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Family law judgments

Every Issue

Cite as: December 2011 85(12) LIJ, p.60

Children

Parenting order inconsistent with family violence order

In Brainard & Wahlen and Anor [2011] FamCA 610 (5 August 2011) Austin J heard parenting proceedings in a Magellan case where parenting orders would be inconsistent with the terms of family violence orders each party had obtained against the other. Austin J said at [113]:

“The literal terms of the family violence orders are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence orders and explain how those parenting orders will operate, as required by s68P(2)(a), (b) of the Act”.

Austin J then proceeded to give the parties an explanation pursuant to the Court’s obligations under s68P(2)(c) and (d) of the Family Law Act as to the inconsistency, the necessity to make inconsistent parenting orders, the child’s best interests, the matters covered by the parenting orders, which family violence orders were consistent, and how contravention of both orders was to be dealt with.

Children

Relocation to New Zealand allowed

In Harding & Crawley [2011] FamCA 581 (26 July 2011) the mother of a 5-year-old child was allowed by Kent J to relocate to New Zealand from Queensland where the father had been spending alternate weekends with the child. The father had also had to issue Hague Convention proceedings to bring the mother back when she moved to New Zealand unilaterally.

Procedure

Appearance by telephone – procedural fairness

In Patison & Farington-Manning and Anor [2011] FamCAFC 167 (15 August 2011) May J set aside a federal magistrate’s refusal to grant leave to a lawyer to appear by telephone. After discussing the purpose of an appearance by telephone and the differences between the Federal Magistrates Act and Family Law Rules governing it, May J said at [34]–[38]:

“As can be seen a Federal Magistrate [FM] has a wide discretion to allow hearing by audio link, in this case via a telephone. The [FM] was correct in doing so in the circumstances of this case. The [FM] was entitled to form the view that there were difficulties in hearing the matter by telephone and direct that in future solicitors attend in person. However the problem was that the [FM] took the view that in some way the solicitor was behaving inappropriately based partly on an earlier hearing. Having listened to the audio transcription of both hearings and read each transcript it is apparent that for whatever reason the [FM] became exasperated and did not afford the solicitor procedural fairness. It is not immediately apparent what the solicitor did to cause this result”.

Property

Conflict of interest – lawyer restrained from acting for party

In Nettle [2011] FMCAfam 414 (20 April 2011) the wife in property proceedings sought an injunction restraining the husband’s lawyer from continuing to act for the husband. The wife deposed that the husband’s solicitor had pre-marital discussions about a pre-nuptial agreement, wills and other property matters with her husband and subsequently with her, as to which the wife said she “gave information confidential to [her]self which [she] would not have done if [she had been] forewarned about the current sorry state of affairs”. She said that she felt “quite violated”.

After stating the relevant law, Baumann FM said at [12]–[15]:

“One can well understand a busy solicitor, when confronted with the parties turning up . . . some two weeks before their marriage, trying to assist them with helpful, pragmatic advice . . . That advice, however, was based on what the wife told Mr [C], and in so doing he must be seen to have gathered (not in an inappropriate way) information of a confidential nature, including nuances about the wife’s attitude, feelings, concerns and position.

“ . . . There are particular sensitivities that exist in family law litigation and the integrity of the justice system, where lawyers as officers of the Court play an important and significant role, benefits from litigants who become adversaries starting from an equal position. Theoretically, the husband, with Mr [C] acting for him, is in a superior position potentially, because of information disclosed by the wife to the solicitor and his firm. In my view the solicitor for the husband and his firm should be restrained from acting for the husband.”

Property

Husband’s interest in farm held on trust for his mother

In Markoska [2011] FamCA 572 (19 July 2011) Murphy J heard, as a discrete hearing, the application of the respondent husband for a declaration that he held his one-third interest in his family’s farm on trust for his mother, the second respondent (M). The land in question had been acquired when the husband was 17, before the wife and husband began living together. The first four lots were held by the husband, the mother (M) and his father (E) as tenants in common in equal shares and a fifth lot was acquired in the husband’s name but transferred to himself and his parents in the same shares – E’s share being transmitted to M on E’s death. The husband and M gave evidence that the farm was run by M and E until E’s death in 2006 (four years after the husband and wife married), after which M conducted it alone.

The husband’s case was that M and E had paid the entire purchase cost of the farm, his name being placed on title in anticipation that he would pursue a career in farming and on the basis that he would be employed on the farm but not own his one-third interest unless he paid his parents a one-third share of the purchase price. A year after his marriage the husband decided not to be a farmer, finding work as a public servant instead.

The wife relied on the presumption of advancement in respect of the husband’s one-third interest. After reviewing the cases relevant to the presumption and resulting trusts, and the evidence, Murphy J made the declaration sought by the husband, saying at [113]:

“I consider it is highly likely that the arrangement . . . is as contended by the husband and M. It was considered by E likely (I would venture assumed) at the time of transfer that the husband would follow his father’s footsteps and farm the land (with the result that the land, and farm, would stay ‘in the family’). The transfer of the interest reflected that assumption. But if that was to occur, the husband would not receive it for nothing; he would pay for it with interest. If it did not occur, the land would stay under the father’s control and, in due course, the legal title would reflect that”.



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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