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Family law judgments

Every Issue

Cite as: March 2015 89 (3) LIJ, p.60

Children

Coercive order requiring mother to relocate is set aside

In Adamson & Adamson [2014] FamCAFC 232 (3 December 2014) the Full Court (Ainslie-Wallace, Murphy and Kent JJ) heard the appeal of the mother of a three year old child (“X”) from Judge Altobelli’s order requiring the mother to relocate. The child was 12 months old when her parents separated in 2011. The mother relocated from Sydney to Town S (200 kilometres north of Sydney) after the father assaulted her (at [17]-[18]). The father remained in Sydney but also relocated during the trial in 2013 to Town C on the NSW Central Coast (140 kilometres or a two hour drive from Town S). The dispute was the child’s time with the father and a coercive order made on the application of the father (notwithstanding that the mother and child had been living in Town S for two and a half years) that the mother relocate to within 20 kilometres of the father’s new home by January 2015. The Full Court at [35]-[41] examined the authorities, in particular Sampson & Hartnett (No.10) (2007) FLC 93-350 as to the application of s65DAA FLA where the Full Court said:

“To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move”.

The Full Court said at [44]-[45] that “the trial judge found . . . even on the mother’s proposal, that she and the child continue living in Town S whilst the father remained in Town C with the child spending time with the father as proposed by the mother, the child would continue to have a meaningful relationship with the father” so that “it could not be said that the coercive order was founded upon any identified need, in the child’s best interests, essential to establishing or maintaining the child’s meaningful relationship with the father”. The Court also observed at [47] that “the trial judge found that it was common to the proposals of both parents that it was in the child’s best interests that she should continue living with the mother” and that “it was not the father’s proposal that the child should live with him even if the mother did not herself relocate”. The Full Court concluded at [53] that the trial judge’s findings did “not sit comfortably with a conclusion that rare or exceptional circumstances existed . . . such as to justify a legitimate exercise of discretion to make the coercive order”. The appeal was allowed, the coercive order discharged, the order as to the father’s time with the child varied and the case otherwise remitted for re-hearing.

Property

Husband’s $3m inheritance post-separation – Global approach – Wife’s superior contributions during and since cohabitation

In Singerson & Joans [2014] FamCAFC 238 (10 December 2014) the Full Court (Bryant CJ, Ainslie-Wallace and Crisford JJ) considered a 15 year marriage where the husband inherited $3 million (value at trial) soon after the parties’ separation. Total assets were $7.4 million. Both parties appealed Jordan AJ’s property order, seeking a re-exercise of discretion by the Full Court. There were two children. Since 1999 the husband had been a retrenched valuer who suffered depression and had “sporadic” employment. The wife was the children’s primary carer and a pharmacist earning $250,000 per annum after tax (at [10]-[14]). In allowing the appeal, the Full Court said at [65]-[66] that “his Honour misled himself . . . in identifying only the four years between separation and trial as being the appropriate time upon which to assess contributions to the inheritance rather than across their 15 year relationship”. The Court found at [94] that the wife’s contributions during and since cohabitation were “significantly greater . . . to the property acquired prior to separation”, holding “[d]espite the timing of the receipt of the inheritance” that “over this long marriage a global approach is appropriate” (at [96]). Contributions were assessed at [97] as 52.5 per cent in favour of the husband. No further adjustment was made under s75(2).

Property

Case dismissed – Not just and equitable to make an order – Stanford applied – Parties’ informal agreement to keep assets separate

In Fielding and Nichol [2014] FCWA 77 (28 November 2014) Thackray CJ considered the application by Mr Fielding (“the husband”) for an equal property division when the parties’ 12 year de facto relationship ended. Ms Nichol (“the wife”) sought dismissal of the application so that “each party [kept] the real estate they owned at the start of the relationship” (at [3]). The applicant had a block of land. He was 74, the wife 66, and both were retired. They lived together in the wife’s home. Total assets were worth $465,254. The Court said at [17]:

“In arguing it would not be just and equitable to make any order altering property interests, counsel for the wife drew on . . . paragraph 42 of Stanford v Stanford [[2012] HCA 52] . . . argu[ing] that no ‘express or implicit assumptions’ of the parties about their property were brought to an end by the termination of their relationship. On the contrary, their relationship had been conducted on the basis that neither would ever have any interest in the property of the other”.

Thackray CJ observed that “the husband never executed a will in favour of the wife” (at [22]); that work by him on the wife’s property made no “real difference” to its value (at [24]); and that he sought an equal property division “because he devoted 12 years of his life to the relationship and because he had anticipated the parties would live out the rest of their lives together” (at [25]). After examining other authorities (at [30]-[50]), the Court held at [51]-[52] that “it would not be just and equitable to make any order altering property interests” given the parties’ agreement to keep their financial affairs separate; that their assets were “kept entirely separate”; “the absence of any evidence to suggest the husband refrained from accumulating other assets”; that (with a minor exception) neither made any provision for the other in their wills; the insignificance of the husband’s work on the wife’s property; his (and his son’s) rent-free accommodation; the ages and health of both parties; and that each party had “a significant asset which could be realised to meet needs”. The husband’s application was dismissed.


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. 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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