Tuesday, April 5, 2011

Family Law Cases : March 2011

Children – Stay of overseas relocation refused

In Sheldon & Weir (Stay Application) [2011] FamCAFC 5 Ryan J allowed a mother to relocate with a child to Ireland, her country of origin. Ryan J refused the father’s application for a stay of the order pending appeal. The Full Court approved Ryan J’s reasons for refusing a stay, being that the father could not be relied on to co-operate for an expedited hearing having regard to his history of non-compliance with undertakings and orders; the unsatisfactory situation of the child and mother; the “threefold increase in the mother’s medication because of the deterioration in her emotional and psychological wellbeing”; evidence that “the child is struggling”; the mother’s evidence that she would return the child if ordered and her provision of security.

Children – Leave to call additional expert refused
In Atkins & Caldwell & Anor [2011] FMCAfam 74 Neville FM dismissed the mother’s application for leave to call an expert in “attachment theory” who had prepared a report two years previously but, unlike the current family consultant, had not seen the parties or the child since then.

Property – $4.5m hidden by husband overseas

In Porto (No. 3) [2010] FamCA 1145 Dessau J found that a husband had fraudulently taken $4.5m (out of an asset pool of $4.8m) to Portugal, his country of origin, and hidden it. The parties agreeing to an equal division of assets, Dessau J awarded the wife the available assets in Australia, a further $2m “to reflect 50% of the [total] assets” to be paid within 21 days, and an injunction (and Watch List order) restraining the husband from leaving Australia until full payment.


Property – Interim property order


In Gordons & Hasse [2010] FamCA 1162 Dawe J applied Strahan (Interim Property Orders) [2009] FamCAFC 166 (FC) in granting the wife’s application for an interim order that she be paid $250,000 from the proceeds of sale of the former marital home, saying that the payment would be “substantially less than the amount the husband is proposing that the wife receive by way of final property settlement.” Dawe J dismissed the husband’s application for the same order in his favour, noting that as “[he] retains the business … his financial circumstances are not comparable” to those of the wife.

Property – Declaration – Promissory estoppel


In Wheeldon and Ors [2011] FamCA 40 the wife sought a declaration that the husband’s parents held a property on trust for the husband and orders for transfers from them to him and from him to her as to a half interest. Before their marriage the husband’s father told the parties “they could live at the … property if they paid its rates”. They raised two children there, living in the property for 26 years until their separation. Fowler J rejected the wife’s claim for equitable relief “by operation of estoppel, either proprietary or promissory, or estoppel by encouragement”, accepting the “unequivocal” denials of her in-laws of conversations which promised a gift of the property and finding that she and her husband “had permission to occupy the property and no more”.

Property – Unvested property – Reinstatement of bankrupt

In Pacelli & Hopkinson & Anor [2010] FMCAfam 1248, following a property settlement between the wife and the trustee of the husband’s estate, Burnett FM ordered that the bankrupt husband be reinstated to the proceedings for the purpose of an application to set aside the consent order enabling him to claim a superannuation fund valued at $13,000 which had not been disclosed in the parties’ asset pool and was exempt from distribution among his creditors.

Nullity – Marriage solemnised in India under duress

In Kreet & Sampir [2011] FamCA 22 Cronin J declared void a marriage solemnised in India on the ground that the wife’s consent was obtained by duress within the meaning of s 23B of the Marriage Act 1961 (Cth). Her parents opposed her wish to marry a Mr U she had met in Australia. The court found that after assaults by the wife’s father on the wife her parents took her to India on the pretext of marrying Mr U there, but on arrival her passport was taken, she was refused permission to speak to Mr U, “then introduced [to] the man who was to become her husband”. 
Cronin J found that the wife was subjected to threats made earlier by her father to Mr U “to kidnap and rape [her] mother and sisters”. 

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