Tuesday, October 4, 2011

Recent family Law Cases, October 2011

Children – Relocation to New Zealand allowed
In
Harding & Crawley [2011] FamCA 581 the mother of a five year old child was allowed by Kent J to relocate to NZ from Qld where the father had been spending alternate weekends with the child. The father had also had to issue Hague Convention proceedings to bring the mother back when she moved to NZ unilaterally.


(From the Editors of The Family Law Book)

Conflict of interest – Lawyer restrained from acting
In
Nettle [2011] FMCAfam 414 the wife was granted an injunction restraining the husband’s lawyer from acting where he had had pre-marital discussions with both parties separately, the wife deposing that she would not have given “information confidential to [her]self [had she been] forewarned about the current sorry state of affairs”. She spoke of feeling “quite violated”. Baumann FM summarised the relevant law, saying at para 15:

“There are particular sensitivities...in family law...[where] the integrity of the justice system…benefits from litigants…starting from an equal position. Theoretically, the husband…is in a superior position potentially, because of information disclosed by the wife to the solicitor and his firm.”




(From the Editors of The Family Law Book)

Appearance by telephone – Procedural fairness
In
Patison & Farington-Manning and Anor [2011] FamCAFC 167 May J set aside an FM’s refusal to grant further leave to a lawyer to appear by telephone, saying at paras 34-38:

“As can be seen [an FM] has a wide discretion to allow hearing by audio link … The [FM] was entitled to form the view that there were difficulties … and direct that in future solicitors attend in person. However … the [FM] took the view that in some way the solicitor was behaving inappropriately … Having listened to the audio transcription … and read each transcript it is apparent that … the [FM] became exasperated and did not afford the solicitor procedural fairness. It is not immediately apparent what the solicitor did to cause this result.”





(From the Editors of The Family Law Book)

Parenting order inconsistent with family violence order
In
Brainard & Wahlen & Anor [2011] FamCA 610 Austin J made a parenting order that would be inconsistent with family violence orders each party had obtained against the other. Upon making the parenting order, Austin J specified the inconsistency and how the contact was to take place and explained the status of both orders as required by s 68P(2) FLA.
 
(From the Editors of The Family Law Book)

Husband’s interest in farm held on trust for his mother
In
Markoska [2011] FamCA 572 Murphy J declared that the husband (H) held his one-third interest in a farm on trust for his mother (M). The land was bought by M and her husband (E) before the wife (W) and H began living together (H was 17). The land was farmed by M and E until E’s death after which M farmed it alone. H’s name was put on title in anticipation that he would pursue a career in farming, but he would not own his interest until he paid his parents his share of the purchase price. A year after his marriage H decided not to farm, finding work as a public servant instead. 

(From the Editors of The Family Law Book)

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