Convicted Paedophile Father’s Appeal Against a No Communication Order

Keywords: Family Law Act, s 60CE; paedophile father; no communication order; psychological harm  Introduction InMalak & Mairie (No. 2)[2016] FamCAFC 120 (6 July 2016) the Full Court (Murphy, Kent & Austin JJ) heard an appeal by the father who was serving an 18 year prison sentence for sexual offences. The Full Court had the difficult … Continue reading Convicted Paedophile Father’s Appeal Against a No Communication Order

Same-Sex De Facto Partners Held to be “Parents” of Artificial Insemination Child

Keywords: Family Law; parenting; artificial insemination; Family Laaw Act, section 60. Introduction The Family Law Act identifies children born as a result of artificial conception procedures under section 60H. The child’s parents are recognised by the following two elements: the woman was married to, or a de facto partner of, another person, that being the … Continue reading Same-Sex De Facto Partners Held to be “Parents” of Artificial Insemination Child

Husband’s Appeal Against Order To Pay $12m from Family Business to Ex-Wife Upheld

Keywords: Family Law Act, s79(2), 79(4); contributions; assessment of business assets; distribution of matrimonial property; appeal against original property orders. Introduction The case of Turner and Anor [2016] FamCAFC 121 (8 July 2016) (May, Ainslie-Wallace & Cronin JJ) heard the husband’s appeal against an order made by Macmillan J that the wife be paid a … Continue reading Husband’s Appeal Against Order To Pay $12m from Family Business to Ex-Wife Upheld

Court Finds That Costs Order Against Mother In Contravention of Orders not in Child’s Best Interests

Keywords: Family Law Act, sections 60CC(3)(f).  70NFB, 70NFE, section 117; contravention; parenting orders; withholding child. Introduction The case of Roffe & Huie [2016] FamFAFC 166 (19 August 2016), was heard in front of her Honour Judge May (“the appellate judge”).  This was an appeal brought by Mr Roffe (“the father”) against the decision of the trial … Continue reading Court Finds That Costs Order Against Mother In Contravention of Orders not in Child’s Best Interests

Court Rules That It Was Not Just and Equitable to Sell Matrimonial Home after Husband’s Death

Keywords: Family Law Act, section 79(2) and 79(8)(b); property distribution; property distribution following death; just and equitable property distribution.   Introduction  The recent case of Paxton & Paxton [2016] FCCA 1689 (7 July 2016) heard by Judge Wilson, gave insight as to when the  Court will refuse to make an family law property order on … Continue reading Court Rules That It Was Not Just and Equitable to Sell Matrimonial Home after Husband’s Death

Family Court Rules with Mum as Primary Caregiver And Allowed Her to Relocate to Perth

 Introduction  In the case of  Warner [2016] FCCA 1887 (29 January 2016), the Court considered an interim application for relocation which was filed by the mother who was planning on moving from Sydney to Perth with her new partner, “with or without” her school age children.  The children had been primarily cared for by their mother since … Continue reading Family Court Rules with Mum as Primary Caregiver And Allowed Her to Relocate to Perth

Family Court Rules Exposure to Indigenous Culture Not Necessarily in Child’s Best Interests

Introduction  In the matter of Lokare v Baum (2016) FamCAFC 135 the Full Court of the Family Court of Australia considered the father’s appeal that argued that the court had failed to properly apply section 61F of the Family Law Act 1975 (the “Act”) which legislates that “the court must have regard to any kinship obligations, … Continue reading Family Court Rules Exposure to Indigenous Culture Not Necessarily in Child’s Best Interests

Relocation Case Clarifies Meaning of Parents’ Involvement in a Child’s “Daily Routine”

Keywords: Family Law; Relocation; “Substantial and Significant Time”; “Daily Routine”; s 65AA(3)(b)(i) of Family Law Act 1975   Introduction The case of Ulster & Viney [2016] FamCAFC 133 (28 July 2016) heard in the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) considered what is meant by “substantial and significant time” and specifically the element of … Continue reading Relocation Case Clarifies Meaning of Parents’ Involvement in a Child’s “Daily Routine”

Family Court Rules on Security of Costs in Family Extradition Proceedings

Keywords: Family law, Family Law Act 1975, section 65Y, section 121, section 68B, child taken overseas, publication, restriction on publication, injunction, sequestration order, costs, appeal.   Introduction The case of Sullivan & Tyler and Anor (No. 2) [2016] FamCAFC 131 (20 July 2016) (‘Sullivan & Tyler’) was an appeal held in the Full Court of the Family … Continue reading Family Court Rules on Security of Costs in Family Extradition Proceedings

Court Intervention Held Necessary For General Dyshoria-Related Medical Procedure

Keywords: Family Law – Medical Procedures – Childhood gender dysphoria – Where the child is 15 years of age – Consideration of whether the child is Gillick competent.   In Re: Quinn [2016] FamCA 617 (29 July 2016) the mother and father (“the Applicants”) were the parents of “Quinn”, who was born in 2001.  Quinn, … Continue reading Court Intervention Held Necessary For General Dyshoria-Related Medical Procedure

Full Court of Family Court Finds No Child Support Resulting Trust Favouring the Husband

Keywords:  child support; private agreement; school fees; repaid; trust; resulting trust; beneficial interest; administrative assessment; child support trust. Relative Law: Family Law Act 1975 (Cth); Child Support (Assessment) Act 1989 (Cth)   Introduction The case of Bass & Bass and Anor [2016] FamCAFC 64 (29 April 2016) was heard in the Full Court of the … Continue reading Full Court of Family Court Finds No Child Support Resulting Trust Favouring the Husband

Family Court Gives Common Sense Meaning to Ambiguous Term in Binding Financial Agreement

Keywords: Binding Financial Agreement – Ambiguous recital (purporting to define when the parties would be deemed to have separated) construed as referring to their actual separation date; determination by way of construction; section 90DA Family Law Act The case of Cuo & Ming and Ors [2016] FamCA 495 (12 May 2016) concerned a complex property … Continue reading Family Court Gives Common Sense Meaning to Ambiguous Term in Binding Financial Agreement

Full Court of Family Court Considers Treatment of Allegations of Family Violence

Keywords: Children – Treatment of untested allegations of family violence at interim hearing – Allegations should not be ignored because they are contested – Mother successfully appeals interim order discharging earlier order for supervision of father’s time – Trial judge also did not consider father’s consent to prior order Allegations of family violence are increasingly … Continue reading Full Court of Family Court Considers Treatment of Allegations of Family Violence

New Family Court Case on Relationship between Family Law Parenting and Intervention Orders

Children – Relationship between family violence order and parenting order– Family Court of WA determines whether text messages sent by father to mother contravened violence restraining order or were sent in “an emergency” pursuant to its contact order.   In Monaco & Daniels [2016] FCWA 35 (27 May 2016) Walters J considered whether the father Mr Monaco had … Continue reading New Family Court Case on Relationship between Family Law Parenting and Intervention Orders

Court Looks At Meaning of “Public” In Relation To Publication of Proceedings

Keywords: Publication of proceedings – Meaning of “the public” in s 121(1) of the Family Law Act – Court allows father to use family consultant’s report under s 11F in domestic violence proceedings – Child’s representations in the report differed from mother’s evidence in those proceedings In Miller & Murphy [2016] FCCA 974 (2 May 2016), Brown J heard … Continue reading Court Looks At Meaning of “Public” In Relation To Publication of Proceedings

High Court Upholds Appeal Court Ruling That Wife Not Entitled To Spousal Maintenance

Keywords: family law, spousal maintenance, interim spousal maintenance, appeal, financial resources, section 72, 72(1), section 75, section 75(2)(b), section 75(2)(o), spousal maintenance considerations, justice of the case.   The case of Hall & Hall [2016] HCA 23 (8 June 2016) was a family law hearing heard in the High Court of Australia.  The matter was … Continue reading High Court Upholds Appeal Court Ruling That Wife Not Entitled To Spousal Maintenance

Full Court Increases Wife’s Contribution During Marriage as Trial Judge Overstated Her Earning Capacity During Marriage

Keywords:  Property; contributions; contribution assessment; section 75(2) adjustment; adjustment from nil to 7.5 per cent;  In Wah & Golay [2016] FamCAFC 67 (7 April 2016) the Full Court of the Family Court heard the wife’s appeal against the trial judge’s decision concerning a $3.9 million pool and an 8 year marriage. Importantly, the husband had supported the … Continue reading Full Court Increases Wife’s Contribution During Marriage as Trial Judge Overstated Her Earning Capacity During Marriage

Mother’s Relocation from North Queensland to Brisbane Considered in Disabled Child’s Best Interests

Keywords: family law, parenting, child, relocation, special needs, autism, severely disabled, opposition, parenting capacity, best interest of the child, best interest of the children, s 60B, s 60CA, s 60CC, s 61DA Family Law Act. The case of Wright & Watson [2016] FCAA 127 (11 March 2016) was a family law hearing in the Federal … Continue reading Mother’s Relocation from North Queensland to Brisbane Considered in Disabled Child’s Best Interests

Family Court Finds No Error in Treating Husband’s Lottery Winnings as Soul Contribution of the Husband

Keywords:  Property settlement; section 79 of the Family Law Act;  lottery winnings; contributions; Introduction In the matter of Elford [2016] FamCAFC45 (29 March 2016) the Full Court of the Family Court consisting of Bryant CJ, Murphy CJ, Murphy & Cronin JJ, heard the wife’s appeal against a property order made by Judge Roberts that the … Continue reading Family Court Finds No Error in Treating Husband’s Lottery Winnings as Soul Contribution of the Husband

Mother Granted Recovery Order for Children after Father Unilaterally Relocated to US in Shared Parental Responsibility Matter

Introduction In the case of Bondelmonte [2016] FamCAFC 48 (8 April 2016) the Full Court consisting of Ryan, Aldridge and Le Poer Trench JJ heard a father’s appeal against orders made by Watts J in a relocation case involving two boys. The matter considered what should be regarded as the ‘primary’ and ‘additional considerations’ of the children pursuant … Continue reading Mother Granted Recovery Order for Children after Father Unilaterally Relocated to US in Shared Parental Responsibility Matter

WA Family Court Orders Curative Treatment for Child with Cancer

Keywords: children; sick; cancer; brain tumour; medical treatment; medical intervention; alternative therapies; naturopathy; parental power; parent’s wishes; parens patriae; best interests of a child; Marion’s case; good prospect of long term cure; palliative care; airport watch list.   The highly publicised case of Director Clinical Services, Child & Adolescent Health Services and Kisko & Anor … Continue reading WA Family Court Orders Curative Treatment for Child with Cancer

Court Grants Leave to Unsecured Creditor of Bankrupt Estate to Defend Property Adjustment Claim by Wife

In Vincent & Anor [2016] FCCA 227 (12 February 2016) Judge Riethmuller dealt with a situation where after an 11 year marriage the wife applied for a property order after the husband was made bankrupt. The wife sought to pursue her claim against the bankrupt estate. The bankrupt estate consisted of $659,704, including superannuation with unsecured creditors of … Continue reading Court Grants Leave to Unsecured Creditor of Bankrupt Estate to Defend Property Adjustment Claim by Wife

New Zealand Found by Australian Family Court to be “Appropriate Forum” to Determine Trans-Tasman Family Law Property Dispute

In the recent decision of the Full Court of the Family Court in Nevill [2016] FamCAFC 41 (17 March 2016) May, Ryan & Murphy JJ upheld an order made by Kent J staying the wife’s property proceedings, initially brought in the Federal Circuit Court in Australia. Kent J imposed the stay due to holding, on the facts, … Continue reading New Zealand Found by Australian Family Court to be “Appropriate Forum” to Determine Trans-Tasman Family Law Property Dispute

Court Adjusts Contributions in a Long-Term De Facto Relationship where Financial Agreement Ineffective

Keywords: property; settlement; de facto; section 75(2); section 79; initial contribution; financial contribution; other factors. The case of Marks & Xander [2016] FCCA 282 (15 February 2016), was a property settlement matter between separated de facto parties which was heard by the Federal Circuit Court of Australia. Background The parties met about March 2000 and … Continue reading Court Adjusts Contributions in a Long-Term De Facto Relationship where Financial Agreement Ineffective

Court Rules $90,000 Withdrawal Not be a “Add Back” as Wife Naive Rather than Reckless

In the recent case of Martin & Wilson [2016] FCCA 235 (11 February 2016), Judge Phipps dealt with an 11 year de facto relationship where the respondent (Ms Wilson) withdrew $90,000 of superannuation at the commencement of the litigation but lost it as part of a failed business venture. The remaining asset pool included a block of land ($80,000) … Continue reading Court Rules $90,000 Withdrawal Not be a “Add Back” as Wife Naive Rather than Reckless

Court Determines Health Issues Only a Factor in Property Proceedings when Life Expectancy Determinable

Keywords: property; future needs; spousal maintenance; section 75(2); illness; life expectancy; renal failure; diabetes. The case of Fontana & Fontana [2016] FamCAFC 11 (9 February 2016), was an appeal to the Full Court of the Family Court of Australia by the husband from an earlier hearing of the Family Court of Australia. In the earlier … Continue reading Court Determines Health Issues Only a Factor in Property Proceedings when Life Expectancy Determinable

Adjustment in Favour of Wife in Property Proceedings Notwithstanding the Husband’s Significant Financial Contributions

Key Words:  property proceedings; contributions; section 75(2) of the Family Law Act; In the recent Family Court of Western Australia case of Telfer [2016] FCWA 2 (4 January 2016), Walters J had to consider a seven year marriage where there was two children (aged 6 and 8) and $4.25 million in assets. The wife had made an … Continue reading Adjustment in Favour of Wife in Property Proceedings Notwithstanding the Husband’s Significant Financial Contributions

Mother Allowed To Relocate After Considering 11 Year Old Daughter’s Best Interests

Keywords: Best interests of the child; relocation In Timms & Payton [2015] FCCA 3324 (18 December 2015) Judge Altobelli heard the applicant mother’s request to relocate with the parties’ 11 year old daughter (“X”) from one location in New South Wales to another location in New South Wales “in excess of two hours drive south of where the … Continue reading Mother Allowed To Relocate After Considering 11 Year Old Daughter’s Best Interests

Failure to Provide Full Disclosure Confirmed as a Ground for Setting Aside Property Consent Orders

Keywords: Consent orders; full and frank disclosure; informed consent; miscarriage of justice; section 79A; property orders; disclosure. The case of Pearce & Pearce [2016] FamCAFC 14 (11 February 2016) was an appeal brought by the husband against the orders of Justice Dawe (“trial judge”) of the Family Court of Australia made 12 December 2014.  The … Continue reading Failure to Provide Full Disclosure Confirmed as a Ground for Setting Aside Property Consent Orders

Family Court Upholds an Appeal That Children Were Habitually Resident in Finland and Should Be Returned

The case of Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233 (11 December 2015) was an appeal brought by the Commonwealth Central Authority against the orders of Deputy Chief Justice Faulks (“trial judge”) of the Family Court of Australia. The trial judge had to determine whether children should be returned to Finland under international child … Continue reading Family Court Upholds an Appeal That Children Were Habitually Resident in Finland and Should Be Returned

Full Court of Family Court Confirms There Can Be Two Types of Financial Agreement in One Document

Key Words: Financial agreements; de facto partners; Part VIIIA and Part VIIIAB financial agreement;  validity of certificate of legal advice Introduction In Piper & Mueller [2015] FamCAFC 241 (18 December 2015) the Full Court of the Family Court (Ryan, Murphy & Aldridge JJ) heard an appeal against Judge Willis’ decision in Piper & Mueller [2014] FCCA 2659. This appeal addressed the issue of … Continue reading Full Court of Family Court Confirms There Can Be Two Types of Financial Agreement in One Document

Father Wins Appeal Against Decision That His Overnight Contact Posed Risk

In Safir [2016] FamCAFC 3 (28 January 2016), Ryan J heard an appeal and found an error in a family law parenting order that gave the father unsupervised time with a 10 and 6 year old during the day, but provided no overnight time due the risk that the children may see pornography or their … Continue reading Father Wins Appeal Against Decision That His Overnight Contact Posed Risk

Family Court Allows Appeal for Property Settlement Application Out of Time

Key Words: Family law, property settlement; out of time; section 44, hardship, leave for out of time application. The case of Slocomb v Hedgewood [2015] FamCAFC 219 (12 November 2015) was a Family Court of Australia (“FCA”) Full Court hearing to determine leave to appeal a decision made by the Federal Circuit Court of Australia (“FCC”). The matter … Continue reading Family Court Allows Appeal for Property Settlement Application Out of Time

Family Court Orders Therapeutic Counselling and For the Mother to Stay in Australia

Key Words: Children;  alienation; therapeutic counselling; best interests of the children, application for visa for child In Sandford & Cobb [2016] FamCA 11 (20 January 2016), the mother applied to have a transfer of a parenting proceeding from Brisbane to Townsville, along with interim orders to quickly obtain passports for her two children aged 10 … Continue reading Family Court Orders Therapeutic Counselling and For the Mother to Stay in Australia

Financial Agreement Held Binding Despite One Party Signing Pre-Marriage and the Other Post-Marriage

KEY WORDS: Binding Financial Agreements – s 90B Family Law Act 1975 – Agreement declared binding  under s 90G(1B) as opposed to s 90G(1) In Manner [2015] FCCA 3043 (18 November 2015), Judge Jarrett heard a case where the wife sought a declaration that a financial agreement under section 90B Family Law Act 1975 (Cth) (the “Act”) was … Continue reading Financial Agreement Held Binding Despite One Party Signing Pre-Marriage and the Other Post-Marriage

Court Confirms That Income from a Loan Agreement Is Income for Child Support Assessment Purposes

KEY WORDS: Child Support; Social Security Appeals Tribunal; unreasonableness, WednesburyUnreasonableness, financial resources In Baylden & Anor [2015] FCCA 2886 (29 October 2015), the father appealed against a Social Security Appeals Tribunal (“SSAT”) decision on various grounds, one of which was that the SSAT made an erroneous finding that its decision was unreasonable and/or an offence … Continue reading Court Confirms That Income from a Loan Agreement Is Income for Child Support Assessment Purposes

Full Court Finds No Error In An Interim Injunction To Preserve Assets Pending Determination Of Jurisdiction

Keywords: Interim Injunctions;  Jurisdiction, Binding Financial Agreements; Family Law Act 1975 (Cth) Background In Teh & Muir [2015] FamCAFC 224 (2 December 2015), the Full Court heard an appeal by a 36 year old Ms Tey against an interim asset prevention order that was made by Dawe J. The appellant and her son moved to Australia in January … Continue reading Full Court Finds No Error In An Interim Injunction To Preserve Assets Pending Determination Of Jurisdiction

Family Court Confirms the Need for Clear Terms in Property Consent Orders which Particularise Parties’ Intentions

Key Words Property settlement; consent orders; interpreting consent orders; construction of consent orders; consent orders evincing an intention; interpreting a contract. The case of Dace & The Estate of the Late A Dace [2015] FamCAFC 215 (12 November 2015) was a Family Court of Australia (“FCA”) appeal heard by Judge May.  In this case the … Continue reading Family Court Confirms the Need for Clear Terms in Property Consent Orders which Particularise Parties’ Intentions

Mother’s Appeal Against the Return of Her Child to Norway Dismissed Despite her Anxiety and Depression

Key Words Children – Hague Convention – grave risk – mother’s anxiety – depression – abduction Introduction In Hilton & Department of Family and Community Services [2015] FamCAFC 223 (26 November 2015), the Full Court heard the mother’s appeal against an order that was made earlier by McClelland J to return her son to Norway … Continue reading Mother’s Appeal Against the Return of Her Child to Norway Dismissed Despite her Anxiety and Depression

Court Considers Late Lodgement of Tax Returns Bars Departure from Child Support Obligations

Key Words Child Support; Child Support (Assessment) Act 1989; administrative assessment; departure order; child support liability; failure to lodge tax returns; deemed income The case of Dalton & Munro & Anor [2015] FCCA 2945 (24 June 2015) was a Federal Circuit Court of Australia case heard by Judge Scarlett.  In this case the Applicant Father … Continue reading Court Considers Late Lodgement of Tax Returns Bars Departure from Child Support Obligations

Family Court Considers Division of Property after Transfer of Property by Husband’s Father on Trust

The recent case of Bagby [2015] FamCAFC 209 (6 November 2015) was an appeal of the husband from a property order made by a judge in the Magistrates Court of Western Australia involving a 25 year marriage. The asset pool comprised of land that was owned by the husband’s father. Property A was valued at $610,000 and was transferred … Continue reading Family Court Considers Division of Property after Transfer of Property by Husband’s Father on Trust

Inherent Power of The Court to Enforce Substantive Family Law Orders Confirmed

In Fan & Lok [2015] FamCA 816 (1 October 2015) Rees J heard an application by the deceased wife’s executor to enforce a Binding Financial Agreement (“BFA”) against the husband. The BFA provided that upon the death or separation of the wife, the husband was to sell Property F in order to discharge the loan … Continue reading Inherent Power of The Court to Enforce Substantive Family Law Orders Confirmed

Counselling Sessions Revealing Possible Child Abuse and Family Violence Deemed Admissible Evidence By Family Court11

The case of Douglas & Mauldon [2015] FCCA 2217 (17 August 2015) was a Federal Circuit Court of Australia case about parenting matters between the Applicant wife and Respondent husband.  The case involved objections to documents requested by way of subpoena.  The subpoena requested information from The Benevolent Society about counselling services that they provided … Continue reading Counselling Sessions Revealing Possible Child Abuse and Family Violence Deemed Admissible Evidence By Family Court11

familly Court Eases Injunction Against Wife Using Husband’s Business Funds

Introduction The case of Cao & Hong [2015] Fam CA 884 (22 October 2015) was heard by Forrest J regarding an application by the wife to vary injunctions that were made by Judge Coates. The parties’ assets totaled at least $200 million, their wealth were being held from numerous structures in Australia and overseas. The … Continue reading familly Court Eases Injunction Against Wife Using Husband’s Business Funds

Appeal Court Confirms Family Reports Do Not Need To Be Written By A “Family Consultant”

The case of Mullaly & Beddoe [2015] FamCA 891 (23 October 2015) was a Family Court of Australia application in a case in relation to parenting and property matters between a separated husband and wife. The wife wanted to relocate with the parties’ child to the United States of America. The husband asked the Court to issue an order … Continue reading Appeal Court Confirms Family Reports Do Not Need To Be Written By A “Family Consultant”

Family Court Appeal Highlights Difference Between Order And Undertaking In Parenting Case

In Solonose & Squires [2015] FamCAFC 190 (30 September 2015), Strickland J heard an appeal of the father against orders that were made by Judge Connolly on the application of the mother. Although most of the father’s appeal was unsuccessful, the appeal court did upheld an appeal in relation to an injunction preventing the father from leaving the parties’ … Continue reading Family Court Appeal Highlights Difference Between Order And Undertaking In Parenting Case

Family Law Property Decision Does Not Need To Express Mention It Provides For A “Just And Equitable” Distribution

The case of Hearne v Hearne [2015] FamCAFC 178 (16 September 2015) was an appeal by the husband to the Full Court of the Family Court of Australia from a decision by Judge Harman of the Federal Circuit Court of Australia. The matter involved settlement of property after a husband and wife permanently separated. The Trial Judge’s decision … Continue reading Family Law Property Decision Does Not Need To Express Mention It Provides For A “Just And Equitable” Distribution

Court Considers Application for Family Law Property Orders Out Of Time

The case of Mackrell [2015] FCCA 1996 (29 July 2015) involved the wife’s application for leave to apply for a property order that was 16 months out of time. The parties attended mediation in 2011 and subsequently entered into an informal property settlement that was to be entered into consent orders and a binding child support agreement. At … Continue reading Court Considers Application for Family Law Property Orders Out Of Time

Court Determines Validity of De Facto Cohabitation Agreement Where No Certificate of Independent Legal Advice Produced

The case of Franklin v Ennis [2015] FCCA 2099 (6 August 2015) was an application to the Federal Circuit Court of Australia for settlement of financial matters between an estranged de facto couple.  The Respondent claimed that the couple had entered into a cohabitation agreement under state legislation in 1997.  She claimed this estopped property … Continue reading Court Determines Validity of De Facto Cohabitation Agreement Where No Certificate of Independent Legal Advice Produced

Family Court Lifts Injunction Allowing Husband To Use Law Firm That Lawyer From Wife’s Firm Had Joined

In Osferatu [2015] FamCAFC 177 (15 September 2015), the husband appealed from an injunction that restrained Barkus Doolan from acting for him, where a solicitor (“Mr F”) joined that firm having previously worked for the wife’s solicitors, Watts McCray. It was common ground that Mr F did not have any direct dealings with the wife … Continue reading Family Court Lifts Injunction Allowing Husband To Use Law Firm That Lawyer From Wife’s Firm Had Joined

Mother’s Removal of Child Without Consent During Parenting Application Confirmed As Unlawful, With Child Support Implications

The case of Duckett v Robinson [2015] FCCA 2275 (11 August 2015) was an application in a case made by the father for a stay order so the father did not have to pay child support payments to the mother.  Previously, the Court had made orders that the child should be in the father’s full … Continue reading Mother’s Removal of Child Without Consent During Parenting Application Confirmed As Unlawful, With Child Support Implications

Validity of Binding Financial Agreement upheld on Appeal

In the interesting recent decision of Bilal & Omar [2015] FamCAFC 30 (27 February 2015) the Full Court allowed the husband’s appeal against a decision at first instance that a Binding Financial Agreement was invalid under section 90C of the Family Law Act on the basis that the wife (with limited English skills) had not … Continue reading Validity of Binding Financial Agreement upheld on Appeal

Proposed Changes to the Family Law Act for Binding Financial Agreements

The Family Law Branch of the Australian Attorney-General’s Office has released a consultation paper outlining proposed changes to the Family Law Act (“the Act”) dealing with binding financial agreements. A binding financial agreement, or “BFA”, allows married or de facto couples to come to an agreement on how their property is to be distributed upon … Continue reading Proposed Changes to the Family Law Act for Binding Financial Agreements

Was there a reasonable excuse for a contravention of a family law parenting order?

In the recent case of Tindall & Saldo [2015] FamCAFC 1 (9 January 2015) the Full Court of the Family Court of Australia overturned a first instance that a mother did not have a reasonable excuse for contravening a parenting order for her child. Under the Family Law Act, a contravention of a parenting order … Continue reading Was there a reasonable excuse for a contravention of a family law parenting order?

Is it always in the child’s best interest to spend time with both parents?

Section s 60CC of the Family Law Act 1974 outlines how a court determines what is in a child’s best interest.  What is in the child’s best interest is a paramount consideration of the Family Court. In determining a child’s best interests the court must have regard to the primary considerations which are: a)      The … Continue reading Is it always in the child’s best interest to spend time with both parents?

Legislative changes – Removing time limitations for child abuse victims

The Limitation of Actions Amendment (Child Abuse) Bill Vic 2014 has passed both houses of the Victorian Parliament and is now awaiting assent. The Bill will provide greater access to justice for child abuse victims, removing time limitations to civil claims for damages. Currently, time limitations are one of the major barriers faced by victims … Continue reading Legislative changes – Removing time limitations for child abuse victims

Was it an abuse of process to commence property distribution proceedings?

Stevens & Stevens [2015] FCCA 63 (15 January 2015) involved an 87 year old husband admitted by his son to an aged care facility on the Gold Coast and then removed and placed in another one in New Zealand. In 2011 the Queensland Civil and Administrative Tribunal appointed the Public Trustee of Queensland as administrator of … Continue reading Was it an abuse of process to commence property distribution proceedings?

De facto relationship failed to be proved

Under s 4AA (1) of the Family Law Act 1975 a person is in a de facto relationship with another person if: (a)    the persons are not legally married to each other; and (b)   the persons are not related by family; and (c)    having regard to all the circumstances of their relationship, they have a … Continue reading De facto relationship failed to be proved

Family Violence Screening Pilot

The Family Court of Australia and the Federal Circuit Court of Australia will be implementing a Family Screening Tool Pilot for child dispute services in order to further improve the screening process of family violence.  The pilot is a result of the Courts commitment to the early identification of any risks to the children and … Continue reading Family Violence Screening Pilot

New changes to Family Provision law in Victoria.

The changes to Part IV of the Administration and Probate Act (1958) (Vic) (the Act) which came into effect from 1 March 2015 will affect those family members who are not mentioned in a will and seek to `challenge’ the will for provision or further provision from a deceased Estate in Victoria.  Only those eligible … Continue reading New changes to Family Provision law in Victoria.

Child competency and medical procedures.

The case of Re Leo [2015] FamCA involved an application to the court by the parents of a minor, aged 16 ½ who has been diagnosed with gender dysphoria. The applicants sought that the court declare that the child is competent to authorise his own treatment for stage 2 administration of testosterone and for male … Continue reading Child competency and medical procedures.

Parenting After Separation Series – Relationships Australia

Parenting after separation can be difficult for children and their parents.  Relationships Australia will be providing a Parenting After Separation Series  in  Wonthaggi to inform parents about the impact of separation and divorce on children. What is Parenting After Separation? Parenting After Separation provides parents with key information and strategies to assist children to successfully … Continue reading Parenting After Separation Series – Relationships Australia

Changes to Family Provision Law in Victoria

The March 2015 edition of the Law Institute Journal includes a cover story on new changes to “family provision” under Part IV of the Administration and Probate Act 1958 (Vic), which took effect on 1 January 2015. Part IV of the Administration and Probate Act provides enables a person who is “eligible person”, and who … Continue reading Changes to Family Provision Law in Victoria

Property settlement – inheritance post separation.

In the case of Singerson & Joans [2014] FamCAFC 238 (10 December 2014) The Full Court (Bryant CJ, Anslie-Wallace and Crisford JJ) deliberated upon the parties 15 years of marriage.  The parties had  lived together in a de facto relationship from July 1994, had married in 1996 and they separated in February 2004. The husband’s … Continue reading Property settlement – inheritance post separation.

Order requiring mother to relocate is set aside

The case of Adamson & Adamson [2014] FamCAFC 232 (3 December 2014) was an appeal from parenting orders, and, in particular, requiring the appellant the mother to relocate the parties’ child to an area near the respondent’s residence.  The appeal was allowed. The Full Court (Ainslie-Wallace, Murphy and Kent JJ) heard the appeal of the … Continue reading Order requiring mother to relocate is set aside

Family Law Amendment (Family Violence and other Measures) Act 2011

The Family Law Amendment (Family Violence and other Measures) Act 2011 amended the Family Law Act 1975 designed to help protect children from harm and improve the family law system’s response to family violence and abuse. The reforms  came into operation on 7 June 2012 Anna Parker and Dr Adiva Sifris  have  written an informative  article for the Law Institute … Continue reading Family Law Amendment (Family Violence and other Measures) Act 2011

Property settlement – Treatment of a redundancy payment with “taxation implications”

In Diggelen & Diggelen [2014] FamCAFC (1 September 2014) the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) considered Johnston J’s decision to treat a $459,199 payment that the husband had received from his employer for “accrued annual leave, long service leave, severance payment and ETP” at [25] as having a value of $300,000. Johnson J … Continue reading Property settlement – Treatment of a redundancy payment with “taxation implications”

Victorian Royal Commission into Family Violence

The Victorian Royal Commission into Family Violence announced by the Victorian Government is underway.  The terms of reference for the Royal Commission will be wide-reaching.  To see an extract of the terms of reference please follow the link below: http://www.premier.vic.gov.au/family-violence-royal-commission-formally-established

Recent legislative developments in Family Law: Australian Citizenship Amendment (Intercountry Adoption) Bill 2014

The Australia Citizenship Amendment (Intercountry Adoption) Bill 2014 amends the Australian Citizenship Act 2007 to extend citizenship to children adopted directly from a country that is not a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. These include South Korea, Taiwan and Ethiopia. The proposed changes in … Continue reading Recent legislative developments in Family Law: Australian Citizenship Amendment (Intercountry Adoption) Bill 2014

Victorian initiatives to combat rising family violence

This month’s edition of the Victorian Law Institute Journal includes a cover story on recent initiatives to deal with what is a disturbing trend: a rise in incidents of family violence. Among the initiatives is the establishment of a Royal Commission into Family Violence (to be led by former Supreme Court Justice, Marcia Neave). The … Continue reading Victorian initiatives to combat rising family violence

Interim Order for supervision of father’s time with child set aside

In the case of Garraghan & Westerfield (No 2) FamCAFC 96 ( 6 June 2014). Ryan J, exercising appellate jurisdiction allowed the father’s appeal against an interim order for supervision of his time with his young child. The parties had never married.  They commenced cohabitation in 2006 and separated in May 2011.  The child was an … Continue reading Interim Order for supervision of father’s time with child set aside

Magistrates to receive family violence training in Victoria

An interesting article that appeared in the Sydney Morning Herald written by Jamie Lee: Chief Magistrate Peter Lauritsen said all magistrates would attend a two-day training course at the Judicial College of Victoria next year. Magistrates are often at the coalface of disputes between family violence victims and their partners. The Magistrates Court finalised 50,208 … Continue reading Magistrates to receive family violence training in Victoria

Australia not a `clearly inappropriate forum’ even though divorce order may not be recognised in India

In the case of Jasmit & Jasmit [2014] FCCA (12 June 2014) the issue revolved around whether Australia had jurisdiction to hear a divorce application.  The parties’ had been married in India. The wife had returned to India after the parties moved to Australia. The husband filed a divorce application on 9 May 2013 under … Continue reading Australia not a `clearly inappropriate forum’ even though divorce order may not be recognised in India

Long distance defacto relationship held to exist – separation by email

In the case of Cadman & Hallett [2014] (11 August 2014) the Full Court of the Family Court dismissed an appeal by Mr Cadman against a decision made by the original trial judge as to the length of a defacto relationship between himself and Mr Hallett.  Mr Cadman had argued that the relationship had ended … Continue reading Long distance defacto relationship held to exist – separation by email

Wife’s savings relevant when considering all the children’s expenses – interim order set aside

In the case of Padnall & Padnall [2014] FamCAFC 145 (14 August) Strickland J, exercising appellate jurisdiction, permitted the husband’s appeal against an order made by Simpson FM (as his Honour then was) that he be required to pay the wife (who had three children in her care) interim spousal maintenance of $1462 per week.  … Continue reading Wife’s savings relevant when considering all the children’s expenses – interim order set aside

Settlements following a relationship breakdown

The sorting out of parenting arrangements and the distribution of property following the breakdown in a relationship is inevitably a stressful time, but can also end up being a time- consuming (and costly) process. Over the past decade or so, the law has required disputes over parenting arrangements to be dealt with at mediation as … Continue reading Settlements following a relationship breakdown

New Tax ruling could add costs to divorce financial settlements

Divorce and the associated financial settlements can be a difficult time both emotionally and economically at the best of times. Now under a new Australian Taxation Office (ATO) taxation ruling the process can be even more taxing in some cases. With the issue of its tax ruling TR 2014/5 in July 2014,  the Australian Tax … Continue reading New Tax ruling could add costs to divorce financial settlements

WHY FINANCIAL AGREEMENTS UPON A RELATIONSHIP BREAKDOWN MUST BE DONE PROPERLY

When a marriage or de facto relationship breaks down irretrievably, one thing that needs to be done to enable the parties to move on with their lives is to divide up their assets. Certainly there is the possibility that a dispute between parties over the division of property can end up in court, with the … Continue reading WHY FINANCIAL AGREEMENTS UPON A RELATIONSHIP BREAKDOWN MUST BE DONE PROPERLY

Relocation to Pilbara from Perth – Mother wins appeal

In the case of Jurchenko & Foster [2014] FAMCAFC 127 (18 July 2014) The Full Court (Bryant CJ, Thackray & Duncanson JJ) upheld the appeal of a mother against Kaeser AM’s dismissal at first instance of her application to relocate. The parties had separated before the child was born in October 2011. The mother wanted … Continue reading Relocation to Pilbara from Perth – Mother wins appeal

International Child Protection Convention

The Child Protection Convention provides for international co-operation between convention countries to recognise protective measures for children. This includes recognition and enforcement of protection measures (such as court orders) made in one convention country in other convention countries. The aims of the convention is to assist countries to recognise foreign protection measures and determine the correct … Continue reading International Child Protection Convention

International Child Abduction Convention

The Child Protection Convention provides for international co-operation between convention countries to recognise protective measures for children. This includes recognition and enforcement of protection measures (such as court orders) made in one convention country in other convention countries. The aims of the convention is to assist countries to recognise foreign protection measures and determine the correct … Continue reading International Child Abduction Convention

Christmas rush time at the Family Court

It is November and thoughts turn to the Christmas countdown.  It is also an important time for practitioners and their clients to consider the cut-off filing dates for the Family Court. Under the Family Court rules Rule 5.01A   (1) This rule applies to an application for a parenting order relating in whole or part to … Continue reading Christmas rush time at the Family Court

Is shared care always in the best interest of young children? Equal time parenting arrangement for 2 young children set aside

In the case of Willis & Field [2014] FCCA 514 (20 March 2014) the court had to decide the issue of whether equal shared care between the two parents in this instance  was in the best interests of the children. The mother and father had entered into an equal parenting arrangement where the children aged … Continue reading Is shared care always in the best interest of young children? Equal time parenting arrangement for 2 young children set aside

“Big Money Cases” Court holds that financial contributions not more important than non-financial contributions in Family law cases

When a marriage or de-facto relationship ends and the parties seek to have their property divided by the Family Court, the courts looks at the respective contributions made by each party during the life of the relationship.  The court will look at the financial and non-financial contributions made by each party to the relationship to arrive at … Continue reading “Big Money Cases” Court holds that financial contributions not more important than non-financial contributions in Family law cases

Is there a de facto relationship even though parties are not living in same house? – the answer is Yes

This question was put in the case of Clark and Clark & Ors [2014].  The two parties involved had regularly spent weekends at each other’s houses and travelled overseas together.  However the parties did not have a permanent residence together. The parties had a child in 2007 together. The father described the conception of their … Continue reading Is there a de facto relationship even though parties are not living in same house? – the answer is Yes

Leave to proceed out of time Stanford argued

The full court in McCoy & Chancellor [2014] FamCAFC  62 dismissed Ms Coy’s appeal from Judge Turner’s granting of leave to Ms Chancellor under s44 (6) to apply for property orders three months out of time.   The parties had been a de-facto relationship for a number of years.. The full court said at [37] : “…the … Continue reading Leave to proceed out of time Stanford argued

Absent father has application dismissed

Judge Baumann in the case of Waugh & Bannon FCCA 893 [2014] dismissed a father’s application for time to be spent with his daughter X aged 8. X had spent no time with her father before the proceedings.  It was held that x “really does not know of his existence and identity” The mother is … Continue reading Absent father has application dismissed

Parenting order suspended for mother to relocate to Thailand for 18 months

In the case of Eades and Wrensted  [2014] FCWA 15 An application was granted to a mother to allow her to relocate from Perth to `City A’ in Thailand for 18 months with her children where her partner had secured employment.  The children are aged 10 and 4.  The application suspended the parenting order of … Continue reading Parenting order suspended for mother to relocate to Thailand for 18 months

Mother unilaterally went to Queensland for medical treatment – then stayed…

In Whiteside & Whiteside [2014] FCCA 893 (6 May 2014) A mother relocated to Queensland with her children aged seven, six, two and eight months from NSW to Queensland for urgent medical treatment for herself.  The parents had `co-parented’ for 12 months before her relocation.  After her treatment the mother decided to live in Queensland.  … Continue reading Mother unilaterally went to Queensland for medical treatment – then stayed…

Grandmother’s parenting application opposed by parents – dismissal

Penn & Haughton & Anor [2013] FCCA 1941 In this case a paternal grandmother had lodged an application for the children to spend time with her.  The children’s parents were “implacably opposed to the children spending time with [her]”.  There had been no relationship with grandmother since 2010.  In his decision His Honour stated at … Continue reading Grandmother’s parenting application opposed by parents – dismissal

`Sign the pre-nup, or the marriage is off!’ – unconscionable conduct

Judge Phipps set aside a s90B financial agreement in the case of Parkes v Parkes [2014] FCCA 102,  that had been made just two days before the parties’ wedding.  The husband had raised the issue of a pre-nuptial agreement three days before their pre-arranged wedding date. The husband had said to the wife “if she did … Continue reading `Sign the pre-nup, or the marriage is off!’ – unconscionable conduct

Appeal against property orders allowed

Vadisanis & Vadisanis and Anor [2014]FamCAFC97 -12/6/2014 The case was an appeal by the wife against the property orders made at trial by Fowler J. The question of whether the “intervener” (the mother of the husband “V”)  had the benefit of a resulting trust, implied or constructive trust over the money advanced by her to … Continue reading Appeal against property orders allowed

Adjustment to Property Order due to Wife’s Contribution During Marriage

Marsh v Marsh  [2014] FamCAFC 24 (25 February 2014) The Full Court of the Family Court llowed the wife’s appeal against an earlier property order, The case involved a 21 year marriage with three children. where the parties had been separated for 10 years, The property pool growing in this time from $3.5m to $4.8m. … Continue reading Adjustment to Property Order due to Wife’s Contribution During Marriage

Rejection of Approach of attributing Percentages to Property Contributions

Bolger & Headon [2014] FamCAFC 27 (27 February 2014) The Full Court of the Family Court allowed H’s appeal against a 51/49 property order in his favour. There was no children to the marriage, however there was a  a net  property pool of $1.5 million. The husband’s initial contribution was valued at half the pool and … Continue reading Rejection of Approach of attributing Percentages to Property Contributions

Consent Order for Equal Time Discharged upon Commencement of Primary School

Case of Meyer & Shipton (No. 2) [2013] FCCA 2198 (19 December 2013) There had been a consent order in place for the parties’ son for three years, providing the parties’ for equal access, despite the parties living approximately one hour’s drive from each other. This worked well, but when the son was due to begin primary … Continue reading Consent Order for Equal Time Discharged upon Commencement of Primary School

Status of Unwritten Parenting Agreement Tested

Case of Bevan [2014] FamCAFC 19 (19 February 2014) According to the the Full Court of the Family Court: “The primary issue [was] whether [the trial judge] erred in concluding it was just and equitable to alter existing property interests when the parties had largely lived apart for 18 years and the husband had told the wife she … Continue reading Status of Unwritten Parenting Agreement Tested

Parental Responsibility for Certain Issues can be Sole or Joint

Case of Doherty [2014] FamCAFC 20 (19 February 2014) In this case, the Full Court of the Family Court dismissed the father’s appeal against an order made by Demack FM as to parental responsibility which was made “sole” as to some issues but otherwise to be equally shared. After considering he husband’s submissions, the Full Court stated: … Continue reading Parental Responsibility for Certain Issues can be Sole or Joint

Valuing Family Businesses may require looking beyond the Hypothetical Prudent Purchaser

Case of Ledarn & Ledarn [2013] FamCA 858 (1 November 2013) There was a breakdown of a 29 year old marriage. The Court had to deal with a dispute over which party should keep the family business (a large manufacturer of car accessories), and also the value of this business. The wife had been the manager of … Continue reading Valuing Family Businesses may require looking beyond the Hypothetical Prudent Purchaser

Binding Financial Agreement Voidable by Wife due to the Husband’s Conduct

Case of Adame & Adame [2014] FCCA 42 (16 January 2014) In this case, the wife sought to have a financial agreement for the distribution of the parties’ matrimonial property set aside, for a number of reasons including: – (a) while the wife’s lawyer gave her some advice, the advice did not sufficiently detail the wife’s rights … Continue reading Binding Financial Agreement Voidable by Wife due to the Husband’s Conduct

Where Variation of Child Maintenance Order Reasonable

Case of Wentworth v Wentworth [2013] FCCA 2043 (11 December 2013) As a result of the father making tentative arrangements to offer his twin children casual full-time employment, Judge Monahan in this case varied the adult child maintenance paid to enable the children under section 66L of the Family Law Act 1975 to finish their tertiary … Continue reading Where Variation of Child Maintenance Order Reasonable

Leave to proceed not required in relation to a “foreign divorce”

Case of Anderson & McIntosh [2013] FamCAFC 200 (13 December 2013) Section 44(3) of the Family Law Act 1975 provides that proceedings for the distribution of matrimonial property cannot be heard if the parties have been divorced for more than 12 months, without leave of the Court. In this case, the parties were divorced in a foreign … Continue reading Leave to proceed not required in relation to a “foreign divorce”

An Aunt is not a “Parent” for the purposes of the Family Law Act

Case of Burton & Churchin & Anor [2013] FamCAFC 180 (15 November 2013) Section 60CC(2) of the Family Law Act 1975 provides that in considering what are in a child’s best interests, the court must consider the benefit of the child having a meaningful relationship with both “parents”. In this case, the Full Court of the Family … Continue reading An Aunt is not a “Parent” for the purposes of the Family Law Act

Husband’s contribution adjusted in Family Law Property Proceedings due to “Waste”

Case of James & James [2013] FCCA 1188 (23 August 2013) This case involved a 20 year marriage where the husband and wife performed  ”traditional” roles, with there being  two children of the marriage and an asset pool of approximately $400,000. Before the Court, applying section 79 of the Family Law Act, Justice Phillips adjusted the … Continue reading Husband’s contribution adjusted in Family Law Property Proceedings due to “Waste”

A Matter of Trust in the Family Court

Case of Romano & June [2013] FamCA 344 (17 May 2013) The issue was whether the assets of the trust were to be included in the pool of matrimonial property to be divided pursuant to Part VIII of the Family Law Act 1975. The husband was the director, but not a shareholder, of the corporate … Continue reading A Matter of Trust in the Family Court

Free Accommodation Provided by Parents Relevant in Property Settlement

Case of Panagakos [2013] FamCA 463 (18 June 2013) This case concerned the distribution of the parties’ asset pool after 18 years of marriage. The asset pool, excluding superannuation, was considered to be around $1.4 million. The husband had initially contributed real estate worth $430,000 and the wife contributed real estate worth $315,000. Loughnan J … Continue reading Free Accommodation Provided by Parents Relevant in Property Settlement

Family Court departs from “Special Contribution” Doctrine in favour of husband

Case of Kane & Kane [2013] FamCAFC 205 The husband had paid around $540,000 for shares, and by the time of the divorce they were worth $1,850,000. The overall value of the superannuation fund was $3,400,000. The trial judge awarded the husband two thirds of the fund on the basis that his “special skills” in … Continue reading Family Court departs from “Special Contribution” Doctrine in favour of husband

Variation of Parenting Order where applicant parent breaches the order

Case of Prewett & Mann [2013] FamCAFC 130 (27 August 2013) Fowler J granted the mother’s application to vary a final parenting order, holding that there had been the necessary “significant change in circumstances”. Mother was required by order to live in Sydney. She moved to the south of Sydney for financial reasons. Mother applied … Continue reading Variation of Parenting Order where applicant parent breaches the order

Family company and allocation of debts in property distribution case

Case of Payne & Payne [2013] FCCA 794. Family company was in liquidation. Husband established new company and took customers from the old family company. Husband’s father paid the debts of the family company, taking over the bank as creditor. The Court ordered it was appropriate to make an order for an indemnity of the … Continue reading Family company and allocation of debts in property distribution case

Property distribution in de facto relationship case

Case of Abell & Vogel [2013] FamCA. The case concerned de facto partners who were in a relationship for less than twelve months, but purchased a home together and had a child. The female partner had contributed more money to the home than the male partner, however the male had prepared most meals and done … Continue reading Property distribution in de facto relationship case

Property distribution and representations made during marriage

Case of Bevan & Bevan [2013] FamCAFC 116. Husand took off in 1994 saying he was going “to the sea”, after over 20 years of marriage. Husband said to the wife that all the matrimonial property was hers. The couple travelled together regularly at the wife’s expense until 2004. At trial, the asset pool was … Continue reading Property distribution and representations made during marriage

Binding Financial Agreements and Lawyer’s Certificates

Case of Hoult & Hoult [2013] FamCAFC 109 (26 July 2013) Appeal against a section 90B Binding Financial Agreement. Wife denied receiving independent legal advice, as required before a financial agreement is binding under the Family Law Act 1975. Originally held that the agreement was not binding. On appeal, Thackray J found that the trial … Continue reading Binding Financial Agreements and Lawyer’s Certificates