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Family law judgments

Every Issue

Cite as: April 2012 86 (04) LIJ, p.61

Adult child maintenance

Contravened periodic order replaced by lump sum order

In Bridges [2011] FMCAfam 1288 (13 December 2011) the father was in default under an order that he pay $84.40 weekly in child maintenance to his daughter until completion of her first tertiary qualification. The mother sought variation of the order to a lump sum order for payment of $5486 to cover the remaining 65 weeks of her daughter’s degree (and that in default the father’s car be sold and the amount paid to her from the proceeds). Burchardt FM granted the application under s66S(2)(d) of the Act.

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”.

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 2 per cent in his favour.

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

Contributions – wife awarded $150,000 under Kennon

In Dixon [2011] FMCAfam 1244 (2 December 2011) a 22 year marriage produced four children and net assets of about $750,000. It was described as a “troubled” relationship due to the husband’s “very substantial and regular alcohol consumption and use of marijuana” which “made his moods during the relationship extremely volatile [such] that he subjected the wife and the children . . . to considerable amounts of abuse”. Where contributions were found to have been otherwise equal, Burchardt FM held at [64] as to the wife’s Kennon argument that it was “appropriate that there be a 20 per cent loading in the wife’s favour under this heading”.

Property

Distinction made between parent’s “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

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.

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”.

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”.




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 full text of these judgments can be found at www.austlii.edu.au.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

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