Friday, November 4, 2011

Recent Family Law Cases, November 2011

“Add backs” – Pre-separation expenditure not added back

In Mayne [2011] FamCAFC 192 the Full Court set aside Neville FM’s decision to add back a $173K inheritance the wife gave away or spent when she was “heavily in debt”. Faulks DCJ said as to expenditure before separation:

“ … while parties are together, each might, from time to time and with the consent of the other, either express or implied, apply or appropriate assets or funds to his or her own purposes. When the relationship is good, no-one is likely to care – let alone keep records. ( … ) It is not the Court’s function to conduct an audit of the marriage or of the relationship finances.”



(From the Editors of The Family Law Book)

Children – Order for immunisation set aside

In Mains & Redden [2011] FamCAFC 184 Coleman J set aside Dunkley FM’s order that a child be immunised as medical evidence admitted by Coleman J suggested, if accepted, “that, whatever its magnitude, there was a measure of risk of the child suffering a significant reaction to immunisation, and certainly, a risk significantly greater than that found by [Dunkley FM]”.


(From the Editors of The Family Law Book)

$1.3m paternal loan excluded – Resulting trust claim also failed

In Liakos & Zervos & Anor [2011] FamCA 547 the husband’s father sought a declaration of equitable ownership of two properties (total value $525K of a $663K pool) one of which he bought in his son’s name. The other was bought by his son with finance paid out by the father. The father also sought a declaration that his son owed him $1.5m. Loughnan J dismissed both applications, referring to case law in support of the court’s power to ignore debts for which it felt one party should bear sole responsibility. Loughnan J reviewed case law relevant to resulting trusts, finding that the evidence pointed to the presumption of advancement applying in favour of the husband.


(From the Editors of The Family Law Book)

Financial agreement – Rectification denied – Unilateral mistake

In Sullivan [2011] FamCA 752 the husband applied for the rectification of a financial agreement by changing “s 90B” to “s 90C” and a declaration that the agreement was a financial agreement under s 90C (FLA). The wife deposed that she signed the document under coercion from the husband two days before their wedding. The husband signed it three days after the wedding. Both certificates of legal advice referred to “the agreement proposed to be entered into”. Young J said:

“ … the matter before the Court is distinct from both Senior v Anderson [[2011] FamCAFC 129], where there was a common mistake, and Ryan v Joyce [[2011] FMCAfam 225] where there was a unilateral mistake known to the husband before he signed the agreement. In the matter before the Court there is no common mistake and therefore no common intention to give rise to rectification as a remedy.”




(From the Editors of The Family Law Book)

Child support – Applicant declared not the child’s father


In Stiller & Power [2011] FMCAfam 996 Baumann FM found that the parties had for 20 years “kept their finances very separate” and that their respective contributions were insignificant. There was no adjustment for s 75(2) factors as the comparative positions of the parties (wife $4m, husband $315K) were found to have stemmed from the wife’s superior initial financial position and poor decision-making by the husband.

Bankrupt spouse may apply for variation of maintenance order
In Levine [2011] FMCAfam 821 the applicant was granted a declaration under s 107 (CSAA) that he should not be assessed for child support as he was not the child’s father and an order under s 143 that the respondent repay him $13K paid by him to the CSA and costs of $4K. Scarlett FM held that the court had no jurisdiction to order repayment of $5,400 paid under a voluntary agreement made before the administrative assessment. (Editor’s note – See also Radcliffe & Hall [2011] FMCAfam 781.) 


(From the Editors of The Family Law Book)

Parties kept their finances separate – No adjustment


In
Blake [2011] FMCAfam 796 the husband, a bankrupt, applied for the discharge of an interim maintenance order made before his bankruptcy. Connolly FM held that “ a bankrupt party has standing to bring an application … that [is] personal in nature … which do[es] not affect … the bankrupt estate”.
Stiller & Power [2011] FMCAfam 996 Baumann FM found that the parties had for 20 years “kept their finances very separate” and that their respective contributions were insignificant. There was no adjustment for s 75(2) factors as the comparative positions of the parties (wife $4m, husband $315K) were found to have stemmed from the wife’s superior initial financial position and poor decision-making by the husband.


(From the Editors of The Family Law Book)

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