Daily Archives: 26 January 2025

26 January 2025in Family Law

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, that the High Court of New Zealand was “the more appropriate court” for the purposes of s 19 of the Trans-Tasman Proceedings Act 2010 (Cth) (“the TTP Act”).

Section 17 of the TTP Act relevantly provides that: “(1) A defendant in a civil proceeding in an Australian court may apply to the court for an order staying the proceeding on the grounds that a New Zealand court is the more appropriate court to determine the matters in issue”. Section 19(1) provides: “on application under section 17, the Australian court may, by order, stay the proceeding if it is satisfied that a New Zealand court:

(a) has jurisdiction to determine the matters in issue between the parties to the proceeding; and

(b) is the more appropriate court to determine those matters.”

Section 19(2) provides n determining whether a New Zealand court is the more appropriate court to determine those matters, the Australian court must take into account matters, including:

(e) the law that it would be most appropriate to apply in the proceeding;

(f) whether a related or similar proceeding has been commenced against the defendant or another person in a court in New Zealand;

(g) the financial circumstances of the parties so far as the Australian court are aware of them;

(i) any other matter that the Australian court considers relevant;
and must not take into account the fact that the proceeding was commenced in Australia.

In considering the relevant provisions of the TTP Act and the facts, the Full Court commented that: “We are unable to see any uncertainty, ambiguity or difficulty in the text of the TTP Act. It sits within a broader context of seeking to streamline and simplify the law and processes applicable to disputes with a trans-Tasman element … The TTP Act seeks to harmonise the test for establishing whether a court in New Zealand or Australia should be the forum for determining civil proceedings as defined. The means by which the TTP Act does so is equally unremarkable; it accords to the Australian court a broad discretion exercised within, but not confined to, mandatory considerations.”

Further, the Full Court said:

“Stripped to its bare essentials, the submission made before his Honour, mirrored in the assertion of error before us, is that there was a juridical disadvantage for the wife in proceeding in New Zealand which his Honour did not take into account in considering s 19(2)(e) of the TPP Act … That juridical advantage is said to derive from the different system in New Zealand by which settlements of property consequent upon the breakdown of marriage are decided, which, in turn, the wife contends might result in her receiving less by way of settlement of property than what she might receive from an Australian court.

…

His Honour determined that the requisite question should be answered not by reference to juridical advantage … but to the connecting factors with the law of New Zealand as compared to the law of Australia.
[40] The legitimate juridical advantage gained absent statutory provision by filing regularly in the forum, is specifically excluded by s 19(2) of the TTP Act. Neither s 19(2)(e), nor s 19(2) more broadly, make mention of ‘juridical advantage’ (or, indeed, ‘juridical disadvantage’) as a factor that must be considered in the exercise of discretion. What s 19(2)(e) requires is an assessment of the ‘law that it would be most appropriate to apply – a concept plainly consistent with the overall test of the most appropriate forum.

His Honour determined that question by reference to what might conveniently be called ‘connecting factors’ with the law of each forum. We consider his Honour was entirely correct in doing so.”

Accordingly, the wife’s appeal was dismissed with costs.

26 January 2025in Family Law

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 entered into a de facto relationship. They remained together for about 13 and a half years after which they separated. The parties did not have any children together. At the time of the hearing, both parties were 54 years of age.

At the time of entering into the relationship, the de facto wife had little in the way of assets to contribute. The de facto husband had an unencumbered house (“C Property”) which was worth about $175,000.00 and which both the parties moved into at the time of commencing their relationship.

Ineffective Financial Agreement

The parties entered into an agreement stating that if they separated the de facto wife would not attempt to pursue the de facto husband’s interest in the C Property.

The Court considered the agreement and found that it was not a valid Binding Financial Agreement under the Family Law Act and therefore the financial agreement would not prevent the Court from taking the C Property into account in the property settlement. However, the Court stated that the intention behind the financial agreement would still be a factor that needs to be considered.

Contributions during Relationship

The Court considered each party’s contributions during the relationship and the terms of the relationship. This included that the parties had lived together from the outset in the de facto husband’s unencumbered property. The parties had a close relationship which included socialising together; spending time with the de facto husband’s parents who lived nearby, plus the de facto wife had taken the de facto husband’s parents on holiday and had assisted with their care as they were advanced in age.

The de facto wife had worked both casual and part-time jobs during the relationship and had made some financial contributions to the standing of the relationship. Since 2011 the de facto wife had not worked which she claimed was due to illness. However, there appeared to be a lack of evidence supporting these grounds. The de facto wife was assessed as having a short working life ahead of her as she was 54 years of age.

The de facto husband was working on a full-time basis earning about $47,000.00 per annum in secure employment. The Court considered that the employment involved manual labour and this would affect the de factor husband’s ability to continue working.

It was accepted that the de facto wife did most of the domestic duties and cleaning during the relationship. Both parties contributed to the upkeep and care of their pets.

Assessment of Contributions

In this matter, the de facto husband brought significant contributions to the relationship. The parties had a close relationship and supported each other financially. The de facto wife had worked on a casual or part-time basis but ceased working in 2011. The de facto husband had worked full time during the relationship and had made superior income contributions. The de facto wife had made significant contributions to the domestic duties and looking after the de facto husband’s parents.

Based on these factors, the Court initially made a property division of 72.5/27.5 in the de facto husband’s favour. Upon consideration of future needs, the Court made a 5% adjustment in the de facto wife’s favour as she was unemployed and would have difficulty finding employment.

Significantly, the Court outlined that a sizable initial contribution will be diminished significantly due to contributions during the relationship and especially where the relationship is of a long duration.

Conclusion

The Appellate Court was made up of Judge Strickland, Judge Murphy and Judge Watts. The Court considered the trial judge’s decision and focused particularly on his determination that the husband would have a shorter life expectancy due to illness.

The Court considered the case of Lawrie and Lawrie (1981) FLC 91-102 where that Court had to determine a matter where a party had terminal cancer and would only live a further 6 months. This case included comments “by the way” that an adjustment should only be made where life expectancy was determinable, otherwise it would “open the flood gates” as to the future life expectancy of parties.

The Court next considered the unreported case of S & P of the Family Court of Australia (22 April 1997) which dealt with a husband who had HIV and was thought to have a life expectancy of 5 years. That court considered Lawrie , and stated that the principles from Lawrie were correct but ultimately a judge could use their discretion with regard to health issues.

The Court turned its attention to the trial judge’s conclusion that on the evidence the husband’s life expectancy could not be determined with any accuracy. Despite this, the trial judge made an adjustment in the wife’s favour because the husband was likely to have a shorter life expectancy. The Court found the trial judge was in error in making this finding without being able to provide a measurable period of life expectancy for the husband.

Conclusion

In this matter, the husband had diabetes and renal failure resulting in the possibility that the husband would have a shorter life expectancy compared to the wife. Under section 75(2) of the Act, when considering spousal maintenance, a court may take into account a shorter life expectancy of a party and how this will affect the future needs of the parties.

In this case, the trial judge concluded that he could not determine the husband’s life expectancy based on the evidence, but he still found that the husband was likely to have a shorter life expectancy. The Appellate Court found the trial judge erred and that life expectancy should be taken into account only when a determination as to the likely period of life expectancy can be made.

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Daily Archives: 26 January 2025

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