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Family Law Judgments

Every Issue

Cite as: April 2014 88 (04) LIJ, p.61

Adult child maintenance

Court varied maintenance order where twins had declined job offers

In Wadsworth & Wadsworth [2013] FCCA 2043 (11 December 2013) Judge Monahan varied an adult child maintenance order made to enable twins to complete their tertiary education by reducing the maintenance payable from $1250 per month to $1000 per month. The father’s case was that he had “made tentative arrangements” for the twins to be offered “casual full-time employment”. The Court said at [67]-[68]:

“. . . the Court is of the view that the twins’ decision not to actively seek any casual or part-time employment prior to the conclusion of their university studies amounts to a changed circumstance that may justify a variation to the current orders . . . [While they] . . . appeared genuine in their desire to concentrate on their university studies, their evidence that they proposed to study full time during most of their university vacation . . . was not believable”.

Discovery

Legal professional privilege – Evidence should identify the basis of such a claim

In Strahan & Strahan [2013] FamCAFC 203 (18 December 2013) the Full Court (May, Thackray & Murphy JJ) dismissed the wife’s appeal against Dawe J’s refusal of legal professional privilege which the wife claimed attached to some of her documents. Dawe J had found at [20] that the descriptions given in the wife’s List of Documents were “not a sufficient description to establish the necessary basis for the privilege”. Murphy J (with whom Thackray & May JJ agreed) cited at [30] from the judgment of the Full Court of the Federal Court in Barnes v Commissioner of Taxation [2007] FCAFC 88 about the claim for privilege made in an affidavit:

“This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources . . . However, no evidence has been adduced from any of those persons . . . In this context, the fact that Mr Barnes’ affidavit does not clarify the reason why any specific document came into existence means that the court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory . . .

“The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185 (Kennedy), Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 . . . [and] Grant v Downes [1976] HCA 63. Where possible the court should be assisted by evidence of the thought process behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is manifestly inadequate as it is in this case. As in Kennedy, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at [168] considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.”

Property

De facto thresholds – “De facto relationship” in dispute – Injunctions set aside for want of jurisdiction

In Norton & Locke [2013] FamCAFC 202 (18 December 2013) the Full Court (Bryant CJ, Murphy and Benjamin JJ) set aside interim injunctions to restrain an alleged de facto husband (the appellant) from evicting the respondent from a property or disposing of the property and requiring him to meet outgoings. The existence of a de facto relationship was disputed. The Full Court said at [13]:

“The terms of s114(2A) are clear; the court’s power to grant injunctions pursuant to the section can only be granted ‘in a de facto financial cause’. There is no ‘de facto financial cause’ until a de facto relationship is established and the additional ss90SK and 90SB conditions met . . . [thus no] jurisdiction to make an order of the type contemplated by s114(2A) . . .”

Property

Full Court upholds decision that leave to proceed out of time is not required in respect of a foreign divorce

In Anderson & McIntosh [2013] FamCAFC 200 (13 December 2013) the Full Court (Bryant CJ, May & Thackray JJ) dismissed an appeal against Murphy J’s decision (in McIntosh & Anderson [2013] FamCA 164) where his Honour held that the 12 month time limit to institute property proceedings under s44(3) of the Family Law Act refers to a divorce order made under the Act so does not apply to a divorce issued in a foreign jurisdiction.

Property

Property order set aside where the notion of “special skill” had been applied

In Kane & Kane [2013] FamCAFC 205 (18 December 2013) the Full Court (Faulks DCJ, May and Johnston JJ) remitted a property case for rehearing where the trial judge said at [60] that “the law . . . recognise[s] a principle in which weight is attributed to the special skill of a spouse”. The husband had argued at [52]-[53] that his investment of $1,060,400 in shares in a company which grew to $3,420,294 at trial in less than two years was a “special contribution”. May and Johnston JJ stated at [102]-[103] that “[t]he result in percentage terms . . . [i]n our view . . . demonstrates in very clear terms that excessive weight was given to the husband’s contribution . . . [and] has brought about orders that are not just and equitable . . . ”. Faulks DCJ agreed, stating at [7] that “[t]he Act [FLA] does not require and in my opinion the authorities do not mandate any such doctrine [of ‘special contribution’]”.



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) unless otherwise specified. 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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