Australian Feminist Judgments Project
Family law

Index

Case Keywords
In the marriage of Doherty (1996) FLC 92-652, Full Family Court: Fogarty, Baker and Hannon JJ Property division; contributions; domestic violence
AMS v AIF [1999] HCA 26 (17 June 1999), High Court of Australia: Kirby J Relocation
T v S [2001] FamCA 1147 (29 October 2001), Full Family Court: Nicholson CJ Domestic violence; unrepresented litigant; unfair trial
U v U [2002] HCA 36 (5 September 2002), High Court of Australia: Gaudron and Kirby JJ Relocation
T v N [2003] FamCA 1129 (4 November 2003), Family Court of Australia: Moore J Consent order; domestic violence
Giller v Procopets [2008] VSCA 236 (10 December 2008), Victorian Court of Appeal: Neave JA De facto property division; domestic violence
H v Minister for Immigration and Citizenship [2010] FCAFC 119 (15 September 2010), Full Federal Court: Moore, Tracey and Kenny JJ Definition of ‘parent’ under Australian Citizenship Act 2007 (Cth)
Apostolidis v Kalenik [2011] VSCA 307 (13 October 2011), Victorian Court of Appeal: Tate, Nettle and Ashley JJA De facto property division; non-financial contributions
State Trustees Ltd v Whitehead [2012] VSCA 274 (16 November 2012), Victorian Court of Appeal: Neave JA Testator’s family maintenance; intimate companion

 

Cases

In the marriage of Doherty (1996) FLC 92-652, Full Family Court: Fogarty, Baker and Hannon JJ

Summary

The parties brought an application for the distribution of property interests following the breakdown of their marriage. The parties had two children together and a child of the wife’s also lived with them. There was a short period during their relationship when the husband had been violent and aggressive to the wife. The trial judge (Rourke J) found the parties’ contributions to be equal, noting that the wife’s contributions as a homemaker and parent would have increased during the period of domestic violence. An appeal by the husband was dismissed by the Court.

Feminist judgment

The Family Court had previously considered domestic violence to be irrelevant to the issue of property division under the regime of ‘no fault’ divorce. In this case, however, the Full Court adopted the argument made by feminist academic Juliet Behrens’ that domestic violence constitutes a ‘negative contribution’ to the welfare of the family, and could therefore be taken into account in assessing the parties’ respective contribuitons for purposes of property division. (See Juliet Behrens, 'Domestic Violence and Property Adjustment: A Critique of "No-Fault" Discourse' (1993) 7 Australian Journal of Family Law 9.)

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AMS v AIF [1999] HCA 26 (17 June 1999), High Court of Australia: Kirby J

Summary

The parties sought guardianship and custody orders in respect of their child. It was held at trial that the mother would have sole custody of the child with the father being permitted ‘liberal access’ to the child. The mother made an application to the Court to relocate within Australia. The judge rejected this application and held that the mother must present ‘compelling reasons’ to justify moving the child within Australia such that the father’s access would be more difficult. The majority of the High Court held that the trial judge erred by requiring the mother to present ‘compelling reasons’ to justify the relocation of the child.

Feminist judgment

Kirby J noted that since the great majority of custodial parents are women, restraints on relocation have an adverse impact on women and are likely to have the effect of constraining their freedom of movement. It was necessary to consider relocation cases within this context, rather than viewing the question of the best interests of the child “in the abstract, separate from the circumstances of the parent with whom the child resides”.

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T v S [2001] FamCA 1147 (29 October 2001), Full Family Court: Nicholson CJ

Summary

The appellant was a victim of severe domestic violence. She was unrepresented at trial and as a result was unable effectively to present her own case or to challenge the evidence against her. The trial judge made a finding against the appellant and dismissed her evidence in support of the domestic violence claim. The Full Court granted leave to adduce further evidence and upheld her appeal.

Feminist judgment

Nicholson CJ gave additional reasons for judgment, condemning the failure of the legal aid system to support women suffering serious domestic violence, and arguing that denial of legal aid or representation to women in these circumstances is a breach of Australia’s international obligations under CEDAW.

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U v U [2002] HCA 36 (5 September 2002), High Court of Australia: Gaudron and Kirby JJ

Summary

This was a relocation case in which the mother had been refused permission to move back to India with the child to live with her family. The father had proposed that the child live with him or with the mother in Australia. The mother conceded in cross examination that if she was refused permission to take the child to India she would continue to live with the child in Australia, and this is what the trial judge ordered.

Feminist judgment

Gaudron J noted that there had been no exploration of the possibility of the father returning to India in order to have regular contact with the child, which seemed to her to be “explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not”. She also noted that stereotypical views as to the proper role of a mother were still pervasive and would always operate to the forensic disadvantage of mothers, who would be seen as either selfish (if they opted for relocation without the child) or not really serious about relocation (if they opted to remain with the child wherever the child resided).

Kirby J again observed (as in AMS v AIF above) that restraining residence parents from relocating had an adverse impact on women’s freedom of movement as opposed to men’s. He set out the full effects of this restraint, and urged that family courts “should not ignore the disproportionate burden typically cast upon women by being effectively immobilised as the custodial/residential parent”. He added:

“Today contact does not have to be exclusively physical or face to face if the cost of insisting on such physical contact is to impose serious deprivations upon the human rights of custodial parents, who are mostly women. To take the contrary view is to entrench gendered social and economic consequences of caregiving upon women in a way that is contrary to the Convention on the Elimination of All Forms of Discrimination against Women to which Australia is a signatory. That Convention requires that such discrimination and inequality should be eliminated from the law of this country.”

He also cited feminist literature: Patricia Easteal, Juliet Behrens and Lisa Young, ‘Relocation Decisions in Canberra and Perth: A Blurry Picture’ (2000) 14 Australian Journal of Family Law 234.

Jonathan Crowe writes an alternative feminist judgment in U v U in the book of Australian Feminist Judgments.

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T v N [2003] FamCA 1129 (4 November 2003), Family Court of Australia: Moore J

Summary

These proceedings were initiated by the father who sought contact with his two children. The marriage had dissolved when the mother left with the two children without notice to the father of their future whereabouts. The father brought an application for contact and an interim order for supervised contact was made. After a given period, this contact was to be unsupervised. One month into the father having unsupervised periods of contact with the children, the mother sought an order that all contact be suspended. The mother alleged that the father had a history of drug abuse and had previously been violent towards her and the eldest child. The parties were each represented and a separate representative was appointed for the children. After negotiations, the parties submitted consent orders to the Court for approval that contained inter alia provisions for initially supervised, and later unsupervised, periods of contact subject to the father undertaking various commitments in respect of his behaviour.

Feminist judgment

Moore J refused to make the consent orders for unsupervised contact on the basis that they did not adequately address the risk the father presented to the children were the allegations of domestic violence established. She found that the Court had a duty to make orders in the best interests of the children, despite the parties having reached an agreement.

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Giller v Procopets [2008] VSCA 236 (10 December 2008), Victorian Court of Appeal: Neave JA

Summary

The plaintiff and defendant were in a de facto relationship and lived with their twin sons and the plaintiff’s daughter from a previous relationship. Mr Procopets assaulted Ms Giller on five occasions, causing her to become fearful. The couple separated but continued having a sexual relationship. The relationship eventually broke down and he plaintiff initiated proceedings claiming, inter alia, a property interest under Victoria’s de facto property legislation. The trial judge took a dim view of the credibility of both parties and dismissed most of the plaintiff’s claims

Feminist judgment

The Court of Appeal made a substantial property award in the plaintiff’s favour. Neave JA’s judgment includes interpretation of the Property Law Act 1958 (Vic) Part IX, discussion of the nature of the plaintiff’s contributions to the welfare of the family including post-separation, the need to ensure contributions as a homemaker and primary carer of children are not undervalued, and the need to take into account the fact that the plaintiff’s contributions were rendered more onerous by virtue of the defendant’s violence.

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H v Minister for Immigration and Citizenship [2010] FCAFC 119 (15 September 2010), Full Federal Court: Moore, Tracey and Kenny JJ

Summary

This case concerned appeals from two decisions of the Administrative Appeals Tribunal (AAT). The issue central to both appeals was whether the definition of ‘parent’ under the Australian Citizenship Act 2007 (Cth) was limited to a biological parent. The Act contains provisions as to when a person may be eligible for Australian citizenship, including s 16(2) which states a person is eligible if “a parent of the person was an Australian citizen at the time of the birth”.

Feminist judgment

The Court allowed one of the appeals and overruled the decision of the Minister for Immigration and Citizenship to refuse citizenship to the applicant, H, on the basis that H’s Australian-born father was not his biological father. The second appeal was sought by the Minister for Immigration and Citizenship and was in respect of a decision made by the AAT allowing a person to claim citizenship through either a biological or non-biological parent. The Court dismissed this second appeal, finding that the word ‘parent’ under the Act should be construed according to its ordinary meaning, which recognised both biological and non-biological parentage.

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Apostolidis v Kalenik [2011] VSCA 307 (13 October 2011), Victorian Court of Appeal: Tate, Nettle and Ashley JJA

Summary

The Victorian Supreme Court determined that the appellant was to pay the respondent a given amount by way of an adjustment in the property interests of both parties following to the dissolution of their de facto relationship. The appellant appealed and the respondent cross-appealed on the ground that the amount awarded to the respondent by way of adjustment was not ‘just and equitable’. The appellant argued that the amount awarded to the respondent was excessive, while the respondent argued that the amount awarded was insufficient due, in particular, to the trial judge undervaluing her contributions to the appellant’s business.

Feminist judgment

The amount awarded to the respondent was substantially increased on the basis that the trial judge had failed to give adequate consideration to the respondent’s contributions to the business, both directly and as a homemaker enabling the respondent to focus on the business.

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State Trustees Ltd v Whitehead [2012] VSCA 274 (16 November 2012), Victorian Court of Appeal: Neave JA

Summary

The executor of the deceased’s estate sought to appeal orders made by the Victorian Supreme Court for the provision of a sum of money to the deceased’s close friend and sexual partner, Kim Whitehead, and her son. The deceased had never been married and or had children. He had been in a close relationship with Ms Whitehead for several years prior to his death. The deceased was also very close to Ms Whitehead’s son, although he was not the child’s father. The deceased had made a will some 30 years prior to his death. His estate at the time of this will was modest but it increased substantially prior to his death. Ms Whitehead claimed that the deceased had promised to provide for herself and her son. The trial judge made orders for a sum of money from the deceased’s estate to be given to Ms Whitehead and her son. State Trustees, the executor of the deceased’s estate, sought leave to appeal in relation to both the judge’s characterization of the relationship between the deceased and Ms Whitehead, and the amounts awarded to Ms Whitehead and her son.

Feminist judgment

Neave JA (with whom Tate JA and Davies AJA agreed) rejected all grounds of appeal. Her judgment recognises the diversity of modern family forms and the fact that care responsibilities may extend beyond traditional family structures.

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