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Family law judgments

Every Issue

Cite as: December 2010 84(12) LIJ, p.55

Child support
SSAT appeal – “income” – “financial resource”

In Manchester (SSAT Appeal) [2010] FMCAfam 947 (7 September 2010) Dunkley FM held that the Social Security Appeals Tribunal (SSAT) was in error to rule that a payer’s overdraft borrowings, monthly financial help from his brothers and the proceeds of sale of a property (without evidence as to the sale’s assessability for capital gains tax) were income or a financial resource. Dunkley FM held that the SSAT’s failure to quantify the needs of the children or consider hardship was also in error as a court “must have regard to” such matters under s117(4) of the Child Support (Assessment) Act in determining whether an outcome is “just and equitable”.

Children
Equal time v home base

In Holman-Lloyd & Lloyd [2010] FamCA 840 (22 September 2010) a 13-year-old daughter (V) (whose relationship with the mother was “conflicted”) lived with the father and, since separation, the sons of seven and nine had been living “week about” with each parent. Ryan J at [1]-[2], however, said that although “theirs [was] . . . a poisonous relationship with little prospect of improvement” the parties did agree that “the younger children require[d] a main base and . . . should live primarily with one of them”. On ordering that they spend 10 nights a fortnight with the mother, Ryan J at [169] said:

“I am strongly satisfied [that] if the boys live primarily with the father during school term, their relationship with the mother is likely to suffer the same fate V’s has. The family consultant said the boys’ relationship with the mother should be prioritised over being able to live most of the time with V. I agree”.

Children
Expert given document without consent

In Nepean & Treloar [2010] FamCA 781 (23 August 2010) at [18] Fowler J discharged the appointment of a single expert psychiatrist who took into account a document supplied by one party without the consent of the other in breach of FLR 15.54(3).

Children
Five nights with father, nine with mother

In Bahl & Brandon [2010] FMCAfam 630 (20 August 2010) Bender FM dismissed the father’s application for a 10-year-old child to spend “week about” time with each parent, ordering that the parties’ existing arrangement of spending five nights a fortnight with the father continue.

Children
Overseas relocation allowed

In Hannigan & Sorraw [2010] FamCA 807 (13 September 2010) Cowen J allowed the mother to relocate with a child to the US, her country of origin. The pros and cons of each parent’s case were weighed at [168]-[183] and the determining factors set out at [228]-[229].

Children
Overseas travel allowed

In Hopkirk [2010] FamCAFC 187 (17 September 2010) O’Ryan J allowed an appeal against Riley FM’s refusal to allow the mother to take a child to the UK to see her family for three weeks in alternate years, saying at [136] that the father’s issues as to the child’s young age and her comfort while overseas had been addressed by the mother.

Children
Parenting order to grandparents

For such orders see Paton & Williams [2010] FamCA 855 (27 September 2010) (Austin J) and Miels & Moulden [2010] FamCA 875 (22 September 2010) (Burr J).

Children
Variation of consent parenting order

In Reid & Lynch [2010] FamCAFC 184 (17 September 2010) the Full Court allowed an appeal against Neville FM’s refusal to dismiss the father’s application to re-litigate consent parenting orders. Finn J at [23]-[26] said that there was “no changed circumstance” since the orders were made; the applicant’s claim that he had not seen a family report was unsupported by sworn evidence; his claim not to have understood the nature of the orders did not overcome Rice & Asplund (he not having sought to appeal the orders or seek their discharge); and the non-implementation of the orders did not affect their enforceability.

Procedure
Change of venue

In Scott & Walker [2010] FMCAfam 1081 (28 September 2010), where the mother lived in Victoria and the father in the Northern Territory, Turner FM discussed the principles relevant to change of venue.

Property
Financial contributions exceeded value of pool

In Sindal [2010] FamCA 784 (6 September 2010) the wife’s inheritances and pre- marital assets were greater in value than that of the $1m asset pool after a childless nine-year relationship. Fowler J assessed contributions at 80/20 to the wife and said this of s75(2) at [70]: “ . . . [I] take the view that there should be no adjustment . . . The husband is earning more than the wife. True the wife will have the benefit of more capital for the future but I find that . . . that is just. Although the wife will have a continued earning capacity that capacity will, after the sale of the hotel, cease until she is re-employed”.

Property
Inconsistent pool approach – wrong s75(2) adjustment

In Baxter [2010] FamCAFC 183 (17 September 2010), a case involving both super and non-super (house), the Full Court said at [31] “that his Honour [had] moved from a one-pool approach . . . to a two-pool approach” in assessing contributions. The Court also found the s75(2) adjustment (made only in relation to the non-super) to be erroneous, saying at [45]-[46]: “ . . . where both were working for much of the time it is artificial . . . to regard either party as having made any indirect contribution of any real worth to the other’s superannuation . . . That does not, of course, mean that those interests should then be overlooked . . . [when] considering . . . a s75(2) adjustment . . . or assessing the justice and equity of the ultimate orders”.

Property
Interim costs denied

In Abrams [2010] FMCAfam 560 (3 August 2010) Willis FM dismissed an application for interim costs where the wife (who had received earlier property distributions) could not point to an available source for the proposed funding, the remaining asset pool being insufficient to enable the proposed payment of $80,000. There was also no evidence of the cost of valuations.

Property
Non-disclosure

In Gerber [2010] FamCA 861 (24 September 2010) at [380] Coleman J found that the husband had failed to fully disclose his financial circumstances post-separation or at trial. Applying Weir (1993) FLC 92-338, Coleman J notionally increased the $1.6m asset pool by $500,000 under s75(2)(o) because of benefits derived by the husband after separation from a business in which he was found to hold an interest.

Property
Short marriages

In Brandow [2010] FMCAfam 1026 (24 September 2010) Brewster FM discussed the case law as to property division after a short marriage.

Property
Subpoena – discretionary trust

In Read & Chang [2010] FamCA 876 (9 June 2010) at [15]-[16] Cohen J granted the husband leave to inspect a memorandum of settlor’s wishes in respect of a trust of which the wife was a discretionary beneficiary.



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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