Sunday, April 29, 2012

Recent Family Law Decisions – April 2012

Property - Change of venue - Sydney preferred to Adelaide for Part VIIIAB case - disputed date of separation

In Benson & Owens [2011] FamCAFC 236 (15 December 2011) former de facto partners were resident in South Australia when one filed a Part VIIIAB application in Sydney, alleging that four of their six years together were spent in NSW where most of their property dealings occurred. There was also a property in South Australia. Their relationship was alleged to have broken down in January 2010 by the applicant and in 2006 by the respondent. Walker FM transferred the proceedings to Adelaide and the applicant appealed. Coleman J referred to the factors relevant to change of venue under FLR 8.01, allowing the appeal on the ground that the appellant could be disadvantaged by the transfer to Adelaide due to the date of referral of state powers in South Australia (1 July 2010).

Property - Husband’s bankruptcy – joinder of former lawyers for purpose of “getting paid” set aside

In Sresbodan and Ors (No 2) [2011] FamCAFC 240 (16 December 2011) the husband became bankrupt during property proceedings. His trustee in bankruptcy intervened. His former solicitors (S) lodged a proof of debt for costs of $273,000 of which the trustee rejected $85,000. S appealed to the Federal Court and was also granted leave by Watts J to intervene in the property proceedings, the husband appealing against that order to the
Full Court
(Coleman, Thackray and Young JJ). The basis for S seeking to remain interveners was said to relate to “the mechanics of getting paid” [15]. Allowing the appeal, the
Full Court
held at [37] that S should pursue their remedy in the Federal Court.  



Children - Contravention of Order - “Reasonable excuse”
In Raider [2011] FamCA 488 (23 June 2011) Forrest J reviewed “reasonable excuse for contravening” an order under s70NAE of the Act and applied Stevenson v Hughes (1993) FLC 92-363 in which the
Full Court
said:
“. . . it is not a sufficient discharge of a custodian’s obligations to point to words and actions and to say, in effect: ‘you see, I tried. But the child does not want to go’ and thereafter to . . . fold their arms as if that were the end of the matter . . . the custodial parent’s role is an active role with an obligation to positively encourage access”.

Property - Money from parent a contribution, not a “compellably repayable” loan
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. After separation the father intervened, seeking repayment of what he alleged was a loan. Burchardt FM described the evidence as lacking any dates or places for the alleged loan discussions, finding that the father had “agreed to help them out” and that there had been “no formality”; no term for repayment; no demand for repayment until separation; and no capacity to repay. Burchardt FM concluded at [73]:

“. . . 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 . . . That . . . position excludes the proposition that the $240,000 was compellably repayable”.
Financial Agreement - Set aside as legal advice unintelligible to a party with  no English
In Omar & Bilal [2011] FMCAfam 1430 (21 December 2011) the wife sought an order setting aside a s90C financial agreement as it failed to comply with s90G of the Act. She alleged she had not understood her legal advice. The parties had migrated to Australia from Lebanon. Henderson FM found that the wife had “no English, the deed and certificate are all in English and no translation of the deed and its effect . . . for her is evident in a language she can understand”. The wife was found to have lacked formal education and left school at age seven. An Arabic translator was employed to explain the deed and did so, but not in the presence of the wife’s lawyer.


Property - $4.5m pool included wife’s pre-marital $3.89m inheritance
In Hardy & Markson [2011] FMCAfam 1061 (20 October 2011) a nine year marriage produced one child and net assets of $4.5m, $3.89m of which the wife inherited three months after the marriage. Willis FM took a global approach due to the husband’s various contributions during the marriage. Those contributions were assessed at 8 per cent of the total pool, s75(2) factors being assessed at two per cent in his favour.

Property - Distinction made between parents “loans” and “gifts
In Pelly & Nolan [2011] FMCAfam 530 (25 July 2011), the husband’s father (Mr P) advanced $250,000 to help his son buy a property and another $70,000 when the property was sold and another one purchased. The father later advanced $200,000 to “help him out”. He gave evidence that he did not expect repayment of the $200,000 but did require repayment of the first two sums in due course. Howard FM found that although “no interest [had] been paid . . . [nor] any demand [made] for . . . any interest”, it was “only in respect of advancing money for the purchase of real estate . . . that Mr P prepared a loan agreement” and that “when the obligation to repay the principal of $320,000.00 arises it [was], on the balance of probabilities, likely to have to be repaid”. That sum was held to be a liability and the $200,000 treated as a contribution on the husband’s behalf.

Property - Joinder of parent as alleged creditor – consolidation of state proceedings – accrued jurisdiction
In Stuart [2011] FMCAfam 1228 (17 November 2011) the proceeds of sale of a property owned by the parties and the husband’s parents ($90,000) were given to the wife and husband to be paid off their mortgage. The husband claimed the money had been a loan and his mother issued proceedings against them in the District Court of SA for repayment. Mead FM granted the wife’s application for an order that the Federal Magistrates Court exercise its accrued jurisdiction by joining the two proceedings, saying that it would not be possible to calculate the parties’ assets and liabilities “without making a finding as to the parties’ liability to Mrs I Stuart Snr” and that to “do so she must be afforded procedural fairness [which would be] best accorded to her by way of joining her to these proceedings” under FMCR 11.01 so as to enable the Court “to completely and finally determine all matters in dispute between the parties”.


Children - Father’s appeal against termination of time with child dismissed

In Summerby & Cadogen [2011] FamCAFC 205 (20 October 2011) the Full Court (Thackray, Strickland and Young JJ) dismissed the father’s appeal against Wilson FM’s order that he was to have no further contact with his 5-year-old daughter. The father had been spending time with the child but his (ultimately discredited) allegations of child sexual abuse against the mother’s new partner led to the mother’s decision to begin withholding the child from the father; counter-allegations of abuse; a child protection order; the mother’s disappearance and 10 contraventions; the child’s “unwillingness” to see her father; and a 14-day trial over two years. The 
Full Court
said at [87]: “Unpalatable as it clearly was, his Honour . . . had to take account of the fact that the child’s primary carer would ‘actively try and destroy the relationship’ with the other parent if contact was ordered. Given the ‘emotional abuse’ to which he found the child would be exposed in such circumstances, we consider his Honour was right not to take into account the conduct of the mother to any greater extent than he did”.

Property - Discovery – party granted certificate against self-incrimination
In Aitken & Murphy [2011] FamCA 785 (12 October 2011) the applicant filed an affidavit deposing that he had made partial discovery but objected to producing certain documents relating to undisclosed income between 2004 and 2010 on the ground that their production might tend to prove that he had committed an offence or was liable to a civil penalty. The applicant applied to Young J, who considered the relevant case law and granted a certificate under s128 of the Evidence Act 1995 (Cth) that such evidence could not be used against him in proceedings under the Taxation Administration Act, Crimes Act and Criminal Code (all Cth).
Small asset pool – wife to receive entire pool
In  Shroeder & Drummond [2011] FamCA 741 (22 September 2011) Ryan J gave the mother of two young children, after a relationship of 10 years, the entire pool valued at $100,000, half of which was her own superannuation. The order was constituted by a contributions assessment of 70 per cent in the wife’s favour and a further 30 per cent for s75(2) factors. The husband’s debts of $50,000 were excluded from the pool and his undisclosed inheritance was said to be available for the repayment of those debts.
Registrar’s refusal to abridge time – when an application should be listed urgently
In Myers [2011] FMCAfam 1104 (24 October 2011) at [32]-[33] and [52], Halligan FM (disagreeing with Lynch & Dunstan [2011] FMCAfam 389 and Zeller & Whitby [2011] FMCAfam 431) held that a registrar’s refusal to list a child support stay application urgently was reviewable under s104(2) of the Federal Magistrates Act. Halligan FM said at [87]-[89] that it was “not for me or a Registrar . . . to pre-judge [a] substantive application” and then set out the circumstances in which a substantive application should be listed urgently.


Financial agreement - Husband received less than he expected – impracticability
In Sanger [2011] FamCAFC 210 (28 October 2011) Kemp FM granted the wife’s application for enforcement of payment of $350,000 by the husband to her under a financial agreement, dismissing the husband’s application for an order setting the agreement aside on the ground that the subsequent sale of properties at prices below their value as recited in the agreement had not given him the 40 per cent share of the parties’ assets as agreed. The husband appealed to the 
Full Court
(Coleman, May and Thackray JJ). The Full Court at 63-67 reviewed contract law, including the function of courts to give effect to a bargain, and at [71] observed that the “covenants of the BFA embodied the risks which the parties clearly accepted” and the “recitals to the BFA made clear that they understood those risks”.


Accrued jurisdiction - Husband’s application to join law firm as a party to wife’s application to set aside financial agreement dismissed
In Noll and Anor [2011] FamCA 872 (11 November 2011) Le Poer Trench J dismissed the husband’s application for the Court to invoke its accrued jurisdiction to determine, in proceedings in which the wife was applying for an order setting aside a s90C financial agreement, his action in damages against a law firm for negligence, holding after a review of the law relevant to the joinder of a third party to family law proceedings that the two claims were not part of a “single justiciable controversy”.


Property - Short (three year) de facto relationship – order reflected parties’ unequal interest in property adjusted for improvements made
In Scofield & Shaw [2011] FMCAfam 1296 (30 November 2011) a de facto couple held a property as tenants in common in shares 63 per cent to the respondent and 37 per cent to the applicant. They separated when the applicant assaulted the respondent and an apprehended violence order was made on the application of the police on her behalf. On reviewing relevant case law, Brewster FM dismissed the applicant’s claim for payment of an occupation fee by the respondent during her sole occupancy of the property (when she paid rates and other outgoings but had no mortgage payments to make), holding at [19] that there had been no ouster, the applicant having been excluded from the property not by the respondent but by “operation of law” when the applicant was restrained from entering the property as a condition of his bail.
Brewster FM did, however, make an allowance for the applicant’s payments towards renovations and furniture and one-half of a joint credit card debt, holding at [24] that such “an accounting exercise” was appropriate in the case of a short relationship. On that basis, it was ordered that the applicant be paid $186,595 and transfer his interest in the property to the respondent.


Property - Overseas superannuation excluded from pool – financial resource
In Perry & Nesbit [2011] FMCAfam 1195 (11 November 2011) Whelan FM excluded the husband’s overseas superannuation interest from the asset pool, treating it instead as the husband’s financial resource, applying the Full Court’s approach in SHL & EHL [2006] FamCA 1287.


Recent Family Law Cases

Property - Change of venue - Sydney preferred to Adelaide for Part VIIIAB case - disputed date of separation

In Benson & Owens [2011] FamCAFC 236 (15 December 2011) former de facto partners were resident in South Australia when one filed a Part VIIIAB application in Sydney, alleging that four of their six years together were spent in NSW where most of their property dealings occurred. There was also a property in South Australia. Their relationship was alleged to have broken down in January 2010 by the applicant and in 2006 by the respondent. Walker FM transferred the proceedings to Adelaide and the applicant appealed. Coleman J referred to the factors relevant to change of venue under FLR 8.01, allowing the appeal on the ground that the appellant could be disadvantaged by the transfer to Adelaide due to the date of referral of state powers in South Australia (1 July 2010).

Property - Husband’s bankruptcy – joinder of former lawyers for purpose of “getting paid” set aside

In Sresbodan and Ors (No 2) [2011] FamCAFC 240 (16 December 2011) the husband became bankrupt during property proceedings. His trustee in bankruptcy intervened. His former solicitors (S) lodged a proof of debt for costs of $273,000 of which the trustee rejected $85,000. S appealed to the Federal Court and was also granted leave by Watts J to intervene in the property proceedings, the husband appealing against that order to the
Full Court
(Coleman, Thackray and Young JJ). The basis for S seeking to remain interveners was said to relate to “the mechanics of getting paid” [15]. Allowing the appeal, the
Full Court
held at [37] that S should pursue their remedy in the Federal Court.

Children Contravention of order – “reasonable excuse”
In Raider [2011] FamCA 488 (23 June 2011) Forrest J reviewed “reasonable excuse for contravening” an order under s70NAE of the Act and applied Stevenson v Hughes (1993) FLC 92-363 in which the
Full Court
said:
“. . . it is not a sufficient discharge of a custodian’s obligations to point to words and actions and to say, in effect: ‘you see, I tried. But the child does not want to go’ and thereafter to . . . fold their arms as if that were the end of the matter . . . the custodial parent’s role is an active role with an obligation to positively encourage access”.

Property - Money from parent a contribution, not a “compellably repayable” loan
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. After separation the father intervened, seeking repayment of what he alleged was a loan. Burchardt FM described the evidence as lacking any dates or places for the alleged loan discussions, finding that the father had “agreed to help them out” and that there had been “no formality”; no term for repayment; no demand for repayment until separation; and no capacity to repay. Burchardt FM concluded at [73]:

“. . . 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 . . . That . . . position excludes the proposition that the $240,000 was compellably repayable”.
Financial Agreement - Set aside as legal advice unintelligible to a party with no English
In Omar & Bilal [2011] FMCAfam 1430 (21 December 2011) the wife sought an order setting aside a s90C financial agreement as it failed to comply with s90G of the Act. She alleged she had not understood her legal advice. The parties had migrated to Australia from Lebanon. Henderson FM found that the wife had “no English, the deed and certificate are all in English and no translation of the deed and its effect . . . for her is evident in a language she can understand”. The wife was found to have lacked formal education and left school at age seven. An Arabic translator was employed to explain the deed and did so, but not in the presence of the wife’s lawyer.



(*From the Editors of "The Family Law Book Co")



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