Zealand

In 2000 an agreement was signed between Australia and New Zealand which sought to facilitate the recognition and enforcement of child support decisions between the two countries.

A fundamental premise of the agreement is that while child support assessments, liabilities and orders of one country can be subject to applications in the other country, any orders made in the second country can only become binding if endorsed by the originating country.

The recent decision by the Full Court of the Family Court in Child Support Registrar & Higgins [2016] confirmed this.

In this matter the mother, a New Zealander, had obtained a child support assessment from the relevant New Zealand agency. The Australian father subsequently sought an order from the Federal Circuit Court here that the assessment be dismissed or that it was unenforceable. Orders were made by the Court stopping the enforcement of the assessment. The New Zealand agency advised the father that the orders were not acceptable as only a New Zealand court could make such a final order. The New Zealand agency subsequently lodged the assessment with the Australian agency for collection. The Australian agency then became involved in proceedings and appealed the orders that had been made on the basis that they were unenforceable.

The Appeal was wholly successful and the Court confirmed the principles of the 2000 agreement.