Tuesday, April 5, 2011

Family Law Cases: January 2011

Property – Contributions during long separation

In Polonius & York [2010] FamCAFC 228 a couple with two children were together for 22 years, then separated under the one roof for 10 years whereupon the wife moved out. At separation their assets were exceeded by the husband’s debt to creditors. By the time of the hearing, the wife had acquired assets valued at $870,000. The Full Court held at para 92 that in long separation cases an asset by asset approach can be appropriate.

Property – Property orders set aside

In Hogan [2010] FMCAfam 1255 Neville FM set aside a consent property order due to a finding that the husband had harassed the wife into consenting, also considering her “manifestly inadequate” settlement.

In Simon & Michel [2010] FMCAfam 1055 Burchardt FM set aside an order as the husband had failed to disclose his new employment, with salary package of $200,000. Burchardt FM made a further splitting order in favour of the wife.
Property – Asset pool to wife

In Walmsley (No. 5) [2010] FamCA 1034 the wife’s property proceedings were undefended. Granting the wife’s application for the entire asset pool ($445,000) except the husband’s car, Dawe J at para 81 agreed that since separation, the wife had “provided for the husband in a manner which far exceed[ed] his contributions during the marriage.” Dawe J noted the husband’s cessation of child support payments, child support arrears, his debt for legal fees, gambling debts and his share of tax losses on an investment property, concluding at para 100:

“The husband has already received significant financial benefits therefore the orders which will not entitle the husband to any further share of the asset pool are just and equitable in all the circumstances.”


Property – Interest in family trust – Asset by asset approach
In Ogden [2010] FMCAfam 865 at paras 82, 119-120, 126-128 Bender FM held that the wife’s interest in a family trust was “property” and took an asset by asset approach, finding that the husband had made no contribution in respect of that interest.


Children – Dispute as to choice of school

In Dreyfus & Kearney [2010] FamCA 1054 a dispute as to choice of school was resolved by Ryan J who required the child to be enrolled in the school chosen by the child from two schools the mother allowed him to choose from. 

Relevant were the mother’s payment of all school fees, the father’s failure to pay child support or school fees and the likelihood of future default. 

In Whitton and Anor (No. 2) [2010] Fam CA 1119 Austin J ordered that the children attend the same school, near the home of the paternal grandmother who had been granted equal shared parental responsibility. Austin J held that the children’s best interests were the paramount consideration, not the mother’s freedom to enrol the children near to where she might decide to live.


Children – Parenting plan inadmissible
In Roux & Herman [2010] FMCAfam 1369 Riethmuller FM held that s 10J as to communications in FDR being inadmissible did not extend to an agreement reached at the end of that process. Riethmuller FM held, however, that the father’s allegation that he was exhausted after four hours of FDR and had been coerced into signing was prima facie evidence of disqualifying factors under s 63C(1A), which could not be tested as to the surrounding circumstances of the agreement given the operation of s 10J

Costs – Costs agreement 

In McMurphy & G and G (A law firm) [2010] FamCA 1032 at paras 164-177 Cleary J set aside a costs agreement for not being fair and reasonable.

In Dwyer & Brent & Anor [2010] FMCAfam 1224 Riethmuller FM ordered the mother’s former lawyer to pay costs fixed at $3,300 being the cost of a hearing which had been lengthened by a Notice of Risk of Family Violence filed by the lawyer alleging that the father “physically beat” the parties’ child, based on instructions that the father had smacked the child and that such physical discipline was not appropriate.




Costs – Lawyer ordered to pay costs

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