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Family law judgments

Every Issue

Cite as: September 2014 88 (09) LIJ, p.59

Children

Parenting order suspended to allow mother to relocate to Thailand for 18 months despite “Level 2” travel warning

In Eades and Wrensted [2014] FCWA 15 (5 March 2014) Walters J granted an application by the mother of children aged 10 and 4 for suspension of a parenting order (five nights per fortnight to father) to allow her to relocate from Perth to “City A” in Thailand for 18 months where her partner had obtained employment. The mother proposed six trips to Australia during that time. The father opposed the application citing “political unrest in Thailand . . . the amount of travel, the effect of the relocation upon the children’s schooling . . . ”. Walters J concluded at [72] that “the sojourn [would] not result in [his] having anything other than an ongoing, meaningful relationship with the children” and was satisfied at [192] as to “the father’s reference to City A’s unsavoury reputation . . . that the mother and Mr D [would] ensure that the children [were] insulated from the city’s seamy side”. As to travel advice Level 2 issued by DFAT (“exercise a high degree of caution”), Walters J at [208] accepted the mother’s evidence that she and Mr D were “responsible adults who [would] do everything in their power to ensure that the children [were] not exposed to any unacceptable risks”.

Children

Unilateral interstate relocation for medical treatment for mother who decided to stay away permanently

In Whiteside &Whiteside [2014] FCCA 818 (3 April 2014) the mother unilaterally relocated the children (aged seven, six, two and eight months) from NSW (where the parties had “co-parented” for 12 months under a parenting plan) to Queensland for urgent medical treatment for herself. After receiving the treatment she stayed in Queensland. Judge Neville made an interim order that the children live with the mother in Queensland but that the two eldest live with the father at the end of the school term. Directions were made for a family report and an expedited hearing.

Children

Absent father, indigenous mother – child raised in Brisbane as Torres Strait Islander

In Waugh & Bannon [2014] FCCA 893 (6 May 2014) Judge Baumann dismissed a father’s application for time with his 8-year-old daughter X where X had “spent no time with [him]” prior to the proceedings and “really does not know of his existence or identity”. The mother is “an indigenous woman who identifies herself as Torres Strait Islander”. The parties had a brief relationship in 2004, the father initially disputing that he was X’s father. He applied for parenting orders in 2011 after the Child Support Agency reduced his Centrelink benefits when DNA testing proved him to be the biological father. Under interim orders some supervised time had occurred. Judge Baumann at [41] accepted a forensic psychologist’s evidence that the mother’s family “adopts the practices of the Torres Strait Island culture, even though the child [lives] in suburban Brisbane . . . a collective family culture in which other family and kin have a significant say in how the child will be raised and by whom”. The Court also accepted at [45] the opinion of the family consultant that from her observations the father “has not yet grasped the significance to X of her extended family and Torres Strait Islander lifestyle”, saying that “if an order is made that is not ‘accepted emotionally’ by the mother and her family it could undermine the ‘collective family structure’ that supports and has nurtured X and which is her reality”.

Property

High Court holds that husband should be held to his promises to transfer a property to his lover

In Sidhu v Van Dyke [2014] HCA 19 (16 May 2014) the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) considered promises by the appellant husband to transfer to the wife’s sister-in-law (with whom he had had a sexual relationship) a cottage on a rural property, the homestead on which the husband lived with his wife. Relying on his promises, the respondent lover was prevailed on by him not to pursue her own husband for a property settlement and she carried out work on the cottage and adjoining property. In the Equity Division of the Supreme Court of NSW the respondent won an appeal from the first instance decision to the NSW Court of Appeal which held the appellant estopped in equity from resiling from his promises on which the respondent had relied to her detriment, ordering him to pay her a sum equal to the value of the property promised. Upon the appellant’s appeal to the High Court, French CJ, Kiefel, Bell and Keane JJ discussed equitable estoppel and the evidence at [58]–[78], concluding at [86]:

“. . . no reason has been identified by the appellant to conclude that good conscience does not require that [he] be held to his promises. In particular, it is no answer for [him] to say that the performance of his promises was conditional on the completion of the subdivision and the consent of his wife to the transfer to the respondent. His assurances to [her] were expressed categorically so as to leave no room for doubt that he would ensure that the subdivision would proceed and that the consent of [his] wife would be forthcoming”.

Property

Personal insolvency agreement frustrated an interim costs order – controlling trustees ordered to release control of property

In Beaman and Bond [2014] FCWA 21 (4 April 2014) the respondent was ordered to pay $100,000 for forensic investigation fees and future legal costs of the applicant after which he signed an authority under s188 of the Bankruptcy Act 1966 (Cth) (BA) for controlling trustees (second respondents) to take control of his property under a personal insolvency agreement (PIA). The de facto wife applied under s208 of the BA for the release of the respondent’s property from the controlling trustees on the ground that the PIA was an abuse of Part X of the BA and would frustrate the Family Court proceedings. Holding that “special circumstances” under s208 existed to justify an order releasing the respondent’s property from the trustees’ control, Crisford J said at [130]:

“The considerable investment in the Family Court proceedings in terms of time, effort and investigation will effectively be frustrated if the PIA is executed and given effect. I find that the removal of [the respondent’s] property from the control of the trustees is unlikely to cause unfair prejudice to either the parties . . . or . . . creditors. The issues will still be resolved, but in one set of proceedings”.

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) unless otherwise specified. 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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