• •NOTICEBOARD

Family LawCase Notes2010Robert Giade-Wright Author and Editor The Family Law Book

PROPERTY• Contributions during long

separationIn Polonius & York [2010] FamCAFC 228 a couple with two children were together for 22 years, then separated underthe one roof for 10 years whereupon the wife moved out. At separation their assets were exceeded by the husband’s debt to creditors. By the time of the hearing, the wife had acquired assets valued at $870,000. The Full Court held at para 92 that in long separation cases an asset by asset approach can be appropriate.

COSTS• Costs agreement set asideIn McMurphy & G and G (A law firm) [2010] FamCA 1032 at paras 164-177 Cleary J set aside a costs agreement for not being fair arid reasonable.

PROPERTY• Asset pool granted to wifeIn Wa I ms ley (No. 5) [2010] FamCA 1034 the wife’s property proceedings were undefended. Granting the wife’s application for the entire asset pool ($445,000) except the husband’s car, Dawe J at para 81 agreed that since separation, the wife had “provided for the husband in a manner which far exceeded] his contributions during the marriage.” Dawe J noted the husband’s cessation of child support payments, child support arrears, his debt for legal fees, gambling debts and his share of tax losses on an investment property, concluding at para 100:

benefits therefore the orders which will not entitle the husband to any further share of the asset pool are just and equitable in all the circumstances.”

CHILDREN• Dispute as to choice of

schoolIn Dreyfus & Kearney [2010] FamCA1054 a dispute as to choice of school was resolved by Ryan J who required the child to be enrolled in the school chosen by the child from two schools the mother allowed him to choose from. Relevant were the mother’s payment of all school fees, the father’s failure to pay child support or school fees and the likelihood of future default.

In Whitton and Anor (No. 2) [2010] Fam CA 1119 Austin J ordered that the children attend the same school, near the home of the paternal grandmotherwho had been granted equal shared parental responsibility. Austin J held that the children’s best interests were the paramount consideration, not the mother’s freedom to enrol the children near to where she might decide to live.

PROPERTY• Property orders set asideIn Hogan [2010] FMCAfam 1255 Neville FM set aside a consent property order due to a finding that the husband had harassed the wife into consenting, also considering her “manifestly inadequate” settlement. In Simon & Michel [2010] FMCAfam1055 Burchardt FM set aside an order as the husband had failed to disclose his new employment,

with salary package of $200,000. Burchardt FM made a further splitting order in favour of the wife.

COSTS• Lawyer ordered to pay costsIn Dwyer & Brent & Anor [2010] FMCAfam 1224 Riethmuller FM ordered the mother’s former lawyer to pay costs fixed at $3,300 being the cost of a hearing which had been lengthened by a Notice of Risk of Family Violence filed by the lawyer alleging that the father “physically beat” the parties’ child, based on instructions that the father had smacked the child and that such physical discipline was not appropriate.

PROPERTY• Interest in family trust• Asset by asset approachIn Ogden [2010] FMCAfam 865 at paras 82,119-120,126-128 Bender FM held that the wife’s interest in a family trust was “property” and took an asset by asset approach, finding that the husband had made no contribution in respect of that interest.

CHILDREN• Parenting plan inadmissibleIn Roux & Herman [2010] FMCAfam 1369 Riethmuller FM held that s 10J as to communications in FDR being inadmissible did not extend to an agreement reached at the end of that process. Riethmuller FM held, however, that the father’s allegation that he was exhausted after four hours of FDR and had been coerced into signing was prima facie evidence of disqualifying factors under s 63C(1A), which could not

l“The husband has already received significant financial

46 www.lawsocietynt.asn.au

be tested as to the surrounding circumstances of the agreement given the operation of s 10J.

LAWYERS• Conflict of interestIn two recent cases lawyers were held to be in a conflict of interest and were ordered to cease to act - in Karapataki [2011] FMCAfam 6 (Waiters FM) and Seidler [2010] FMCAfam 1394 (Willis FM).

PROPERTY• Husband allowed to stay in

homeIn Oswald & Malkin [2010] FMCAfam 1337 Scarlett FM resolved a dispute between parties each of whom sought a transfer of the home to themselves (the wife claiming that its single level would suit her neck and back problems and relieve her “depression”, the husband wishing to continue living there) by allowing the husband to remain there arid ordering the wife to transfer her interest in it to him. Scarlett FM at paras 73 and 86 concluded:

“What the wife has not done is to provide any medical or psychological evidence in support of her claim that returning to live in the property, admittedly in the absence of her husband, would assist her to deal with these [health] issues. (...) It is clear... that the husband has the ability to raise funds to pay the wife, as the property is unencumbered. Why, one asks rhetorically, should he have to move? (...) lam not persuaded that an order should be made requiring the sale of the property because neither party can agree who should live there. I do not see that to be just and equitable.”

CHILDREN• Abandoned children

refusing to see fatherIn Abood & Khouri [2010] FMCAfam

900 three young children had not spent any time with their father for four years and were currently refusing to spend any time with him, including supervised time. The husband (who had not paid child support in that period) claimed that the wife (who alleged serious violence on his part and that the children were at risk if they were to see him) had alienated the children from him. Finding that such a risk did not exist, Bender FM concluded:

“I intend to make orders that make provision for the parties and the children to engage in intensive therapeutic intervention, after which the children are to commence spending time with their father on a supervised basis once the therapeutic counsellor deems the children are ready for that step.”

“DE FACTO RELATIONSHIP”• Parties merely dating• Summary dismissalIn Ricci & Jones [2010] FMCAfam 1425 the motherapplied successfully for the summary dismissal of the father’s property application. The parties never lived together but did have a child. They dated for several months until the father ended their relationship when the mother became pregnant. Riley FM examined whether it could be said that the child was a “child of [a] de facto relationship” within the meaning of s 90SB(b) of the Family Law Act; s 4AA of the Act which defines a “de facto relationship”; and the authorities, in particular Moby & Schulter[2010] FamCA 748 (Mushin J), concluding:

“Taking all ofthe matters into account that are stipulated by s 4AA ofthe Act, it seems to me that there is no prospect at all that the relationship between the applicant and the respondent could be

regarded as a de facto relationship.”

CHILDREN• Child’s surname• Immunisationin Redden & Mains [2010] FMCAfam 1338 Dunkley FM reviewed the evidence and authorities at paras 73-82 in relation to change of a child’s surname, ruling against the hyphenation of the child’s name sought by the father and at paras 83-122 reviewed the evidence, including differing medical evidence adduced by the parties, as to the implications for the child of being immunised, concluding that an order for immunisation should be made.

CHILDREN• Type and frequency of drug

testingIn Lendrum & CarrieI [2010] FMCAfam 1322 Sexton FM at paras 32-43 reviewed the evidence of the mother’s history of drug abuse; medical opinion as to her prognosis including the likelihood of a relapse; and evidence from a forensic toxicologist as to the function and cost of and the procedure for hair follicle testing. Sexton FM found on the evidence that a relapse was highly likely and so made an order for the supervision ofthe mother’s time with the child. An order was also made that the mother submit to a timetable of urinalysis and hair follicle testing.

CHILDREN• Grandparents undermining

child’s maternal attachmentIn Faulk & Anor & Deitz [2010] FMCAfam 1285 Bender FM reduced the time a child spent with the paternal grandparents because of their actions in undermining the child’s relationship with the mother “in their belief that she does not properly care for their grandchild”. •

THEFAMILYLAWBOOKBalance 1/2011 47