Tuesday, August 30, 2011

Recent Family Law Cases - August 2011

Family Court of Australia Full Court Judgments

Point of law – the parties consented to the disclosure by the appellant, a provider of family counselling services, of communications made during the course of family counselling – the appellant objected to the production of those communications pursuant to a subpoena directed to it – established that s10D(3) did not empower the learned Federal Magistrate to order the appellant to produce the documents referred to in the subpoena – nor did s 69ZX empower the learned Federal Magistrate to order the appellant to produce the documents referred to in the subpoena – whilst s10E(2) of the Act may have empowered the learned Federal Magistrate to make the order, the failure of the subpoena to seek production of documents falling within those provisions deprived the learned Federal Magistrate of that source of power – leave to appeal granted and the appeal allowed – the order requiring production pursuant to the subpoena discharged and the subpoena set aside.


(From the Editors of The Family Law Book)
Parenting – appeal against parenting orders made by trial Judge after lengthy delay in delivery of judgment – in the circumstances, delay in the delivery of the judgment could not of itself enliven appellate intervention – none of the challenges raised by the appellant turn upon delay – trial judge’s judgment nevertheless subjected to closer than usual scrutiny.
Point of law – trial Judge erroneously referred to s65DAA for the purpose of determining the question of parental responsibility without first considering whether the presumption of equal shared parental responsibility applied and whether it was rebutted pursuant s61DA(2) – in circumstances where the evidence raised matters relevant to s61DA(2)(b) trial Judge was obliged to consider that section and make findings with respect to it – although the trial Judge gave considerable attention to the issue of family violence, it cannot be accepted that the trial Judge impliedly considered s61DA(2) and declined to find that the presumption was rebutted – in circumstances where the trial Judge had concluded that equal shared parental responsibility was not in the children’s best interests, the outcome being the same, appellate intervention not enlivened – High Court’s decision in MRR v GRR (2010) 240 CLR 461 did not render departure from the legislative pathway erroneous – Challenge not established.
Procedure – whether the trial Judge’s reference in his reasons to a newspaper editorial not raised with the parties constituted a failure to afford the parties natural justice – whether the trial Judge relied upon, or was influenced by, the editorial in reaching his conclusions as to the child’s use of Ritalin – challenge established.
Discretion – established that the trial Judge’s conclusion with respect to the best interests of the children was vitiated by his failure to have proper regard, or give adequate weight to various provisions of s 60CC. Appeal allowed and the matter remitted for re-hearing.


(From the Editors of The Family Law Book)
Parenting - equal shared parenting - distance of school child attends - capacity to implement - capacity to communicate - impact on child - whether the trial Judge erred at law in making orders that the child spend equal time with each parent - reasonable practicabilities.


(From the Editors of The Family Law Book)
Child support – appeal from an order of a Federal Magistrate declaring the father’s child support income amount by including income received by the father’s new wife – where the father claims procedural fairness was not afforded in circumstances where the proceedings included enforcement as well as departure proceedings – where the father submitted Division 4 of Part 7 of the Child Support (Assessment) Act 1989 (Cth) is beyond constitutional powers – Discussion of Luton v Lessels (2002) 210 CLR 333 – Part 7 Division 3 and 4 of the Child Support (Assessment) Act 1989 (Cth) validly confers judicial powers on the courts – where the mother had required, but failed to seek and obtain, leave to pursue portion of her application to the Court – Full Court had power to grant leave nunc pro tunc – leave granted – discussion of correct approach to application for test for child support departure orders – Federal Magistrate followed the correct approach – where the Federal Magistrate made adverse findings of credit in respect of the father and his new wife – credit findings open to the Federal Magistrate – appeal dismissed.
Child support – where the father sought leave to amend his Notice of Appeal out of time to challenge indemnity costs order – where father had been informed he was required to amend his Notice of Appeal before hearing – no adequate reason to explain the delay – no prospect of success of proposed appeal – leave refused.
Costs – appellant wholly unsuccessful in the appeal – appellant ordered to pay the respondent and the Child Support Registrar’s costs of and incidental to the appeal.


(From the Editors of The Family Law Book)
Leave to appeal – whether leave to appeal is necessary – where leave to appeal is required because orders pursuant to s44(3) of the Family Law Act 1975 (Cth) are interlocutory – leave to appeal granted.
Property – where the Federal Magistrate granted the husband leave under s44(3) of the Family Law Act 1975 (Cth) to institute property proceedings out of time – consideration of the meaning of ‘hardship’ pursuant to ss44(3) and (4) of the Family Law Act 1975 (Cth) – where the Federal Magistrate was in error in the approach he took in considering the application –appeal allowed.
Redetermination – husband’s application for leave to commence proceedings out of time refused.
Costs – costs certificate granted to the appellant wife.


(From the Editors of The Family Law Book)

Family Court of Australia Judgments

Property – assessment of post separation contributions - amount of adjustment, if any, which should be made in favour of the wife - value of the husband’s interest in the Business 1 corporations - expert opinion evidence and admissibility - inclusion or otherwise of balance sheet items.


(From the Editors of The Family Law Book)
Property - settlement in relation to marriage – superannuation – pension – valuation.
Child support - application for departure.


(From the Editors of The Family Law Book)
Parenting - overseas surrogacy arrangement – where the male applicant provided the sperm – where the applicants are resident and domicile in NSW – where at the time the arrangements were entered into NSW law did not have extraterritorial effect – where Australia is yet to grant a visa for the child to live in Australia – whether it is appropriate to make a finding as to parentage - child to live with the applicants - the applicants to have equal shared parental responsibility of the child.


(From the Editors of The Family Law Book)
Parenting - overseas surrogacy arrangement – where the first applicant provided the sperm – where the applicants are resident and domicile in NSW – where at the time the arrangements were entered into NSW law did not have extraterritorial effect – where Australia granted visa for the child to live in Australia – whether it is appropriate to make a finding as to parentage - child to live with the applicants - the applicants to have equal shared parental responsibility of the child.


(From the Editors of The Family Law Book)

Parenting - overseas surrogacy arrangement - where the male applicant provided the sperm - where the applicants are resident in Queensland and the arrangement was illegal in that State - where Australia granted a visa for the children to live in Australia - whether it is appropriate to make a finding that the sperm donor was a parent - children to live with the applicants - the applicants to have equal shared parental responsibility of the children - referral of the judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s3 Surrogate Parenthood Act 1988 (Qld)

(From the Editors of The Family Law Book)
Parenting - overseas surrogacy arrangement - where the male applicant provided the sperm - where the applicants are resident in Queensland and consequently the arrangement was illegal irrespective of where the arrangement occurred - where Australia granted a visa for the children to live in Australia - whether it is appropriate to make a finding as to parentage – the children to live with the applicants – the father and the father’s wife to have equal shared parental responsibility of the children – referral of the reasons for judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s3 Surrogate Parenthood Act 1988 (Qld).

(From the Editors of The Family Law Book)
Costs – where the wife has been ordered to pay the husband’s costs on an indemnity basis, assessed at $225,000 – wife seeks a stay of the costs order against her – whether the sum of money deposited in the husband’s solicitors’ trust account should be frozen pending determination of appeal – whether grant of stay would cause hardship to the respondent husband – merits of the appeal – where strong findings were made at trial against the wife – where costs include those necessarily incurred in a nine day trial with counsel – a sum of $100,000 to be frozen in the trust account pending appeal – remaining $125,000 in the trust account to be released to the husband.


(From the Editors of The Family Law Book)

Federal Magistrate’ Court Judgments

Child support –appeal from SSAT decision – adequacy of reasons and requirement for procedural fairness – appeal upheld – matter remitted to SSAT for re-hearing.

(From the Editors of The Family Law Book)
Child support – application for departure from a Child Support Agreement – whether there has been any significant changes in the parents’ means and/or the children’s needs since the agreement was entered into – what was reasonably anticipated by the parents at the time – whether the agreement created an unjust and inequitable obligation of financial support by the father.

(From the Editors of The Family Law Book)

1 comment:

  1. Nice article has lots of good and helpful info. I hope it will be helpful for all the peoples.
    Great work..Keep it up....
    Family Counselling

    ReplyDelete