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Family law judgments

Every Issue

Cite as: Cite as: March 2012 86 (03) LIJ, p.58

Accrued jurisdiction

Husband’s application to join law firm as a party to wife’s application to set aside financial agreement dismissed

In Noll and Anor [2011] FamCA 872 (11 November 2011) Le Poer Trench J dismissed the husband’s application for the Court to invoke its accrued jurisdiction to determine, in proceedings in which the wife was applying for an order setting aside a s90C financial agreement, his action in damages against a law firm for negligence, holding after a review of the law relevant to the joinder of a third party to family law proceedings that the two claims were not part of a “single justiciable controversy”.

Children

Father’s appeal against termination of his time with child dismissed – emotional abuse by both parents likely

In Summerby & Cadogen [2011] FamCAFC 205 (20 October 2011) the Full Court (Thackray, Strickland and Young JJ) dismissed the father’s appeal against Wilson FM’s order that he was to have no further contact with his 5-year-old daughter. The father had been spending time with the child but his (ultimately discredited) allegations of child sexual abuse against the mother’s new partner led to the mother’s decision to begin withholding the child from the father; counter-allegations of abuse; a child protection order; the mother’s disappearance and 10 contraventions; the child’s “unwillingness” to see her father; and a 14-day trial over two years. The Full Court said at [87]:

“Unpalatable as it clearly was, his Honour . . . had to take account of the fact that the child’s primary carer would ‘actively try and destroy the relationship’ with the other parent if contact was ordered. Given the ‘emotional abuse’ to which he found the child would be exposed in such circumstances, we consider his Honour was right not to take into account the conduct of the mother to any greater extent than he did”.

Financial agreement

Husband received less than he expected – impracticability

In Sanger [2011] FamCAFC 210 (28 October 2011) Kemp FM granted the wife’s application for enforcement of payment of $350,000 by the husband to her under a financial agreement, dismissing the husband’s application for an order setting the agreement aside on the ground that the subsequent sale of properties at prices below their value as recited in the agreement had not given him the 40 per cent share of the parties’ assets as agreed. The husband appealed to the Full Court (Coleman, May and Thackray JJ). The Full Court at [63]-[67] reviewed contract law, including the function of courts to give effect to a bargain, and at [71] observed that the “covenants of the BFA embodied the risks which the parties clearly accepted” and the “recitals to the BFA made clear that they understood those risks”. The Full Court disagreed that the agreement was “impracticable” and dismissed the appeal, saying at [85]-[86]:

“The husband’s personal covenant to pay the wife any shortfall was always dependent upon the husband’s personal capacity to pay such shortfall. The BFA created, and the wife accepted, an unsecured contingent entitlement in relation to any shortfall . . . the provisions of s90K are not designed to, and do not facilitate a party escaping from what proves, or is perceived to be a ‘bad bargain’.”

Procedure

Registrar’s refusal to abridge time – when an application should be listed urgently

In Myers [2011] FMCAfam 1104 (24 October 2011) at [32]-[33] and [52], Halligan FM (disagreeing with Lynch & Dunstan [2011] FMCAfam 389 and Zeller & Whitby [2011] FMCAfam 431) held that a registrar’s refusal to list a child support stay application urgently was reviewable under s104(2) of the Federal Magistrates Act. Halligan FM said at [87]-[89] that it was “not for me or a Registrar . . . to pre-judge [a] substantive application” and then set out the circumstances in which a substantive application should be listed urgently.

Property

Discovery – party granted certificate against self-incrimination

In Aitken & Murphy [2011] FamCA 785 (12 October 2011) the applicant filed an affidavit deposing that he had made partial discovery but objected to producing certain documents relating to undisclosed income between 2004 and 2010 on the ground that their production might tend to prove that he had committed an offence or was liable to a civil penalty. The applicant applied to Young J, who considered the relevant case law and granted a certificate under s128 of the Evidence Act 1995 (Cth) that such evidence could not be used against him in proceedings under the Taxation Administration Act, Crimes Act and Criminal Code (all Cth).

Property

Overseas superannuation excluded from pool – financial resource

In Perry & Nesbit [2011] FMCAfam 1195 (11 November 2011) Whelan FM excluded the husband’s overseas superannuation interest from the asset pool, treating it instead as the husband’s financial resource, applying the Full Court’s approach in SHL & EHL [2006] FamCA 1287.

Property

Post-separation inheritance excluded from pool

In Victor [2011] FMCAfam 920 (16 September 2011) a 22-year marriage produced four children and assets of $750,000. Two years after separation the wife inherited $700,000 as sole beneficiary of the estate of her former next door neighbour who with his late wife had known the wife since she was three and regarded her as their own daughter. Applying the Full Court’s decision in Bonnici (1992) FLC 92-272, Burchardt FM excluded the inheritance from the asset pool, saying at [42]-[44]:

“The inheritance was an asset . . . that came into the wife’s possession after separation and to which the husband had made no effective contribution. In these circumstances, prima facie, these assets should be excluded from the pool [subject to the Court first considering] whether there is a sufficiently significant asset pool excluding the inheritance to enable a just and equitable outcome . . . ”.

Property

Short (three year) de facto relationship – order reflected parties’ unequal interest in property adjusted for improvements made

In Scofield & Shaw [2011] FMCAfam 1296 (30 November 2011) a de facto couple held a property as tenants in common in shares 63 per cent to the respondent and 37 per cent to the applicant. They separated when the applicant assaulted the respondent and an apprehended violence order was made on the application of the police on her behalf. On reviewing relevant case law, Brewster FM dismissed the applicant’s claim for payment of an occupation fee by the respondent during her sole occupancy of the property (when she paid rates and other outgoings but had no mortgage payments to make), holding at [19] that there had been no ouster, the applicant having been excluded from the property not by the respondent but by “operation of law” when the applicant was restrained from entering the property as a condition of his bail.

Brewster FM did, however, make an allowance for the applicant’s payments towards renovations and furniture and one-half of a joint credit card debt, holding at [24] that such “an accounting exercise” was appropriate in the case of a short relationship. On that basis, it was ordered that the applicant be paid $186,595 and transfer his interest in the property to the respondent.

Property

Small asset pool – wife to receive entire pool

In Shroeder & Drummond [2011] FamCA 741 (22 September 2011) Ryan J gave the mother of two young children, after a relationship of 10 years, the entire pool valued at $100,000, half of which was her own superannuation. The order was constituted by a contributions assessment of 70 per cent in the wife’s favour and a further 30 per cent for s75(2) factors. The husband’s debts of $50,000 were excluded from the pool and his undisclosed inheritance was said to be available for the repayment of those debts.




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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