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Family law judgments

Family law judgments

By Robert Glade-Wright and Craig Nicol

Family Court Judgment 


Property Wife’s SMS held admissible against her case that $145,000 advance from father-in-law was husband’s debt In Phe & Leng [2019] FamCAFC 17 (8 February 2019) the Full Court (Alstergren CJ, Strickland & Watts JJ) dismissed the wife’s appeal against a property order where Le Poer Trench J found that the husband’s father was owed $145,000. The wife alleged that that sum was the husband’s debt alone, having been deposited into an account the husband controlled. It was found that it was the parties’ debt as the wife in a text message to the husband’s sister said that she would “return” the money to the husband’s parents if her child “M can come back to Sydney”. On appeal, the wife argued that her text message was inadmissible, being a settlement negotiation within the meaning of s131 of the Evidence Act 1995 (Cth). The Full Court disagreed: “His Honour put to the wife that the message represented an acknowledgment by her that the loan (in Taiwanese dollars) existed . . . [T]he wife said the message was . . . an attempt to . . . get the husband and his family to return the parties’ eldest child to Australia … (at [28]). “. . . [T]he wife contended . . . that his Honour should not have allowed the message to have been adduced . . . because it was a communication made in connection with an attempt to negotiate the settlement of a dispute . . . (at [30]). “The broader view . . . is that [the exception in] s131(2)(g) . . . applies where the existence or the contents of otherwise privileged communication contradicts or qualifies existing evidence or an inference from that evidence and the court is otherwise likely to be misled unless the communication is adduced . . . (at [36]). “. . . [W]e conclude it was likely that the primary judge would have been misled into accepting the wife’s evidence had the message been excluded (at [49]). “Thus s131(1) of the Evidence Act does not apply to exclude the message because s131(2)(g) was enlivened and the wife was not entitled to claim privilege” (at [50]). Children Interim coercive order for mother to return and stay in a place where she had not been living was in error In Mareet & Colbrooke [2019] FamCAFC 15 (7 February 2019) the mother left the father after a four month relationship. She was pregnant with the parties’ child when moving from the Northern Territory (where the father worked) to Queensland via “Town F” in NSW where her family lived. She alleged stalking and harassment by the father. The child was born in Queensland. The mother signed a lease and moved her possessions there, also enrolling her 4-year-old child from a former relationship in kindergarten. A judge of the Federal Circuit Court on the father’s application ordered the mother to return with the child to the “H Region” in NSW to spend time with the father at a contact centre. The mother appealed. Ainslie-Wallace J (with whom Ryan and Aldridge JJ agreed) allowed the mother’s appeal, saying at [14]-[18]: “While it is undisputed that the Family Law Act . . . provides the power to enjoin a party to relocate (or not relocate), such an injunction should rarely be made . . . [S]uch an injunction can be avoided if the court gives adequate consideration to alternate forms of access . . . “Her Honour regarded the issue . . . as a ‘relocation case’ . . . Clearly however, the child’s residence was never in the H Region in [NSW] . . . Her Honour’s characterisation . . . led her to make significant errors of law. “In particular, her Honour gave no consideration to making orders that the father travel to the D Region in Queensland to see the child. Nor did she turn her mind to the interests of the mother’s older child who had been enrolled at pre-school [there] . . . Instead, her Honour took the view that the mother should be compelled to return. “This order . . . one directly affect[ing] the mother’s right of freedom of movement, in the circumstances of this case was wrong at law. Secondly, her Honour’s . . . order which bound the mother to the H Region of [NSW] from which she could not leave is patently erroneous. “[H]er Honour’s order . . . [also] took no account of the financial and other burden on the mother consequent on the move . . .” Financial agreements Section 90B agreement was no bar to a spousal maintenance application by wife as it did not comply with s90E In Barre & Barre & Anor [2018] FCCA 97 (19 January 2018) the wife applied (inter alia) for interim periodic spousal maintenance in proceedings filed by her under s90K(1)(d) of the Family Law Act (material change in circumstances relating to a child) for the setting aside of a financial agreement made by the parties in 2005 under s90B before their marriage. Subsequent to their agreement the parties had two children, aged 11 and 5 at the time of the hearing. The husband opposed the application. Judge Kemp said at [37]-[39]: “. . . [T]he Court does not accept that the . . . agreement excludes either party’s right to make an application for spousal maintenance. “The husband says that, while the actual words ‘spousal maintenance’ are not referred to as excluded, inferentially they were, as they were not specifically included within the terms of the . . . agreement as being an excluded item . . . “The husband, further, says that such an outcome, being no ability to apply for spousal maintenance, would be consistent with the fact that the . . . agreement was entered into . . . where both parties were in employment, apparently able to adequately support themselves . . . and intended to continue to do so in the future. The Court does not accept that submission. While the . . . agreement contemplated the parties having children, it was silent as to the impact of having children on each of their earning capacities.” Judge Kemp continued: “. . . [I]n Boyd [2012] FMCAfam 439 Brown FM . . . considered . . . s90E and stated: ‘Essentially, the legislature requires that any . . . financial agreement specify which portions of any lump sum or property order conferred thereunder are for either spousal or child maintenance, so that the social security implications of such an order or agreement is apparent’ (at [44]). “The wife referred to that decision and submitted that as the . . . agreement did not comply with s90E . . . that was ‘the end of the matter’ and the wife’s spousal maintenance rights were, clearly, preserved” (at [45]). Judge Kemp agreed. Property De facto partners reconciled six years after separation, then married but separated again In Borg & Bosco [2019] FCCA 66 (18 January 2019) Judge Burchardt heard a property case for parties who were de facto partners from 1999 to 2005. In 2007 they made and implemented a financial agreement to divide their assets. They reconciled in 2011, married in 2013 and in 2017 separated. Their children (aged 18 and 15) lived with the wife. The father spent no time with them. Each party made initial contributions (the husband “Property A” worth $80,000 and the wife two properties, sold during cohabitation for $87,500). Under the agreement the husband retained Property A and paid the wife $61,500. The wife applied her settlement towards real estate but sold it and lost all but $6000 on a business venture. The husband worked as a tradesman on $50,000 per annum while the wife earned $400 per week and provided full-time care for the children since 2000. The non-superannuation pool at trial was $524,400 – primarily the husband’s Property A worth $680,000, subject to a mortgage, and his super to which he had not contributed since 2008. Citing Kowalski [1992] FamCA 54, the Court said: “. . . The Full Court held as the headnote indicates: ‘Once a marriage has been celebrated between the parties the entire relationship between them, whether arising out of contributions before, during or after . . . marriage is entered into or dissolved, falls within the ambit of Part VIII of the Family Law Act . . .’ (at [58]). “. . . [T]he weight to be given to discrete periods of the relationship and . . . to any period of separation must necessarily . . . involve the length of the two periods of cohabitation and the length of the separation . . . (at [61]). “ . . . [T]he financial agreement . . . represented an equal distribution of the parties’ then assets . . . (at [66]). “Counsel for the husband conceded that bearing in mind the primary responsibilities for the two children . . . an equal division . . . was probably somewhat light . . . It is not . . . however . . . appropriate to give a retrospective readjustment in percentage terms . . . (at [67]). “[From 2005] the parties were wholly separate in their dealings until 2011. They re-partnered for another five . . . years . . . (at [68]). “During the second . . . relationship . . . both parties did their best. The husband has worked throughout and … he brought into the second . . . relationship a substantially increased equity in the property . . . [from] his own payments between 2005 and 2011 (at [71]). “. . . Between 2011 and 2017 the wife was seeing [the parties’] children into and . . . through adolescence as the primary home carer . . .” (at [72]). Contributions were assessed as 70:30 for the husband, adjusted by 10 per cent for the wife under s75(2) due to her impaired earning capacity, her carpal tunnel syndrome and her care of the children. The husband’s super was split 25 per cent for the wife, it having accrued between 1989 and 2008, a year after the agreement (at [78]). n 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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