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Family law judgments

Every Issue

Cite as: April 2011 85(4) LIJ, p.60

Child support

SSAT appeal – Failure to identify legal entities or business interest

In Crabbe (SSAT Appeal) [2011] FMCAfam 24 (14 January 2011) the appellant argued that the Social Security Appeals Tribunal (SSAT) erred in finding that the company that employed him and the business partnership it traded as (in which he held a 20 per cent share) were, having regard to “business reality”, one and the same, classifiable as a “business”. Coker FM agreed. Another ground of appeal, that the SSAT had wrongly found the appellant’s income to be $344,000 (calculated as one-half of company profit plus the salary the SSAT found the company had paid him), was also allowed, Coker FM at [39] saying:

“Finally, it was submitted, and it appears, I must say, to be unanswerable, that there is no basis in law for the company to be required to distribute the amount of $314,000 or in fact any other amount to the appellant, as he is not entitled to receive a dividend, pursuant to the incorporation of the company . . . ”.

Children

Abandoned children refusing to see father

In Abood & Khouri [2010] FMCAfam 900 (9 December 2010) three young children had not spent any time with their father for four years and were currently refusing to spend any time with him, including supervised time. The husband (who had not paid child support in that period) claimed that the wife (who alleged serious violence on his part and that the children were at risk if they were to see him) had alienated the children from him. Finding that such a risk did not exist, Bender FM concluded:

“I intend to make orders that make provision for the parties and the children to engage in intensive therapeutic intervention, after which the children are to commence spending time with their father on a supervised basis once the therapeutic counsellor deems the children are ready for that step”.

Also see Nhan & Vuong [2010] FMCAfam 989 (9 December 2010) where the father’s rigid parenting approach had led his daughters of 11 and 13 to refuse to see him, Bender FM making an order for therapeutic intervention.

Children

Child’s surname – immunisation

In Redden & Mains [2010] FMCAfam 1338 (9 December 2010) Dunkley FM reviewed the evidence and authorities at [73]-[82] in relation to change of a child’s surname, ruling against the hyphenation of the child’s name sought by the father, and at [83]-[122] reviewed the evidence (including differing medical evidence adduced by the parties) as to the implications for the child of being immunised, concluding that an order for immunisation should be made.

Children

Grandparent to spend time with child

In Harwood & Retziaff [2010] FMCAfam 1335 (6 December 2010) the mother opposed the paternal grandfather’s application for an order to spend time with his 8-year-old grandchild, the daughter of his son who died in a traffic accident before the child was born. On reviewing the authorities, including Mulvaney & Lane (2009) FLC 93-404 (FC), as to the applicability of s60CC factors to applications for parenting orders brought by non-parents, Cole FM granted the paternal grandfather a graduated program of time with the child.

Children

Grandparents undermining child’s maternal attachment

In Faulk & Anor & Deitz [2010] FMCAfam 1285 (11 November 2010) Bender FM reduced the time a child spent with the paternal grandparents because of their actions in undermining the child’s relationship with the mother “in their belief that she does not properly care for their grandchild”.

Children

Type and frequency of drug testing

In Lendrum & Carriel [2010] FMCAfam 1322 (30 November 2010) Sexton FM at [32]-[43] reviewed the evidence of the mother’s history of drug abuse; medical opinion as to her prognosis including the likelihood of a relapse; and evidence from a forensic toxicologist as to the function and cost of and the procedure for hair follicle testing. Sexton FM found on the evidence that a relapse was highly likely and so made an order for the supervision of the mother’s time with the child. An order was also made that the mother submit to a timetable of urinalysis and hair follicle testing.

“De facto relationship”

Parties merely dating – summary dismissal

In Ricci & Jones [2010] FMCAfam 1425 (17 December 2010) the mother applied successfully for the summary dismissal of the father’s property application. The parties never lived together but did have a child. They dated for several months until the father ended their relationship when the mother became pregnant. Riley FM examined whether it could be said that the child was a “child of [a] de facto relationship” within the meaning of s90SB(b) of the Family Law Act (the Act); s4AA of the Act which defines a “de facto relationship”; and the authorities, in particular Moby & Schulter [2010] FamCA 748 (Mushin J), concluding: “Taking all of the matters into account that are stipulated by s4AA of the Act, it seems to me that there is no prospect at all that the relationship between the applicant and the respondent could be regarded as a de facto relationship”.

Lawyers

Conflict of interest

In two recent cases lawyers were held to be in a conflict of interest and were ordered to cease to act – in Karapataki [2011] FMCAfam 6 (5 January 2011) (Walters FM) and Seidler [2010] FMCAfam 1394 (16 December 2010) (Willis FM).

Property

Husband allowed to stay in home

In Oswald & Malkin [2010] FMCAfam 1337 (3 December 2010) Scarlett FM resolved a dispute between the parties, each of whom sought a transfer of the home to themselves (the wife claiming that its single level would suit her neck and back problems and relieve her “depression”, the husband wishing to continue living there), by allowing the husband to remain there and ordering the wife to transfer her interest in it to him. Scarlett FM at [73] and [86] concluded: “What the wife has not done is to provide any medical or psychological evidence in support of her claim that returning to live in the property, admittedly in the absence of her husband, would assist her to deal with these [health] issues . . . It is clear . . . that the husband has the ability to raise funds to pay the wife, as the property is unencumbered. Why, one asks rhetorically, should he have to move? . . . I am not persuaded that an order should be made requiring the sale of the property because neither party can agree who should live there. I do not see that to be just and equitable”.

ROBERT GLADE-WRIGHT, a former barrister and accredited family law specialist, is the founder of The Family Law Book, a looseleaf and online service: see www.thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol. References to sections of an Act in the text refer to the Family Law Act 1975 (Cth). The numbers in square brackets refer to the paragraph numbers in the judgment. The full text of these judgments can be found at www.austlii.edu.au.

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