Wednesday, July 6, 2011

Recent Family Law Cases - July 2011

Financial agreement – Rectification of “technical” errors available under ss 90B, C or D but not s 90G
In Senior & Anderson [2011] FamCAFC 129 the majority of the Full Court allowed an appeal against Young J’s order which rectified “technical” errors in a financial agreement (made under s 90C instead of s 90D, and the lawyers’ certificates referring to neither section and misstating the parties’ names). Strickland J at paras 106 and 121 held that “the [equitable] doctrine of rectification can apply … to [an] agreement and to the requirements of s 90B, s 90C and s 90D” but that “a financial agreement can only be binding [under s 90G] if, and only if, each … of the requirements of the Act to achieve that status are met”. The case was remitted for determination as to whether the court should exercise its discretion under s 90G(1A) and (1B) to declare the agreement binding notwithstanding non-compliance with s 90G(1).

 (From the Editors of The Family Law Book)

Property – Consent order created a lease to husband – Trial judge’s later order amending lease set aside
In Lenova [2011] FamCAFC 114 consent property orders provided for the creation of a lease of land by the husband. Without an appeal or s 79A application, Young J granted the wife’s application for variation of the lease. The husband appealed, arguing that the trial judge had no power to vary a final order. The Full Court agreed, ruling that the variation was “proprietary” and not a “consequential” change of an order that “failed to cover … eventualities”. 

(From the Editors of The Family Law Book)

Property – Initial contribution adjustment despite long marriage
In Manolis (No. 2) [2011] FamCAFC 105 a 26 year marriage produced assets of $4 million. The husband’s pre-marital contribution of $40,000 from the sale of his business was used to establish another business which, four years into the marriage, was sold at a profit of $800,000. The Full Court allowed an appeal from but made the same contributions assessment as Demack FM, saying at para 71:

“In our view the husband’s contributions were greater than that of the wife by reason of the business at the time of the marriage which provided a ‘springboard’ for the later businesses. We would assess … contributions … as 55 per cent in favour of the husband.”

(From the Editors of The Family Law Book)
Property – Trust controlled by husband’s father not a sham – Trust assets excluded from pool
In Keach & Keach and Ors [2011] FamCA 192 at paras 172.21-172.22 the wife failed to demonstrate to Strickland J that a discretionary trust established and controlled by the husband’s father to “keep the assets in the ‘family’ and to ensure that his four children benefited through the trusts”, was a sham to conceal the husband’s true ownership of trust assets.

(From the Editors of The Family Law Book)

Property – Post-separation high earnings (and donations) not added back – Contingent tax debt excluded
In Shimizu & Tanner [2011] FamCA 271 the parties separated in 2005 after an eight year marriage. The wife argued that $600,000 (being the husband’s post-separation income less assets bought and his reasonable living expenses) and his charitable donations ($148,000) should be added back to the pool. Bryant CJ disagreed, saying at para 76:

“First, the husband did not dissipate an existing asset. Far from it. He created assets which added to the pool from his income. Secondly, [he] was under no legal obligation to provide other funds from his income to the wife and B … beyond what he was already contributing voluntarily. Thirdly, I am not satisfied that the figures put forward by the wife are in any event reliable as to what shortfall might have been provable between expenditure and income.”

Bryant CJ noted the donations as represening just 0.04 per cent of the husband’s gross income and excluded an overseas tax liability as “the tax expert said that he was not able to conclusively determine [the husband’s status as] … a permanent or non-permanent resident”.

(From the Editors of The Family Law Book)

Procedure – Order for production of family counselling documents
In Harkiss & Beamish [2011] FMCAfam 527 at paras 2-9 Altobelli FM ordered UnitingCare Unifam to produce under subpoena documents relating to family counselling where neither party objected and both consented to disclosure. 

(From the Editors of The Family Law Book)

Property – Rent-free accommodation – Wife’s inheritance
In Ross & Audley [2011] FMCAfam 280 the parties had been married for 22 years, had four children and another child. Most of the $3.15m pool came from the wife’s inheritance from her mother’s estate four years before separation. The family also lived rent-free courtesy of the mother. Bender FM made an adjustment of 25 per cent in the wife’s favour for contributions. 

(From the Editors of The Family Law Book)

*Extracted from THE FAMILY LAW BOOK
ISSUE NUMBER 26| July 2011

1 comment:

  1. cases mentioned above are helpful in understanding how the cases can be solved.

    Sylvia Miller
    Divorce Help solutions