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Family law judgments

Every Issue

Cite as: March 2011 85(3) LIJ, p.58

Children
Child refusing to see father

In Tambe & Rangan [2010] FMCAfam 1092, where an 8-year-old child was refusing to spend time with the father as previously ordered, Monahan FM agreed with the family consultant’s recommendation that reportable child-inclusive family therapy occur before the making of a final decision.

Children
Dispute as to choice of school

In Dreyfus & Kearney [2010] FamCA 1054 a dispute as to choice of school was resolved by Ryan J who required the child to be enrolled in the school chosen by the child from two schools the mother allowed him to choose from. Relevant were the mother’s payment of all school fees, the father’s failure to pay child support or school fees and the likelihood of future default. In Whitton and Anor (No 2) [2010] Fam CA 1119 Austin J ordered that the children attend the same school, near the home of the paternal grandmother who had been granted equal shared parental responsibility. Austin J held that the children’s best interests were the paramount consideration, not the mother’s freedom to enrol the children near to where she might decide to live.

Children
Overseas holiday

In Sefu & Gyasi [2010] FMCAfam 1004 Scarlett FM declined the father leave to holiday overseas for four weeks in the Christmas vacation with his son. Relevant were that the destination was not a Hague Convention country, the inadequacy of the proposed security ($5000) and that “the proposed trip . . . seem[ed] to be more in line with the wishes of the father than the needs of the child”. In Cadena & Beltran [2010] FMCAfam 1165 the mother proposed a $20,000 security for her travel with a child to a Convention country but Halligan FM granted the father’s application for a $200,000 security, to be reduced to $50,000 on Australian recognition of the mother’s qualifications and her permanent Australian residency.

Children
Parenting plan inadmissible

In Roux & Herman [2010] FMCAfam 1369 Riethmuller FM held that s10J as to communications in family dispute resolution (FDR) being inadmissible did not extend to an agreement reached at the end of that process. Riethmuller FM held, however, that the father’s allegation that he was exhausted after four hours of FDR and had been coerced into signing was prima facie evidence of disqualifying factors under s63C(1A), which could not be tested as to the surrounding circumstances of the agreement given the operation of s10J.

Children
Party declared a vexatious litigant

In Handley & Dantes [2010] FamCA 1076 Barry J declared the father to be a vexatious litigant under s118, restraining him from filing any child-related application except by leave. The mother was awarded costs.

Children
UK relocation allowed – sole responsibility so s65DAA not triggered

In Bryce & Bonig [2010] FamCA 999 (10 November 2010) Dawe J allowed the mother to relocate from Darwin to the UK with children aged 10 and 12 on terms that included the payment of $30,000 as a security deposit. Applying MRR v GR [2010] HCA 4 Dawe J held at [174] that the presumption of equal shared parental responsibility was rebutted, not being in the best interests of the children “primarily because of the ongoing conflict . . . and the difficulties in communication” and that s65DAA (as to equal or substantial and significant time) did not therefore apply. Dawe J at [71] noted the Full Court as saying in MRR v GR that when s65DAA was not triggered, “the only requirement would be to make a parenting order which was in the best interests of the child having regard to matters in s60CC”. On reviewing those matters, Dawe J said at [140]: “The evidence establishes that the children will be able to maintain meaningful relationships with both of their parents, even if the mother and children move to the United Kingdom”.

See also Hardie & Capris [2010] FamCA 1046 (23 November 2010) (Murphy J).

Costs
Costs agreement set aside

In McMurphy & G and G (A law firm) [2010] FamCA 1032 at [164]-[177] Cleary J set aside a costs agreement for not being fair and reasonable.

Costs
Lawyer ordered to pay costs

In Dwyer & Brent & Anor [2010] FMCAfam 1224 Riethmuller FM ordered the mother’s former lawyer to pay costs fixed at $3300, being the cost of a hearing which had been lengthened by a notice of risk of family violence filed by the lawyer alleging that the father “physically beat” the parties’ child, based on instructions that the father had smacked the child and that such physical discipline was not appropriate.

Property
Asset pool granted to wife

In Walmsley (No 5) [2010] FamCA 1034 the wife’s property proceedings were undefended. Granting the wife’s application for the entire asset pool ($445,000) except the husband’s car, Dawe J at [81] agreed that since separation, the wife had “provided for the husband in a manner which far exceed[ed] his contributions during the marriage”. Dawe J noted the husband’s cessation of child support payments, child support arrears, his debt for legal fees, gambling debts and his share of tax losses on an investment property, concluding at [100]: “The husband has already received significant financial benefits therefore the orders which will not entitle the husband to any further share of the asset pool are just and equitable in all the circumstances”.

Property
Contributions during long separation

In Polonius & York [2010] FamCAFC 228 a couple with two children were together for 22 years then separated under the one roof for 10 years, whereupon the wife moved out. At separation their assets were exceeded by the husband’s debts to creditors. By the time of the hearing, the wife had acquired assets valued at $870,000. The Full Court held at [92] that in long separation cases an asset by asset approach can be appropriate.

Property
Interest in family trust – asset by asset approach

In Ogden [2010] FMCAfam 865 at [82], [119]-[120], [126]-[128] Bender FM held that the wife’s interest in a family trust was “property” and took an asset by asset approach, finding that the husband had made no contribution in respect of that interest.

Property
Property orders set aside

In Hogan [2010] FMCAfam 1255 Neville FM set aside a consent property order due to a finding that the husband had harassed the wife into consenting, also considering her “manifestly inadequate” settlement. In Simon & Michel [2010] FMCAfam 1055 Burchardt FM set aside an order as the husband had failed to disclose his new employment, with a salary package of $200,000. Burchardt FM made a further splitting order in favour of the wife.

Property
Sole occupancy

In Grenfell and Ors [2010] FamCA 1078 Dawe J granted sole occupancy of the home to a medically ill wife due to “the stress of continued joint occupation”, despite the husband’s “asserted difficulties . . . in finding and paying for other accommodation”. In Ledarn [2010] FamCA 1107 Cronin J gave the husband exclusive occupation of business premises.



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.thefamily lawbook.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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