Wednesday, June 1, 2011

Recent Family Court Decisions, June 2011

Property – Business valuation – Conflicting expert evidence
In Pitt [2011] FamCA 172 expert valuations of the parties’ shareholding in a company by a chartered accountant (the court appointed single expert) and an accountant differed by $6 million. Rose J at para 157 cited the cases on the court’s approach to conflicting expert evidence, saying:

“I am not required to provide detailed reasons for preferring one expert witness to the other based upon a detailed analysis of the evidence so far as it conflicts. Rather … the preference of one expert witness to the other means the adoption of the reasoning of the former compared to [that of] the latter.”

Rose J preferred the evidence of the court appointed expert having regard to her appointment by consent, her admitted qualifications and experience as an expert witness, her “detailed and considered reports which applied accepted methodology” and her reasoning, in particular as to why a “non-binding indicative offer” was of no relevance to the calculation of value.

(From the Editors of The Family Law Book)

Married man’s 17 year affair not a “de facto relationship”

In Jonah & White [2011] FamCA 221 the applicant who had had a secret intimate relationship with a married family man for 17 years applied under s 90RD for a declaration that theirs was a “de facto relationship” within the meaning of s 4AA of the FLA. The respondent travelled overseas with the applicant, paying her $24,000 to help her buy a home and $2,000 monthly, increasing to $2,500 then $3,000 a month. Murphy J at paras 34-66 examined the legislation and Mushin J’s review of the case law in Moby & Schulter [2010] FamCA 748 and at paras 58-60 said this:

“In my opinion, the key to [the s 4AA] definition is the manifestation of a relationship where ‘the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis’ … the manifestation of ‘coupledom’ …”

Murphy J dismissed the application, also rejecting (paras 65-66) the respondent’s argument that “exclusivity” was necessary for a de facto relationship to exist.

See also Barry & Dalrymple [2010] FamCA 1271 where a “convenient commercial [live-in] arrangement” 
for 3.5 years between an employed carer/personal assistant and a disabled respondent was held not to be a “de facto relationship”. 

(From the Editors of The Family Law Book)

Property – $3 million lottery win

In Kneen & Crockford [2011] FMCAfam 372 a childless couple began a de facto relationship in Sierra Leone and continued it, with some interruptions, in Australia. Some weeks after a resumption of cohabitation the applicant bought a lottery ticket and won $3 million. They collected and banked the money in an account managed by the respondent. Lindsay FM, applying Zyk (1995) FLC 92-644 (FC) held that the winnings “should be regarded as the joint contribution of the parties”.

(From the Editors of The Family Law Book)

Property – Post-separation family provision award

In Lombard [2011] FMCAfam 339 the husband argued that his award of $150,000 (net after costs) in family provision proceedings brought by him in respect of the estate of his late mother who died two years before separation, which he did not receive until after separation, should not be included in the pool. Phipps FM agreed, citing Bonnici (1992) FLC 92-272 in which the Full Court held that an inheritance received by a party late in the marriage was “property” but that whether it should be treated differently from other property of the parties “must depend upon the circumstances” of the case. Phipps FM applied this statement by the Full Court:

“The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death … or other particular services to protect a property. ( … ) But there was no evidence of this in the present case … Accordingly, we think that … the [money in question] should not be brought into account.” 

(From the Editors of The Family Law Book)

Spousal maintenance – Order until child began school

In Halley [2011] FMCAfam 296 the mother gave evidence of struggling to make ends meet and being unable to obtain permanent work because the child (born in 2006) was still below school age. Scarlett FM granted her spousal maintenance of $120.00 per week until the child began school or attained the age of 6 years, whichever occurred first. 

(From the Editors of The Family Law Book)

* Reproduced from ISSUE NUMBER 25| June 2011|

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