Monday, February 13, 2012

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

Family Law Decisions

Property - “Add backs” - Pre-separation expenditure

In Mayne [2011] FamCAFC 192, the full court set aside Neville FM’s decision to add back a $173,000 inheritance the wife gave away or spent when she was “heavily in debt”. Faulks DCJ said at paras 77-78 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.

Strickland J disagreed, and May J (paras 106-107) said “the better course would have been for the [FM] to have considered the … [expenditure for which “there was no proper account”] in determining the proper percentage to be attributed to the parties by reason of their contributions during the marriage”. 

(From the Editors of The Family Law Book)

Children - order for immunization set aside.

In Mains & Redden [2011] FamCAFC 184, Coleman J at para 136 set aside Dunkley FM’s order that a child be immunised as medical evidence admitted by ColemanJ, if accepted, suggested “that, whatever it’s 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)

Property - $1.3 million loan from husband’s father not deducted from pool - Resulting trust claim also failed

In Liakos & Zervos and Anor [2011] FamCA 547, the parties were married for 13 years. Of their $663,000 asset pool, the husband’s father sought a declaration of equitable ownership of two properties (total value $525,000) 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 $1.5 million. Loughnan J dismissed both applications, referring at paras 139-150 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 at paras 195-205 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)

Property - Consent order and financial agreement not set aside despite wife’s fraud

In Nyles [2011] FamCA 565, the husband and wife entered into a property settlement by way of consent orders and a financial agreement. At that time the wife was a director of a private company engaged in the process of floating as a public company on the stock market. The float resulted in a vast increase in the value of the wife’s shares in the company “which she realised to achieve a large windfall”. Mushin J dismissed the husband’s applications under s. 79A and 90K of the Family Law Act for orders setting aside the consent orders and financial agreement.

Mushin J at paras 124-130 discussed the duty of “full and frank disclosure” as to both contested proceedings and consent orders, finding at para 174 that her failure to update her financial statement and valuation amounted to a fraudulent misrepresentation, but that the husband had not relied on that misrepresentation resulting in a miscarriage of justice under s. 79A as he knew a float of the company was “imminent”, believed that the shares had “significant value” and had been advised not to settle until an up-to-date valuation had been conducted. Mushin J also found that the financial agreement had not been obtained by fraud within the meaning of x.90K. 

(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 references to s.90B to 90C of the Family Law Act and a declaration that the agreement was a financial agreement under s.90C. The wife deposed that she signed the document under coercion from the husband two days before the parties’ wedding. The husband signed it three days after the wedding. Both certificates of legal advice referred to “the agreement proposed to be entered into” by the parties. Young J found at para 138 that it was “not apparent that there was a common intention to enter into an agreement under s.90c of the Act”. As to rectification, 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 was 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 Levine [2011] FMCAfam 821, the applicant was granted a declaration under s.107 of the Child Support (Assessment) Act that he should not be assessed for child support as he was not the child’s father and an order under s.143 of the Act that the respondent repay him $13,000 paid by him to the CSA, and costs in the sum of $6,000. Scarlett FM held that the court had no jurisdiction to order repayment of the $5,400 paid under a voluntary agreement made prior to the administrative assessment. (See also Radcliffe & Hall (See also Radcliffe & Hall [2011] FMCAfam 781.)

(From the Editors of The Family Law Book)

Child support - SSAT appeal - “Care of child” not living with either parent

In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, Hughes FM allowed the father’s appeal against the Social Security Appeals Tribunal decision to affirm the Child Support Registrar’s decision that the departure of the child (born in 1992) form his mother’s home to take up an apprenticeship did not constitute a child terminating event or a significant reduction in the mother’s care percentage. 

(From the Editors of The Family Law Book)

Maintenance - Bankrupt spouse may apply for variation of maintenance order

In Blake [2011] FMCAfam 796, 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 a discharge of the 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)

Civil/Commercial Law Decisions

Reinstatement and winding up of deregistered companies.

In ACN 078 272 867 Pty Ltd (in liq) v Deputy C of T [2011] HCA 46 (2 November 2011), Heydon J considered whether deregistered companies had any right to be heard on an application by the Commissioner of Taxation for re-registration of a deregistered company and an order that the company then be liquidated and whether any right of hearing would have altered the result. He considered when re-registration occurred. Application for constitutional writs to quash reinstatement orders of the Federal Court dismissed. 

(From the Case Notes of Thomas Hurley)

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

Criminal Law Decisions

Trial Directions to Jury
Assessing witnesses
Assessment 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)

High Court Appeal
Commonwealth Social Security Act offences
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 the 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 specal 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) 

High Court Appeal Against Sentence
Bui v Director of Public Prosecutions (Cth)

Criminal law – Appeal – Appeal against sentence – Prosecution appeal – Double jeopardy – Appellant pleaded guilty to importation of a marketable quantity of a border controlled drug contrary to s 307.2(1) of Criminal Code (Cth) – Appellant sentenced to three years' imprisonment to be released forthwith upon giving security to comply with a condition that appellant be of good behaviour for three years – Respondent appealed against sentence – Sections 289(2) and 290(3) of Criminal Procedure Act 2009 (Vic) ("Victorian provisions") provided that double jeopardy not to be taken into account in allowing appeal against sentence or imposing sentence – Whether ss 68(1) or 79(1) of Judiciary Act 1903 (Cth) ("Judiciary Act") rendered Victorian provisions applicable to prosecution appeal against sentence instituted by respondent – Whether a "common law principle against double jeopardy" picked up by s 80 of Judiciary Act – Whether ss 16A(1)-(2) of Crimes Act 1914 (Cth) required or permitted court determining sentence for federal offence to take into account double jeopardy.

(From the Case Notes of Thomas Hurley)

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