Tuesday, April 5, 2011

Family Law Cases: April 2011

Children – Rejection of views of child and expert in error

In Barningham [2011] FamCAFC 12 the Full Court (Bryant CJ, Finn and Boland JJ) held that Demack FM was in error to ignore the views of an eight year old child and the recommendations of a family consultant (Ms B). The Full Court said at paras 82-87:

“ … in finding that there was nothing … to indicate that her maturity was anything more than average, she ignored the evidence of Ms B that E did appear to be expressing mature views. ( … ) [T]he report writer’s evidence … was that although [E’s] views were one part of her conclusion that it would be in E’s best interests to be with her father, it was only one element of a conclusion that encompassed other factors”.

Children – Mother’s refusal to attend psychiatric assessment

In Salmon & Marin [2010] FamCA 1248, a parenting case where the parties were ordered to attend for psychiatric assessment, the mother (from the bar table) refused, saying she had “no need to”. O’Reilly J at para 11 said:

“If the mother does not attend, I will proceed pursuant to [FLR] 11.02(2) to dismiss her parenting proceedings on [date], without more, unless in lieu of compliance with the … order the mother presents a report by a psychiatrist relating to recent psychiatric assessment.”

Children – Same sex couple – Child’s view

In Aaron [2011] FMCAfam 80 children of 5 and 7 were conceived by the artificial insemination of same sex partners using donor sperm. The children, biological cousins, had known each other as sisters during the nine year cohabitation of their parents who “ha[d] been engaged in a high conflict low communication relationship”. Turner FM considered the older child’s remark to the report writer that “fifty/fifty will stop them fighting” in the context of the parties’ description of the child as “a child who wants to please, saying things that she thinks might make the other person happy”. Turner FM made an order for the children to live with the respondent and spend three nights a fortnight with the applicant, with holiday and other time.

Property – Initial financial contributions

In Davida [2011] FamCAFC 38 the Full Court (Finn, O’Ryan and Ainslie-Wallace JJ) upheld an appeal against a property order made by Coates FM. There were two children of a 14 year marriage, where the husband and wife had full-time and part-time work (earning $50,000 and $38,000) respectively, and net assets of $658,000. The Full Court found that the husband’s pre-marital assets, worth $150,00 at separation, had grown by the final hearing to $560,00 or 85% of the pool. Contributions were reassessed from equal to 60% in the husband’s favour. The Court reduced Coates FM’s adjustment under s 75(2) to 5% in the wife’s favour, saying at para 43:

“ … we consider that the adjustment was overly generous to the wife based as it was only on the care of the children [who spent five nights a fortnight with the husband during school term and half the holidays] … ”

Property – Deceased party’s executor refused a stay

In Capelinski & Patton [2010] FamCA 1243 O’Reilly J refused an application by the executor of the de facto husband’s estate for a stay until the outcome of a family provision application by the deceased’s son, saying at para 29:

“ … until Ms Capelinski’s proceedings have been determined here, that is, it be determined what, if any, property she should have, and what, if any, the deceased’s estate should have, the Supreme Court of Queensland cannot know the size of the deceased’s estate in order to adjudge whether, having regard to it and other bequests, there was inadequate provision for the claimants.”

Financial agreement – Pre-nuptial agreement upheld

In Wallace & Stelzer [2011] FamCA 54 a previously married “successful businessman” with children met a dancer. They married after living together for several years. Before marrying they entered into a financial agreement by which, after “robust negotiations", the husband agreed to pay the wife $3.25 million if their marriage broke down within four years. The marriage lasted two years. In a review of the relevant law and evidence, Benjamin J rejected the husband’s claims that the agreement was not binding as he had received inadequate legal advice; and that either the 2010 amendment of the FLA was constitutionally invalid or the agreement should be set aside due to fraudulent inducement and unconscionable conduct. The agreement was declared enforceable and the husband was ordered to pay the sum due with interest.

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