Wednesday, August 3, 2011

Recent Family Law Cases, August 2011

Property – “Highest and best use” valuation – To exclude land bought post-separation was in error
In Bania & Jacopo (No. 2) [2011] FamCAFC 139 the asset pool included a block of land (Lot 10). Six years after separation the husband bought the adjoining Lot 11. The lots were valued individually at $20,000 and $35,000 but, together, at $150,000 for their development potential. Donald FM excluded Lot 11 from the pool as it had been bought after separation, with funds borrowed by the husband without contribution by the wife. In allowing the wife’s appeal, Ainslie-Wallace J reviewed case law as to the valuation principle of “highest and best use” and said at para 45:

“ … although it was the husband who purchased the second lot, it was not in accordance with [the valuer’s] evidence to find that the value of the two lots resulted from the husband’s efforts alone because it ignores the evidence of the obvious impact of Lot 10 in increasing the size of the parcel to make it suitable for residential purposes.”

(From the Editors of The Family Law Book)

Nullity – Consent to marriage obtained by duress
In Robert & Golden [2011] FamCA 443 Rose J granted a decree of nullity as the applicant’s consent to marriage was not freely given but obtained by duress within the meaning of s 23B(1)(d)(i) of the Marriage Act 1961 (Cth), the applicant giving in to the respondent’s ultimatum that she “would not terminate her pregnancy unless [he] married her”. Rose J held on the authorities that:

“... duress does not … need to involve a direct threat of physical violence so long as there is sufficient oppression from whatever source, acting upon a party to vitiate the reality of their consent.”

(From the Editors of The Family Law Book)
Children – Child in care under child welfare law – Parenting application dismissed for want of jurisdiction
In Tanner & Wagner [2011] FMCAfam 663 Scarlett FM dismissed an application for parenting orders by the maternal grandmother of a three year old child who was in the care of a person under s 78 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) for want of jurisdiction, having regard to s 69ZK of the Family Law Act.

(From the Editors of The Family Law Book)

Children – Removal of child welfare authority as party
In Messmer & Cable & Anor [2011] FMCAfam 167 a self-litigant joined the Victorian Department of Human Services as a second respondent, which successfully applied to be removed as a party under FMCR 11.04. O’Sullivan FM relied on Secretary of the Department of Health and Human Services & Ray and Others [2010] FamCAFC 258 where the Full Court held that the court has no power to join the Department as a party without the Secretary’s consent. 

(From the Editors of The Family Law Book)

De facto property – “Substantial contributions” – “Serious injustice”
In Miller & Trent [2011] FMCAfam 324 a self-litigant sought a property order after an alleged 14-16 month de facto relationship, his case being that he had made “substantial contributions” and that a “serious injustice” within the meaning of s 90SB of the FLA would result if an order were not made. His contributions included building work, livestock care, training horses, cooking, driving the respondent’s children to school and negotiating disputes. Coates FM dismissed the application. Coates FM concluded at paras 86-88:

“The concept can probably be more easily understood if for example there were significant financial contributions by the applicant. I could also envisage circumstances which would be regarded as significant non-financial contributions as well but such must be so substantial, that is, more than usual or ordinary that they would stand out as against mere contributions. ( … ) Nor does the applicant address what or how serious injustice would result if I did not make orders in his favour.”

(From the Editors of The Family Law Book)

Child support – SSAT appeal – Procedural fairness
In Crowell & Bodrey (SSAT Appeal) [2011] FMCAfam 275 Bender FM allowed an appeal from the SSAT for not affording the appellant procedural fairness. 

(From the Editors of The Family Law Book)

Child support – Appeal against departure prohibition order dismissed
In Onder & Child Support Registrar and Sari (No. 2) [2011] FMCAfam 430 Monahan FM dismissed an appeal against a departure prohibition order (DPO) made under s 72Q(1) of the Child Support (Registration and Collection) Act 1989. The judgment reviews the relevant law.

(From the Editors of The Family Law Book)

* From Family Law

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