Friday, July 6, 2012

Recent Family Law Decisions


Children - Unborn ex-nuptial child - No jurisdiction to restrain mother from terminating pregnancy

In Talbot & Norman [2012] FamCA 96 (24 February 2012), the applicant applied for an injunction restraining the respondent from terminating her pregnancy. Murphy J dismissed the application, having regard to the respondent's sworn evidence that she was about 13 weeks pregnant but did not intend to terminate the pregnancy. Murphy J also examined the court's jurisdiction at paras 21-24, 29-34, concluding at para 41: "I am of the view that this Court does not have jurisdiction to make orders with respect to an ex-nuptial child in circumstances where the orders are directed toward a foetus. That is, in my view the jurisdiction of this Court in respect of ex-nuptial children extends only to ex-nuptial children once born."

Property - Entire equity in husband's post-separation property bought with new wife included in pool - Share options and rights

In Nielson [2012] FamCA 70 (24 February 2012), the husband submitted that only one half of the equity in a property bought after separation by him with his new wife (Ms F) (for $3.1 million funded by a $2+ million mortgage and capital of $1+ million from the husband and $50,000 from Ms F) should be included in the asset pool. His former wife (W) argued that the entire equity should be included. Loughnan J agreed with W but for different reasons (set out at paras 66-69). The parties also disagreed as to whether the husband's share options and rights arising out of his employment were to be treated as property or as a financial resource (the value of which was agreed at the mid-point between two competing valuations). Loughnan J, for the reasons set out at paras 77-81, included the share options and rights in the pool as "property".

Property - Company valuations - Historical valuation of real estate

In Kirk & Kane [2012] FamCA 115 (13 March 2012), Fowler J examined divergent valuations of company assets (forming part of the parties' $6 million asset pool) adduced by each party, outlining at paras 35-38 and 48-66 why the wife's expert was to be preferred. The husband also disputed that expert's historical valuation of another commercial property as at commencement of cohabitation, arguing that it ignored the cost of his $250,000 renovation. Fowler J at paras 68-79 again preferred the evidence of the wife's expert who used a net rental method of valuation and was of the view that the husband's improvements would not have affected the valuation.

Children - Interim order allowed father to begin overnight time with child aged 23 months

In Cook & Aiken [2011] FMCAfam 1465 (21 September 2011), the parties could not agree whether their 23-month-old daughter's time with her father should extend overnight. The mother argued for a cautious approach, it being "too early to experiment" with overnight time. Scarlett FM, noting that it was an interim hearing, said at paras 25-27 that it was not in issue that the child had been closely involved with both parents, had been in day care from eight months, settled with a bottle and 15 times had been left in the father's care. Scarlett FM at paras 42-45 reviewed s.65DAA(3)(b) which "must clearly be applicable to overnight time when one is dealing with a child as young as this child is". An interim order was made for overnight time once a week with several hours on three other days, the parties to attend a further reportable child dispute conference with a family consultant under s.11F FLA for a review of the child's adjustment to spending overnight time after the child had spent at least two nights in the care of the father.

Children - Appointment of psychiatrist as court expert to assess parties and nine-year-old child

In Sewell & Jacobs [2011] FMCAfam 1377 (11 November 2011), Neville FM, upon a review of relevant legislation and case law, appointed a psychiatrist under Division 15.2 of the Federal Magistrates Court Rules to assess the parties and a nine-year-old child and report as to concerns expressed by the mother and the ICL. In doing so, Neville FM at para 24 referred to Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15, where Gummow, Callinan and Crennan JJ of the High Court of Australia said: "An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available."

Children - Mother's proposal for Catholic schooling at her own expense preferred to father's government school proposal

In Dawson [2012] FMCAfam 94 (2 February 2012), the parties had in the past agreed to a Catholic upbringing for their children (who were attending a Catholic primary school) but since separation they disagreed. The father said he could not afford their private secondary education. The mother was willing to pay the children's school fees herself if she had to, in preference to the government schooling the father was proposing. Allowing the mother's proposal, Bender FM applied the full court's judgment in Re G: Children's Schooling [2000] FamCA 462 as to a child's best interests being the determining issue in the context of ss.60B, 60CA and 60CC of the FLA.

Property - Valuation of minority shareholding in private company

In Eaton [2012] FMCAfam 9 (17 January 2012), expert evidence adduced by each party differed as to the discount to be applied to the $1.2 million basic or face value of the husband's shares in a private company (operated by three families since 1954, the husband being the general manager of its business) to account for his minority shareholding. Jarrett FM examined the company's share structure, its articles restricting the sale of shares and voting rights and was satisfied that the husband did not have "a controlling shareholding in the company" (para 20). Jarrett FM proceeded at paras 26-44 to review the competing expert evidence as to the discount to be applied and the case law as to the court's approach to the valuation of minority interests, concluding on the facts of the case that an appropriate discount was 35 per cent of the asset-based value of the shares so that "Mr Eaton's shares should be seen as having a value of $230.65 per share - a total asset value of $782,364.80".

(*From the Case Notes of  ROBERT GLADE-WRIGHT)


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