Tuesday, February 7, 2012

Recent Decisions: Family Law, Criminal Law and Civil/Commercial

Family Case Law Notes

Procedure - appearance by telephone - procedural fairness

In Patison & Farington-Manning and Anor [2011] FamCAFC 167 (15 August 2011) May J set aside a federal magistrate’s refusal to grant leave to a lawyer to appear by telephone. After discussing the purpose of an appearance by telephone and the differences between the Federal Magistrates Act and Family Law Rules governing it, May J said at paras 34-38:

“As can be seen a Federal Magistrate [FM] has a wide discretion to allow hearing by audio link, in this case via telephone. The [FM] was correct in doing so in the circumstances of this case. The [FM] was entitled to form the view that there were difficulties in hearing the matter by telephone and direct that in future solicitors attend in person. However, the problem was that the [FM] took the view that in some way the solicitor was behaving inappropriately based partly on an earlier hearing. Having listened to the audio transcription of both hearings and read each transcript it is apparent that for whatever reason 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)

Children - parenting order inconsistent with family violence order

In Brainard & Wahlen and Anor [2011] FamCA 610 (5 August 2011) Austin J heard parenting proceedings in a Magellan case where parenting orders would be inconsistent with the terms of family violence orders each party had obtained against the other. Austin J said at para 113:

“The literal terms of the family violence orders are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence orders and explain how those parenting orders will operate, as required by s68P(2)(a),(d) of the Act.

Austin J then proceeded to give the parties an explanation pursuant to the Court’s obligations under s68P(2)(c) and (d) of the Family Law Act as to the inconsisentcy, the necessity to make inconsistent parenting orders, the child’s best interests, the matters covered by parenting orders, which family violence orders were consistent and how contravention of both orders was to be dealt with.

(From the Editors of The Family Law Book)

Children - relocation to New Zealand allowed

In Harding & Crawley [2011] FamCA 581 (26 July 2011) the mother of a five-year-old child was allowed by Kent J to relocate to New Zealand from Queensland 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 New Zealand unilaterally.

(From the Editors of The Family Law Book)



Property - parties kept their finances separate - asset by asset approach

In Stiller & Power [2011] FMCAfam 996 (19 September 2011) the parties were married for 20 years but did not live together. Baumann FM found that the parties “kept their finances very separate”. At marriage, the wife owned property which by the hearing had grown to $4m whereas the husband’s wealth had “shrunk” to $315,000 due to losses caused by his mismanagement for which the wife (it was held) should bear no responsibility. Baumann FM took an asset by asset approach, finding that the husband’s “minimal” contributions [we]re almost irrelevant” and the wife’s contributions “also [were] almost irrelevant.” There was no adjustment for s75(2) factors as the comparative positions of the parties 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)

Maintenance - bankrupt spouse may apply for variation of maintenance order

In Blake [2011] FMCAfam 796 (17 August 2011) the husband, who was declared bankrupt on his own petition six months after an interim maintenance order was made against him, was allowed to apply for the discharge of that order. Connolly FM held “that, despite bankruptcy, a bankrupt party has standing to bring an application under the [FLA] … that [is] personal in nature … which do[es] not affect the quantum of the bankrupt estate”. 

(From the Editors of The Family Law Book)

Property - Money from husband’s father held to be neither gift nor compellably repayable loan but a contribution on husband’s behalf.

In Maddock & Anor (No. 2) [2011] FMCAfam 1340 (13 December 2011) the husband’s father had given the parties $240,000 towards the cost of buying acreage and building a house on the land. After the parties’ separation the father intervened in the proceedings and sought repayment of what he argued had been a loan. The husband agreed but the wife denied any loan, alleging that the payment had been a gift. Burchardt FM at para 46 described the evidence as to this alleged loan as follows:

So far as the critical evidence as to the loan was concerned, the husband’s evidence was relatively ephemeral. He continued to depose that the advances were a loan and said that there were discussions between him and the wife as to how they would repay. He also said that he discussed with his father what would happen after the first mortgage was gone … He made it clear that he supported his father’s position … He admitted that he had himself incorporated into his own affidavit material the error in his father’s material as to the first payment advanced. ... Despite saying that [a loan] was discussed on a couple of occasions, he was not able to give any dates or places as to where the discussions had taken place.”

Burchardt FM found at para 62 that the intervener had given the parties the money because he “agreed to help them out”, adding at paras 63-68:

“Curiously, given the very large amounts of money involved, the arrangement for the advancement of the funds was attended by absolutely no formality whatsoever.

It is clear beyond doubt that:

a. There was no term as to the repayment of the loan. According to the intervener’s own evidence, the husband and wife could have repaid him when they paid out their mortgage in another 30 years’ time, when he would be at a very advanced age.

b. No demand for repayment was ever made until separation.

c. I should accept that if the money had been described as a loan repayable on demand, the wife would not have accepted it. Her evidence in this regard was compelling. The parties simply did not have the capacity to repay it. Although the intervener may not have known their exact financial circumstances, he knew that they were not able to readily borrow this from a bank (or they would not have been asking him) and it is clear that he must have known, or at the very least strongly suspected, that repayment was certainly a matter that would take place only, as he himself put it, as and when they were able to do so.

In one sense, the informal nature of these arrangements denies legal analysis. I do not think it was a gift. If someone gives you over a quarter of a million dollars, you tell the world about it. It is clear the wife never told her own parents in terms of this extraordinary bounty nor, it would appear, anyone else. Likewise, she never wrote a note of thanks, which an outright and clearly expressed gift would have been highly likely to have engendered.

To the contrary effect, however, I do not think that the arrangements can properly be described as a loan in the ordinary sense. Loans, if nothing else, have terms as to repayment. ‘Loan’ is defined by the Butterworth’s Australian Legal Dictionary as:

‘The temporary transfer of an asset, usually funds, from a lender who controls the funds to a borrower in return for payment, usually in the form of interest. The asset must be returned either in one sum at the maturity of the loan or in periodic payments.’

What I find to have occurred is that various advances were made by the intervener in circumstances which at the time appear to have been remarkably workaday [casual] … It seems to me far more probable than otherwise that the parties … did not have in mind the creation of legal relations in any technical sense.

The moneys were simply advanced and nothing was said as to when they would be repaid and in what way. It is quite clear that it was not contemplated that the moneys would be repaid upon sale of the property. As the husband rightly asserts, the parties had no intention of selling it. “

Before concluding that the payment should be treated as a contribution made on behalf of the husband Burchardt FM said at paras 72-73:

“In my view, the complete absence of a term for repayment or a mechanism for it to occur means that the ultimate characterisation of the advances is that they are not repayable. They were repayable at will.

I am absolutely clear in my mind that if the parties had not been separated, the intervener would never have asked for his funds. They would have been repaid as and when they were able to be repaid. The husband himself suggested that it would be repaid if they won Tattslotto. That was the true position. It is one that excludes the proposition that the $240,000 was compellably repayable.

(From the Editors of The Family Law Book)

Civil & Criminal Case Law Notes

High Court

Criminal Law - trial - directions to jury - assessing witnesses - assessments of “interest” of witness in result

In Hargraves v Q [2011] HCA 44 (26 October 2011) the High Court reiterated that the primary function of the trial judge was to ensure that the jury was focused on assessing the evidence to determine guilt beyond reasonable doubt. The appeal concerned comments by the trial judge, in the charge, that the jury should, in assessing the evidence of the accountant called by persons accused of defrauding the Commonwealth by entering a tax scheme, consider whether the accountant had an interest in the outcome of the trial. The High Court concluded that comments would not have deflected the jury from its task. Consideration of whether the decision in Robinson v Q [1991] 180 CLR 531 (1991) HCA 38 established a new doctrine or re-stated established principle. Appeal dismissed: French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ jointly; sim Heydon J. Appeal dismissed. 


(From the Case Notes of Thomas Hurley)

Courts - precedent - status of Codelfa Construction Pty Ltd v State Rail Authority NSW

In Western Export Services Pty Ltd v Jireh International Pty Ltd [2011] HCA 45 (28 October 2011) in considering for an application for special leave the Court (Gummow, Heydon, Bell JJ) reiterated that the doctrine of precedent required intermediate courts apply the decision in Codelfa Construction Pty Ltd v State Rail Authority [1992] HCA 24 (1982) 149 CLR 337 as to the admissibility of surrounding circumstances until the High Court reviewed the decision. Special leave refused.

(From the Case Notes of Thomas Hurley)


Criminal law - liability - criminal liability for omission

In DPP (Cth) v Poniatowska (2011) HCA 43 (26 October 2011) the SA Court of Criminal Appeal had concluded the provisions of the Criminal Code (Cth) did not operate to attach criminal liability to a failure of a person to do an act the person was not obliged by law to do. The High Court granted special leave and reviewed the operation of the Code and concepts of criminal liability generally before dismissing the appeal: French CJ, Gummow, Kiefel, Bell JJ jointly; contra Heydon J. 

(From the Case Notes of Thomas Hurley)

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