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Saturday, June 9, 2012
Recent Family Law Decisions
Children - Interim order for sole parental responsibility not in error
In Gainforth  FamCAFC 24 (16 February 2012), the father appealed to the full court (Coleman, May and Ainslie-Wallace JJ) against an interim order granting the mother sole parental responsibility. Their Honours referred to Goode (2006) FLC 93-286 (FC) and the court's discretion under s.61DA(3) not to apply the presumption of equal shared parental responsibility at an interim hearing if considered not appropriate to do so. The court said at para 22: "Although it may not have been necessarily in the children's best interests to make an order for sole parental responsibility on an interim basis, it was apparent that there were significant tensions between the parents [findings as to which went unchallenged]. Applying well known principles ... it cannot be seen that the order was in error."
In Parker  FamCAFC 33 (7 March 2012), Coleman and May JJ (Murphy J dissenting) allowed the husband's appeal against Strickland J's decision not to invoke s.90G(1A) in declaring that it would be "unjust and inequitable if the agreement were not binding on the parties" (where the agreement was amended after it was signed by the wife and her solicitor). Subsections (1A), (1B) and (1C) were described by Coleman J as "remedial legislation", to be "construed 'generously' to ensure that the 'mischief' which [it] seeks to address is remedied" and that the trial judge's interpretation of s.60G(1A)(c) was "erroneously narrow". The case was remitted for rehearing.
In Preston [2012) FCWA 6 (27 January 2012), the husband was a farmer and the wife worked in the home and part-time in a bottle shop. Their eight-year marriage produced three children and net assets of $659,000. Thackray CJ found the husband to be the owner of 40 cows the husband alleged were under lease from his father (paras 40-42). The value at trial of the husband's initial contribution (the farm) exceeded the net pool. Finding that contributions were otherwise equal, Thackray CJ at paras 82-83 assessed contributions at 82.5:17.5 favouring the husband. The wife received a 25 per cent adjustment for s.75(2) factors, being the impairment of her earning capacity by her care of children, limited work opportunities and the husband's rent-free accommodation.
Property - Ex parte flagging order - Prospect of withdrawal of superannuation
In Zoller  FamCA 47 (27 January 2012), Murphy J granted the wife's urgent ex parte application under FLR 5.12 for a flagging order under s.90MU due to the prospect of the husband, a resident of Germany although currently living in the Caribbean, withdrawing superannuation from his pension plan, being "a substantial part of the property of the parties".
Children and property - Drug testing - $3.5 million of $5 million pool inherited by the wife
In Vokic & Vlass  FamCA 56 (15 February 2012), the wife had a history of drug abuse and an interim order required her to undertake urinalysis and hair follicle tests for the presence of illicit drugs and continue with family therapy (para 69). Fowler J considered evidence from a medical specialist in addiction medicine and a family consultant, making an order (para 427) enabling the children to spend "regular ... time with the wife with an opportunity for [her] to put her life back in order ... on the basis that as the risk to the children demonstrably diminishes there will be increasing time with the wife [as to which] she will need to be able to demonstrate compliance with the orders and provide continued negative drug tests". The parties' ten years together produced net assets of $5 million, $3.5 million of which the wife inherited during their relationship. Contributions were assessed at 80:20 in her favour. The husband received an adjustment of 7 per cent for s.75(2) factors, being the imminent termination of his employment, his need to retrain and the wife's superior earning capacity.
Financial agreement - Agreement not binding - Unreliable evidence as to legal advice given
In Hoult  FamCA 1023 (22 December 2011), Murphy J granted the wife's application for a declaration that a s.90B financial agreement made in 2004 was not binding because her solicitor, Ms K, never provided her with the advice required by s.90G. The wife (paras 76-78) complained that she was "not able to fully comprehend what was being read to [her]" and that Ms K did not explain "the law relating to the agreement ... ask [her] any questions about the history of [her] marriage ... or speak to [her] about [her] rights ... nor the advantages or disadvantages arising from the agreement". Murphy J referred to Ms K's evidence at paras 47-50 and to "the prudence of comprehensive diary notes or other memoranda or, for example, a contemporaneous letter of advice" to assist recall or as evidence, saying at paras 78 and 94: "Ms K said it was 'not correct' for the wife to make that assertion. But, her evidence to that effect is not supported by any positive evidence by her as to what advice was actually given ... I find her evidence to be generally unreliable. ( ... ) The evidence as a whole, including the certificate, provides an insufficient evidentiary foundation for a finding that advice was given about the advantages and disadvantages of the agreement for the wife at the time that the agreement was made."
Property - Contributions - Most of $13.7 million pool inherited by husband
In Mackintosh & Greer  FamCA 55 (15 February 2012), the parties cohabited for a year, were then married for seven years and had no children. The $13.7 million net assets comprised the farm inherited by the husband and other assets acquired by him ($12.3 million) and property contributed by the wife ($1.4 million). Dawe J assessed contributions at paras 110-115 as 75:25 in the husband's favour. No adjustment was made under s.75(2).
Children - Risk of abuse acceptable if time limited to supervised day time
In Giordano & Sica  FamCA 64 (24 February 2012), Rees J found that the mother's concerns at the risk of sexual abuse of a child K by the father were valid, saying at para 101 that because the court could not "be sure that K [would] be safe overnight in the father's household", the time K spent with her father would be limited to day time. Rees J concluded that "[i]f the time is limited to day time, supervised visits, then the risk is acceptable".
From Case notes on Family Law
By ROBERT GLADE-WRIGHT & the Editors of the "Family Law Book"