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Family Law judgments

Family Law judgments

By Robert Glade-Wright and Craig Nicol

Courts Family Court 


Property Wife’s application filed electronically after 4.30pm accepted (despite FLR 24.05(2)) as filed before husband’s death hours later In Whooten & Frost (Deceased) [2017] FamCA 975 (29 November 2017) the wife filed a property application when she learned that the husband (from whom she had been separated for two years) had been placed on life support after a farming accident. Her application – for an order that she be excused from particularising her final orders until the husband had made full and frank disclosure – was electronically filed at 7.40pm. The husband died at 11pm. His estate relied on FLR 24.05(2) (an electronic filing “after 4.30pm according to legal time in the [ACT] is taken to have been received . . . on the next day when the . . . registry is open”) to argue that the wife could not apply after the husband’s death (at [22]) and that her application needed amendment to claim some relief if it was to invoke jurisdiction (at [44]). Cronin J disagreed at [45]: “. . . The jurisdiction . . . is enlivened by a party filing an application seeking a matrimonial cause. Did the wife’s application seek that the court exercise its jurisdiction in relation to ‘proceedings between the parties to a marriage with respect to the[ir] property . . .’? Clumsily though the words may have been expressed, I accept that the wife invoked the jurisdiction seeking orders with respect to property . . .” The wife sought an order under FLR 1.14 to extend time under the rules and the estate a decision that the rule “should not be applied because the rules cannot create a substantive right” (at [47]). Cronin J at [49]-[51], however, cited the judgment of McHugh J in Gallo v Dawson [1990] HCA 30 who said that rules of court “cannot become instruments of injustice”. Applying FLR 1.14 and 1.09 (“if a doubt exists in relation to . . . practice a court may make such order as it considers necessary”) it was held that the wife’s application should be treated as having been filed when it was filed electronically. Property When heads of agreement at a mediation involving a third party take effect is a question of fact In Thatcher & Thatcher & Ors [2017] FCCA 3008 (6 December 2017) heads of agreement at a mediation between the husband, wife and their two sons related to the property case between husband and wife and a case by the sons against their parents in the Supreme Court of Victoria where they claimed an interest in a farming company. The sons agreed to pay the husband $800,000 and interest of 3.5 per cent pa, the husband agreeing to transfer properties to the wife. After orders were made the husband refused to settle, arguing that he was entitled to interest since the mediation. Riethmuller J said: “. . . As the High Court . . . [said] in Masters v Cameron [1954] HCA 72 . . . [as to] heads of agreement . . .: a) The parties may intend to be bound immediately, although desiring to draw up their agreement in a more formal document at a later stage; or b) They intend to be bound immediately, but do not intend to have . . . [it] take effect until . . . a more formal agreement; or c) They may intend to postpone . . . contractual relations until a formal contract is . . . executed ( . . . Cheshire & Fifoot Law of Contract . . . 10th ed, 2012, 5.24) (at [8]). “. . . The fact that . . . [an] agreement is informal . . . does not preclude it from being immediately binding . . . Ultimately . . . it is a matter for the Court to determine the parties’ intention . . . objective[ly] . . . having regard to the language used and their conduct . . . (at [9]). “ . . . [T]he heads of agreement could [not] be considered a binding financial agreement . . . (at [15]). “The land . . . was held in part by the wife, yet the payment was entirely to the husband. Without finalisation of the . . . [case] the wife was potentially required to transfer her interest . . . for the husband to receive $800,000 . . . without any certainty that the[ir] agreement . . . would become binding (at [17]). “In these circumstances, I am not persuaded that the heads of agreement were . . . binding . . . until . . . the . . . orders were made . . . (at [18]). “. . . I am satisfied that the sons were ready, willing, and able to settle . . . and that . . . settlement did not proceed . . . because the husband sought . . . interest . . . prior to . . . the . . . orders . . . [thus] it is not appropriate that he be permitted to insist on interest . . . (at [29]).” Property Parties not in a de facto relationship despite their lengthy sexual relationship and two children – Elias principle In Weldon & Levitt [2017] FCCA 3072 (11 December 2017 Riley J dismissed Mr Weldon’s property application, granting Ms Levitt a declaration that the parties did not have a de facto relationship and accepting her evidence that they were “boyfriend and girlfriend” (at [3]) and that while they did have two children together they lived in the same house for less than one of the 16 years they had known each other. The Court said: “The respondent was unemployed and in receipt of . . . [benefits] from 2001 until the present . . . She did not . . . tell Centrelink that she was in a de facto relationship. . . (at [33]). “The applicant acknowledged . . . that the respondent alone bought Property B, Property C and Property A . . . (at [68]). “The applicant exhibited . . . an application for an intervention order . . . by a police officer . . . [in] 2014 on behalf of [the] respondent . . . [which] said that . . . the . . . [parties] were in a de facto relationship for about 12 . . . years . . . (at [73]). “In . . . Elias . . . (1977) FLC 90-267 Goldstein J held that the parties were bound by their statements to governmental authorities . . . (at [115]). “More recently, however, the Elias principle has fallen into disfavour . . . (at [116]). “In Sinclair & Whittaker [[2013] FamCAFC 129 at [65]] the primary judge found that a de facto relationship existed, notwithstanding the applicant’s statements to governmental authorities and lenders that she was single. That finding was not disturbed on appeal. . . (at [117]). “The respondent’s child support application was . . . based on her claim that the . . . [parties] were not in a de facto relationship. . . (at [120]). “. . . [T]he respondent’s statement in an intervention order application . . . that the applicant was her former intimate partner tends to go the other way . . . it supports the proposition that the applicant was merely her boyfriend (at [126]). “The net effect . . . is that the court is required to look at all of the evidence, including statements to governmental authorities . . . and assess whether, in all the circumstances, the parties were a couple living together on a genuine domestic basis . . . (at [127]).” Children Parenting order made in father’s absence (denying him time with his children) set aside under FCCR 16.05 In Edmonds & Whyte & Anor [2017] FCCA 2733 (13 November 2017) Burchardt J granted the father’s application under FCCR 16.05 for an order setting aside a final parenting order made in his absence which prohibited his spending time with his children aged 8 and 6. The Court at [9] cited Barbey & Tuttle [2013] FamCAFC 44 in which the Full Court said at [90]: “The discretion to set aside orders made in default of a party’s appearance is unfettered. Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed).” The father (Mr Edmonds), who was imprisoned in 2011 and 2013 for 12 and three months, relocated to WA in early 2014 “for work and to make a new start” (at [16]), deposing that he returned to Victoria in late 2015 “to re-establish a relationship with Y and X” (at [18]). He saw a children’s contact service in 2016 (at [21]) and kept seven of 14 visits scheduled by the family report writer (two of the seven cancellations were by the grandmother (at [33]). The Court did “not know with certainty whether Mr Edmonds was informed” of the [trial date] (at [46]) but did not think his delay in applying four weeks later was “adequately explained” (at [50]-[51]). The Court, however, said (from [53]-[56]): “ . . . The fact is that the father has sought to reintroduce himself to the children’s lives. He has, to an extent, succeeded in doing so. While not devoid of criticism . . . the father’s time at the contact centre proceeded . . . reasonably well and . . . the children enjoyed it. Whether the father has any credible chance of achieving the orders he nominally seeks ( . . . that the children ultimately live with him) is very debatable . . . “Nonetheless, the Court cannot ignore the practical outcome . . . were the application . . . to be dismissed . . . to remove the children’s relationship with their father forever . . . “There is . . . prejudice to the other parties . . . [if] the application is reinstated. While . . . [the mother and grandmother] are self represented and there is no . . . cost impost, the stress of re-litigating . . . will . . . be a relevant consideration. . . . “ . . . The father’s non-appearance on the original trial date is consistent with his at times feckless behaviour with the . . . contact centre . . . Notwithstanding the matters militating against reinstatement, in my view the proper exercise of the discretion in the . . . circumstances of this case . . . leads to the conclusion that the application should succeed . . .” 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 accredited family law specialist Craig Nicol. References to sections of an Act in the text are 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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