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Recent Family Law Judgments - Entrenched Conflict 1. Wunscher & Licha [2008] FamCAFC 155 (23 October 2008) Date Delivered: 23 October 2008 2. Wiley & Wiley [2008] FamCAFC 153 (22 October 2008) Catchwords: FAMILY LAW - APPEAL - CHILDREN - with whom a child lives and spends time - relocation from country New South Wales to a town near Melbourne - where the trial judge allowed the mother to take the children to a town near Melbourne to live with her - where the trial judge provided for the children to spend school holiday and some weekend time with the father in country New South Wales - whether the trial judge gave proper consideration to the effect on the children of the mother's mental health - whether the trial judge gave proper consideration to the effect on the children of the relocation - whether the trial judge erred in the application of s 65DAA of the Family Law Act 1975 (Cth) in light of the Full Court cases of Goode & Goode and Taylor & Barker - whether there was a miscarriage of the trial judge's discretion - no substance found in asserted errors - presumption in favour of correctness of discretionary judgments emphasised - appeal dismissed. FAMILY LAW - APPEAL - COSTS - costs order sought by the mother if the father's appeal unsuccessful - costs order not made. Date Delivered: 22 October 2008 Before: Bryant CJ, Finn and Thackray JJ Legislation Cited: Family Law Act 1975 (Cth), sections 60B, 60CA, 60CC, 61DA, 65DAA Cases Cited: A v A: Relocation Approach (2000) FLC 93-035 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Goode & Goode (2006) FLC 93-286 R v R (1998) FLC 92-820 Taylor v Barker (2007) FLC 93-345 Jurisdiction Full Court of the Family Court (post-2008) 3. Sasse & Sasse [2008] FamCAFC 152 (20 October 2008) Catchwords: FAMILY LAW - APPEAL - From decision of Federal Magistrate - PROPERTY - Consent orders made in relation to altering property interests between husband and wife - Five years later those orders were set aside by consent - The issue of whether another order altering property interests ought be made and if so, what order, was litigated in the Federal Magistrates Court - Federal Magistrate published reasons for judgment with a 60/40 division of property in favour of the wife - Federal Magistrate did not make orders but asked parties to file and serve a proposed final order to reflect the reasons for judgment - Parties could not agree on final order - The matter was relisted and the husband made an application under the slip rule for an amendment to a finding made by the Federal Magistrate in relation to the value of a business conducted through a trust - The husband had contended at trial that what should be valued was the trust - After the determination of that issue and other points of disagreement the Federal Magistrate made final orders by way of alteration of property interests and costs - Husband appealed FAMILY LAW - APPEAL - From decision of Federal Magistrate - PROPERTY - Whether the learned Magistrate was correct to include in the asset pool the value of the business rather than the net value of the Trust that undertook that business - Whether, in finding that the business operated by the husband at the date of hearing was the same as the business operated by the parties at separation, the Federal Magistrate erred in fact - Whether the business should have been valued at the date of the first consent orders and whether the Federal Magistrate gave adequate reasons for not so doing - Whether, having valued the business as at the date of hearing, the Federal Magistrate ought have given greater weight to the post-separation contributions of the husband in the development and operation of the business - Whether the Federal Magistrate failed to give adequate reasons for the adjustment of only 5 per cent in respect of the husband's contributions to the date of hearing - Whether the Federal Magistrate ought have added back to the property pool monies allegedly expended by the wife on legal fees in relation to family law proceedings - Whether the Federal Magistrate erred in his assessment of s 75(2) factors resulting in a 15 per cent adjustment in favour of the wife or failed to properly explain that adjustment - Whether the Federal Magistrate erred in failing to make an order for costs against the wife because of her initial resistance to the husband's s 79A application and subsequent consent to the original order being set aside - Whether the Federal Magistrate erred in failing to make an order for costs against the wife because of allegations made by the wife in the trial, but rejected by the Federal Magistrate that she held certain properties in trust for the children of the parties - Some grounds of appeal have merit - Appeal allowed FAMILY LAW - APPEAL - From decision of Federal Magistrate - PROPERTY - Re-exercise of discretion - Asset pool - Add-back - Orders made to carry through the mathematical consequences of substituting the net value of the Trust for the value of the business conducted by it Date Delivered: 20 October 2008 Before: Warnick J Legislation Cited: Family Law Act 1975 (Cth), s 75(2), s 79A Cases Cited: Browne v Green (1999) FLC 92-873 Chorn and Hopkins (2004) FLC 93-204 DJM v JLM (1998) FLC 92,816 G and G [2004] FamCA 1179 Harris and Harris (1991) FLC 92-254 Johnson v Johnson (No.3) (2000) FLC 93-041 Omacini and Omacini (2005) FLC 93-218 Robinson and Higginbottom (1991) FLC 92-209 Jurisdiction Full Court of the Family Court (post-2008) 4. Kostres & Kostres [2008] FMCAfam 1124 (17 October 2008) Catchwords: FAMILY LAW - Property proceedings - financial agreement - whether binding and enforceable. FAMILY LAW - Binding financial agreement - construction thereof. Date Delivered: 17 October 2008 Before: Wilson FM Legislation Cited: Family Law Act 1975, ss.4, 71A, 75, 79, 90B, 90DA, 90G, 90K, 90KA Cases Cited: Black & Black [2008] FamCAFC 7 J and J [2006] FamCA 442 In the Marriage of Blackman (1998) 22 Fam LR 416; FLC 92-791 Taylor v Johnson (1983) 151 CLR 422 In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91-601 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 79 ALJR 1724 Chief Commissioner of Stamp Duties for New South Wales v Buckle (1998) 192 CLR 226 Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 Rich v ASIC (2003) FLC 93-171 Harding v Lithgow Corporation (1937) 57 CLR 186 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 184 CLR 355 Jurisdiction Federal Magistrates Court 5. Banks & Banks [2008] FMCAfam 941 (16 October 2008) Catchwords: FAMILY LAW - Parenting - mother alcohol dependent - mother and child evicted from their home for non-payment of rent - mother undermining child's relationship with his father - mother failing to regularly send child to school - change of residence ordered. Date Delivered: 16 October 2008 Before: Riley FM Legislation Cited: Family Law Act 1975, ss.60B, 60B(1)(c), 60CA, 60CC(1), 60CC(3), 60CC(4), 60CC(4A), 61DA, 65DAA Cases Cited: Rice and Asplund (1978) 6 Fam LR 570 Jurisdiction Federal Magistrates Court 6. Runcorn & Raine [2008] FamCA 837 (16 October 2008) Catchwords: FAMILY LAW - CHILDREN - With whom children live - Discussion of the practical application of s 60CC objects and principles - where the mother makes allegations of risk of physical harm from father and father makes allegations of risk of psychological harm from mother - where the parties have no ability to communicate or co-operate - where concerns exist as to the mental health of the mother - where the children need stability and consistency in parenting - where the mother failed to volunteer information of her pregnancy at trial and failed to consider the impact of household composition for the children -where the mother is dismissive of the father's role in the children's life - where the father doesn't appear on the birth certificate and the mother does not call the children by the father's name - Finding that a significant relationship between mother and children will cause psychological harm for the children - order the children live with the father - order the formal registration of the father on birth certificate - parties to make submissions as to what orders should be made for time spent between mother and children FAMILY LAW - CHILDREN - Parental responsibility - meaning and definition of parental responsibility - where the presumption of equal shared parental responsibility is not in the children's best interests - discussion of the significance of making an order for sole parental responsibility - order the father have sole parental responsibility - order the father notify the mother of decisions relating to long term issues FAMILY LAW - CHILDREN - Allegations of bias and bribery made against report writers - there being no substance to any of the allegations - evidence of the report writers remains untainted by the allegations Date Delivered: 16 October 2008 Before: Murphy J Legislation Cited: Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, 65DAE, 68F and 69ZR Cases Cited: AIF v AMS (1999) 199 CLR 160 Mazorski v Albright (2007) 37 Fam LR 518 Neil v Nott (1994) 68 ALJR 509 Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 7. Anders & Anders (No.2) [2008] FMCAfam 1125 (15 October 2008) Catchwords: FAMILY LAW - Parenting - admissibility of emails. Date Delivered: 15 October 2008 Before: FM Kemp FM Legislation Cited: Family Law Act 1975, s.69ZT Evidence Act 1995 (Cth) s.138 Crimes Act 1900 (NSW) ss.308B, 308H Criminal Code Act 1995 (Cth) ss.476.2 , 478.1 Cybercrimes Act 2001 (Cth) s.478.1 Cases Cited: Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 Ridgeway v The Queen (1995) 184 CLR 19 Jurisdiction Federal Magistrates Court 8. Miller & Harrington [2008] FamCAFC 150 (15 October 2008) Catchwords: Date Delivered: 15 October 2008 Before: Cth Legislation Cited: Cases Cited: Jurisdiction Full Court of the Family Court (post-2008) 9. Rankine & Addison [2008] FamCAFC 148 (14 October 2008) Catchwords: FAMILY LAW - APPEAL - From decision of Family Court Judge - PROPERTY SETTLEMENT - Major issue before the trial Judge was the value of shareholding in a private corporation, held by a family trust - The parties had initially agreed on a single expert witness to value the shareholding - Wife appealed against property orders - Two main contentions on appeal - That the evidence of the expert witness was so flawed it ought have been rejected and, either other expert evidence obtained, or the shares divided between husband and wife, or sold -That a debt of $3,030,300.00 owed by the corporation to the trust had not been included as a trust asset and should have been - A consideration on appeal of the extent to which, and manner in which, these issues were put before the trial Judge - The way the parties' cases were conducted at trial - Whether the trial Judge's failures to reject the expert's evidence or require or permit other evidence and to include as a trust asset the debt from the corporation were open conclusions - Held on appeal that trial Judge's conclusions were open - No merit in contentions on appeal - Appeal dismissed - Costs against appellant Date Delivered: 14 October 2008 Before: BRYANT CJ, WARNICK Legislation Cited: Family Law Act 1975 (Cth), s 75(2), s 79, s 117(2A) Cases Cited: Coulton v Holcombe (1986-1987) 162 CLR 1 Sharman v Evans (1977-1978) 138 CLR 563 Jurisdiction Full Court of the Family Court (post-2008) 10. Border & Border (No. 3) [2008] FamCA 830 (13 October 2008) Catchwords: FAMILY LAW - FINANCIAL - INTERIM - Spousal and child maintenance - Review of Orders of Judicial Registrar - Proper needs of the Wife - Financial Position of the Husband and Capacity to Pay Maintenance - Departure from Child Support Assessment - Poletti Order Date Delivered: 13 October 2008 Before: Watts J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 11. Cranston & Strickland (No.2) [2008] FMCAfam 1112 (10 October 2008) Catchwords: FAMILY LAW - Child aged 7 - family violence - arrangements for child to spend time with father - whether time should be supervised - practicality of professional supervisor - whether time can be supervised by child's paternal grandparents. Date Delivered: 10 October 2008 Before: Brown FM Legislation Cited: Family Law Act 1975, ss.0B Cases Cited: Re: W (sex abuse: standard of proof) 2004 FLC 93-192 A v A (1998) FLC 92-800 W & W [abuse allegations; unacceptable risk] [2005] FamCA 892 Jurisdiction Federal Magistrates Court 12. White & White [2008] FamCAFC 147 (9 October 2008) Catchwords: FAMILY LAW - APPEAL - COSTS - Appeal by the wife against cost order made against her in relation to the trial - where the trial judge ordered that the wife pay 50% of the husband's costs - whether the trial judge erred in her assessment of the financial circumstances of the parties and the conduct of the respondent husband - whether the trial judge erred in finding that Date Delivered: 9 October 2008 Before: Finn, Coleman and Boland JJ Legislation Cited: Family Law Act 1975 (Cth) s 117 Cases Cited: Browne v Green (2002) FLC 93-115 C & C [2006] FamCA 300 Harris & Harris (1991) FLC 92-254 McAlpin & McAlpin (1993) FLC 92-411 Pennisi & Pennisi (1997) FLC 92-774 Robinson and Higginbotham (1991) FLC 92-209 Jurisdiction Full Court of the Family Court (post-2008) 13. Rossi & Rossi [2008] FMCAfam 1098 (8 October 2008) Catchwords: FAMILY LAW - Parenting - mother living in Western Australia and seeks child live with her there - competing applications as to with whom 8 year old boy should live - close relationship with each parent - mother's mental state - allegations of violence. Date Delivered: 8 October 2008 Before: Sexton FM Legislation Cited: Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 65D, 65DA, 65DAA, 65DAC Cases Cited: A & A: Relocation Approach (2000) FLC 93-035 AMS & AIF; AIF & AMS (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 KB & TC (2005) FLC 93-224 H & W (1995) FLC 92-598 M & S [2006] FamCA 1408 Morgan & Miles [2007] FLC 93-343 R & R; Children's Wishes (2000) FLC 93-000 Taylor & Barker [2007] FamCA 1246 U v U (2002) 211 CLR 238 W & R (2006) 35 Fam LR 608 Jurisdiction Federal Magistrates Court 14. IABH & HRBH [2008] FamCA 817 (8 October 2008) Catchwords: FAMILY LAW - RE-EXERCISE OF DISCRETION / NEW TRIAL - Full Court allowed an appeal and remitted the matter for rehearing - Trial Judge to be bound by Full Court determination that husband's contribution up to 15 November 2004 be assessed at 70% - Trial Judge to only hear evidence as to updated value of assets, subsequent contributions and section 75(2) factors - whether potential future Capital Gains Tax ought to be included in the pool or as s 75(2) adjustment - how Capital Gains Tax liability should be calculated - whether determination of contributions ought to be global or asset by asset CHILD SUPPORT - DEPARTURE APPLICATION - Parties agreed that there should be a departure - amount to be paid by husband disputed - additional contributions substantially agreed between parties Date Delivered: 8 October 2008 Before: Faulks DCJ Legislation Cited: Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) Child Support (Assessment) Act 1989 (Cth) A v A [2006] FamCA 1190 IABH & HRBH (2006) FamCA 712 Cavanaugh v Thrum [2002] FamCA 196 G v G (2001) FamCA 1453 Harrison v Harrison (1996) FLC 92-682 IABH v HRBH [2006] FamCA 379 Joyce v Joyce (2006) FamCA 951 Rosati v Rosati (1998) FLC 92-804 Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 15. Wickham & Wickham [2008] FMCAfam 1084 (3 October 2008) Catchwords: FAMILY LAW - Parental responsibility - whether order should be made for equal shared parental responsibility where presumption inapplicable. Date Delivered: 3 October 2008 Before: Wilson FM Legislation Cited: Family Law Act 1975 (Cth), ss.4, 60B, 60CC, 61B, 61C, 61DA, 64B, 65D, 65DAC Cases Cited: Blair & Blair [2007] Fam CA 253 Jurisdiction Federal Magistrates Court 16. Lawlor & Lawlor [2008] FMCAfam 1042 (3 October 2008) Catchwords: FAMILY LAW - Parenting orders - relocation - Wife seeking to relocate to [D] with parties' two children aged four and two - Husband seeks Wife be restrained from removing children from Melbourne Metropolitan area -developmental needs of young children in consolidating relationship with Husband - ordered Wife restrained from relocating with children until October 2009. Date Delivered: 3 October 2008 Before: Bender FM Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA Cases Cited: D & SV (2003) 30 Fam LR 91 E. Mavis Hetherington & John Kelly, For Better Or For Worse: Divorce Reconsidered 88 (2002) Jurisdiction Federal Magistrates Court 17. Christie & Balkin [2008] FMCAfam 665 (3 October 2008) Catchwords: FAMILY LAW - Parenting - best interests of the child - high conflict - lack of communication- willingness and capacity to promote child's relationship with the other parent - meaningful relationship with both parents - relocation. Date Delivered: 3 October 2008 Before: Neville FM Legislation Cited: Family Law Act 1975, Part VII, ss.60B, 60B (1), (1)(a), (2), (2)(b), 60CA, 60CC, 60CC (1), (2), (3)(a), (c), (e) - (m), (4), (4A), 61DA, 65DAA (1), (2) Cases Cited: AMS v AIF (1999) 199 CLR 160 Burke v LFOT Pty Ltd (2002) 187 ALR 612 Carpenter and Lunn [2008] FamCAFC 128 Chappell & Chappell [2008] FamCAFC 143 F v F (2008) 38 Fam LR 52 Goode & Goode (2007) 36 Fam LR 422 Jones v Dunkel (1959) 101 CLR 298 Keach & Keach (2007) FLC 93-353 In re L (A Child) (Contact: Domestic Violence) [2001] Fam 260 Mazorski v Albright (2008) 37 Fam LR 518 Sampson v Hartnett (No 10) (2008) 38 Fam LR 315 Stuart & Stuart [2008] FMCAfam 177 Taylor v Barker (2007) FLC 93-345 W and G (No 2) (2005) FLC 93-248 Cross on Evidence , Seventh Australian Edition (J.D. Heydon) (Sydney: Butterworths - LexisNexis, 2004) T. Altobelli FM, Jurisdiction Federal Magistrates Court 18. Carter & Carter [2008] FamCA 822 (3 October 2008) Catchwords: FAMILY LAW - CHILDREN - Interim Parenting Circumstances Date Delivered: 3 October 2008 Before: Young J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 19. Waters & Lane and Anor [2008] FamCA 816 (3 October 2008) Catchwords: FAMILY LAW - CHILDREN - With whom a child spends time - Where parties agree children will live with maternal grandparents and spend time with the mother - Trial issues relate to parental responsibility and the children spending time and communicating with their father - Risk of harm - Children to spend short amounts of unsupervised time with the father and longer periods of supervised time which is to be supervised by the father's adult daughter Date Delivered: 3 October 2008 Before: Ryan J Legislation Cited: Family Law Act 1975 (Cth) Cases Cited: A v A (1998) FLC 92-800 Goode and Goode (2006) FLC 93-286 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) 20. Harvey & Patterson [2008] FamCA 809 (1 October 2008) Catchwords: FAMILY LAW - CHILDREN - With whom a child spends time and communicates - Best interests of a child - consideration of the term 'meaningful' in the context of s60CC(2)(a) - order that there be limited communication and no time spent between the child and the father. FAMILY LAW - CHILDREN - SEXUAL ABUSE - unacceptable risk - father sexually abused child's siblings and father's sisters- effect on child's family unit. Date Delivered: 1 October 2008 Before: Benjamin J Legislation Cited: Cases Cited: Family Law Act 1975 (Cth) Moose & Moose [2008] FamCAFC 108 Napier & Hepburn (2006) FLC 93-303 A and A (1998) FLC 92-800 Re Andrew (1996) FLC 92-692 B & B (1993) FLC 92-357 Holmen & Farley [2008] FamCA 197 Cave & Cave [2007] FamCA 860 G & C [2006] FamCA 994 C & C & Ors [2006] FamCA 771 W & G (2005) FLC 93-248 Jurisdiction Family Court or Full Court of the Family Court (pre-2007) | Fathers4Equality | this page has been most recently updated on 25 October 2008 | |