Jaswinder (Jas) Sekhon, Author at Goldman Law

31 January 2025in Family Law

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 brought to the High Court on appeal from a decision of the Full Court of the Family Court of Australia.

Background

This matter concerned a separated Husband and Wife after the Wife commenced proceedings in the Family Court. The Wife asked the Family Court to consider the parties’ property and financial circumstances and decide how the property between them should be divided. The parties were married in 2001 and separated 26 September 2013. There were 2 children from their relationship together.

The Wife asked the Family Court to consider an application for interim spousal maintenance while the court proceedings were underway. The court granted the Wife’s request. The Husband disagreed with the Family Court’s decision and lodged an appeal with the Full Court of the Family Court (“Full Court”). The Full Court reversed the Family Court’s decision thereby stopping the Husband from having to pay interim spousal maintenance to the Wife. The Wife disagreed with the Full Court’s decision and then appealed to the High Court of Australia (“High Court). The Wife’s appeal was dismissed by the High Court.

Spousal Maintenance

Spousal maintenance is payable under section 72 of the Family Law Act 1975 (Cth) where one of the parties is unable to adequately support herself or himself as a result of:

caring for a child or children under the age of 18;
age, physical or mental incapacity which hinders employment; or
for any other adequate reason.

A court must consider section 75 of the Act when determining whether there is an adequate reason to justify spousal maintenance. These factors include but are not limited to:

the age and health of a party;
the income, property and financial resources of a party;
the earning capacity of a party and any affect the relationship had on the party’s earning capacity;
the commitments of each party to support himself or herself, any children or another person;
the eligibility of a party for a pension, allowance or benefit;
the eligibility for payments from superannuation;
the standard of living that is reasonable in the circumstances;
the period of the relationship and the contributions made by a party to the relationship;
child support being paid or that a party might be liable to pay for a child of the marriage;
whether a party is cohabitating with another person and the effect this cohabitation has on the financial circumstances of that party; and
any other fact or circumstances that in the opinion of the court would be just to take into account.

Wife’s Spousal Maintenance Application

The Wife made an application to the Family Court for an order that the Husband pay interim spousal maintenance for $10,833 per month. The Wife asked that this be paid until determination of the property proceedings between the Husband and Wife.

The Family Court granted the interim spousal maintenance application. The Husband disagreed with the Family Court’s decision and filed an application to discharge the interim spousal maintenance order. To support the Husband’s case he investigated the Wife’s financial circumstances. The Wife’s father had passed away in 2009. The Husband discovered that the Wife might have an entitlement under the father’s Will. One of the Wife’s brothers was administering the father’s estate as the Executor. The Husband attempted to subpoena the father’s will. The Executor refused to provide a copy of the Will. Instead, a solicitor on behalf of the brother provided an affidavit outlining the potential entitlements that the Wife may be entitled to under the Will as:

$16,500,000 if she divorced; and
An annual payment of $150,000 if the Wife did not divorce.

In the father’s Will he stated that the payments were to be paid by a group of companies that the father controlled when he was alive. The group of companies (the V Group) were left to the Wife’s 3 brothers. The solicitor on behalf of the brother claimed it was unlikely that the Wife could force the V Group to make the payments. The Wife claimed she was unaware of the contents of the father’s Will.

The Family Court heard the Husband’s application to discharge the interim spousal maintenance order and dismissed the Husband’s application. The Husband disagreed with the court’s ruling and appealed to the Full Court.

Husband’s Appeal to the Full Court of the Family Court

The Husband claimed the Primary Judge from the Family Court was wrong in dismissing his application to discharge the interim spousal maintenance order. The Husband claimed he provided sufficient evidence to show the Wife did not need spousal maintenance to support her.

On the other hand, the Wife provided a letter from her brother who was administering the father’s estate. The letter explained that the payments to the Wife in the father’s Will were voluntary. The letter stated that the payments could only be made by the V Group by choice of the Directors.

The Full Court concluded that the Family Court had failed to consider all of the evidence from the Husband in the original interim spousal maintenance hearing.

The question before the Full Court was whether there was sufficient evidence that demonstrated that the Wife could adequately support herself. The Full Court inferred from the evidence available that the Wife could receive a payment from the V Group of $150,000 annually if she requested it. Based on this the Full Court found the Wife could adequately support herself and dismissed the interim spousal maintenance order.

The Wife disagreed with the Full Court’s decision and appealed to the High Court.

Wife’s Appeal to the High Court of Australia

The High Court determined that the Wife’s claim that the annual payment of $150,000 could not be included as a financial resource under section 75(2)(b) and section 75(2)(o) of the Act was wrong. The High Court stated that section 75(2)(b) of the Act concerned the practical ability of a party to support himself or herself. The High Court confirmed the correct interpretation under section 75(2)(b) of “financial resources” as being a source of financial support that a party can reasonable expect to be available. This must be something more than benevolence but the party need not control the financial source. Accordingly, the High Court dismissed the Wife’s appeal and upheld the Full Court’s decision.

31 January 2025in Family Law

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

Introduction

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 Circuit Court of Australia. The matter involved property and parenting. The parties settled property matters leaving the parenting matters to be determined by the Court.

In this case, the mother requested the Court’s permission to relocate with the children from North Queensland to Brisbane. The father asked that the court make orders requiring the children to remain in North Queensland. A major issue, in this case, was that the parties’ youngest child was disabled. The mother was the primary carer for the children and wanted to move to Brisbane to gain the support of family members who lived there.

Background

The mother and father separated in June 2011. They both lived in North Queensland. The mother is the primary carer of the party’s three children. John was born in 2003, Sue was born in 2007, and Daisy was born in 2008. Daisy has autism and is severely disabled.

The mother had the children in her care the vast majority of the time. Due to Daisy’s disability, the Court accepted that caring for Daisy is a full-time job. The mother claimed she was “at the end of her tether” in being able to look after the children. As a result, the mother wished to relocate to Brisbane where she claimed she would receive support in caring for Daisy from family members.

Mother’s Proposed Relocation

The primary grounds of the mother’s relocation request were the care requirements of Daisy; the lack of support from the father in caring for the children, and that the mother’s family in Brisbane could assist her to care for the children.

The Court received evidence from the mother’s family members including the maternal grandmother, mother, uncle, aunty, brother, niece, and cousin. The uncle claimed that he could assist with providing handyman services and assisting the mother generally. The grandmother stated she could provide some assistance and would be available in emergencies. The cousin stated she would be available to help with Daisy but that she also studied on a full-time basis. The aunt claimed that she would be available for ongoing assistance to the mother.

Current Parenting Arrangements

The mother discussed the circumstances of the children including that Daisy was very demanding and would have “meltdowns”. As a result of this, John and Sue received little attention. John was a demanding child and as a result, Sue received the least amount of attention.

The father, through his own admission, favoured John over the other children and would often do activities with John while excluding the girls. After the parties’ separation, the father had little involvement with the children. The father’s only attempt to have greater contact with the children was when proceedings were commenced by the mother. The father used excuses as to why he did not want more contact with the children including due to an incident at Daisy’s special needs school.

The Court noted that the father had not sought the assistance of the government or other services to assist with the care of Daisy nor assisted the mother in this regard. The Court also noted that the father often called on other family members to look after the children when they were in his care.

The Court concluded that the father puts himself first over the parenting, behavioral and educational needs of the children.

Assessing the Mother’s Relocation Request

The court referred to the case of Lansa & Clovelly [2010] FamCA 80 at paragraphs 136 to 152 for guidance. This requires that a court apply section 60CA of the Act which states that a child’s best interests is the paramount consideration when making parenting orders. The court in Lansa & Clovelly stated that “parents of children each have, by the fact of parenthood alone, parental responsibility”. Section 61B of the Act states that parental responsibility includes “all the duties, powers, responsibilities and authority” that the law provides to parents to parent children.

The Court also referred to the case of Heath & Hemming (No 2) [2011] FamCA 749. This case discussed the law regarding relocating parents in parenting matters. According to the case, a court must consider relocation matters under section 60CA of the Act with the best interests of the child as the primary consideration. A court should then consider section 60CC which provides guidance in determining what is in the best interests of a child; the primary considerations being:

a child has a meaningful relationship with both parents; and
the child be protected from physical or psychological harm.

The court determined in Heath & Hemming, that a court must consider both the current and previous parenting arrangements. Further, the court must determine a child’s best interests while contrasting a parent’s right to choose where to live.

The Court then considered the case of Sigley v Evor [2011] FamCAFC 22 as to the determination of a meaningful relationship between a child and parent. This included that:

under section 60CC(2)(a) of the Act, the benefit of the child having a meaningful relationship should be considered at the time of the hearing;
under section 60CC(3)(b) the existing relationship between a child and parents should be considered; and
that the Act promotes a “meaningful relationship” but this need not be optimal.

In Sigley v Evor, the court determined that factors determining what is in a child’s best interests in a relocation case may include a parent’s:

better economic prospects through employment;
better housing and facilities; and
enhanced economic circumstances through a provident partnership.

Conversely, limited employment opportunities or financial circumstances may be considered.

The Court’s Decision

In determining this matter, the Court stated that each child needed to be considered separately. The Court determined that John did not want to move and it would be a detriment for him to move away from the father. The Court considered that Sue received little attention from both parents due to the special needs of Daisy and the father favouring John. The Court considered it would be in the best interests of Sue to allow the relocation. The Court considered Daisy’s needs and determined that she was likely to receive more support and assistance in Brisbane and that relocation would be in her best interests.

In determining the matter, the Court considered that the mother lived in a rural location and was struggling to cope with providing care of the children especially as one child has a severe disability. The rural location reduced the services available to the mother and placed her in hardship. On the other hand, the father chose to live a liberal lifestyle and only had the care of the children as it suited him.

The Court considered that if the mother was allowed to relocate to Brisbane, it was highly likely that she would receive support from family members. It was likely that this support would result in the children receiving more attention from the mother and that all the children would enjoy better support overall. This was in the best interests of the children.

Based on these factors, the Court made orders that the mother is allowed to relocate from North Queensland to Brisbane.

31 January 2025in Family Law

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 are pursuant to s 60 CC (2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).

Background

This case involved a unilateral relocation to the US sought by the father while on holiday with his two sons of almost 17 and 15 years of age. The two boys wished to reside with their father whilst their 12-year-old siblings continued to reside in Australia with their mother. The existing orders made in 2014 were for equal shared parental responsibility and the three children were to live with the mother and father as agreed between the parties or at the children’s own election.

The family lived in Australia until January 2016 when the father took both sons for a holiday to New York with the mother’s consent. During the course of the holiday, the father expressed to the mother his intentions of remaining in New York indefinitely with the two sons.

The father gave evidence under oath that the boys expressed their wish to remain in New York with their father. The children claimed they had an estranged relationship with their mother, therefore, did not wish to return. The mother was granted a recovery order and the father’s appeal was dismissed. The Court reinforced in relation to a child’s view that “context is critical”.

Central Issue in the Case

The central issue in this matter was whether the children’s views should be taken into consideration. In this case “context was considered to be critical”. The Court ruled that the children be returned to their mother and that a report was required that dealt with more than simply the boys’ views.

The Court ruled the report was required to assess the dynamics of the sibling relationships and their respective relationships with their parents.

Considerations

Ryan and Aldridge JJ in the majority held that the primary judge was satisfied it was in the best interests of the two boys to return to Australia pending a determination about whether, in the long-term, they would continue to reside in Australia or relocate to the United States.

If the father decided to return to Australia with the two boys, they were to continue living with him, however, if he remained in New York, the boys would live with the mother in Australia. As the boys had a strained relationship with their mother, the Orders provided that the mother and boys could make arrangements for the boys to stay with nominated third parties without the father’s approval.

His Honour mandated that a report which dealt with more than simply the boys’ views was necessary as the Court would not examine such factors as to the dynamic of the sibling relationship and also each sibling relationship with their parents. The report was ordered to take place in Australia where all family members were able to participate.

His Honour expressed disdain in the father’s breach of the orders and in doing so the father demonstrated poor judgement as a parent and ‘as a role model to the boys’. For the Court to agree with the father’s behaviour would fail to acknowledge what might be considered appropriate parental behaviour.

Conclusion

Section 60CC(2) and (3) of the Act requires consideration of the following:

· the boys’ expressed views as against the damage currently done to the mother’s relationship with both sons;

· the father and daughter relationship; and

· the daughter’s relationship with her brothers by the unilateral action of the father.

These factors need to be considered alongside the history and family dynamics and any identified risk factors.

If not for the mandated order to return both children to Australia, the Court raised concern that the above relationships will be irretrievably damaged. Therefore, the Court found it in the best interests of all three children to make the orders for the return of the boys to Australia.

Father’s Grounds for Appeal

As there was an order for equal shared parental responsibility pursuant to s 65DAA, the father relied on the ground of appeal that the Court was obliged to consider whether or not an order for an equal or substantial and significant time was in the best interests of the children and reasonably practicable prior to ordering the return of the boys to Australia. However, the Court did not accept that an application for an order that a child lives exclusively with one or another parent is an application for a substantial and significant time.

Section 65DAA (2)(b) of the Act requires that the Court consider whether the child spending time with each parent would be in the child’s best interests. The father also contended that sufficient weight was not given to the children’s views.

However, in the case of Maldera, it was found that it is not a requirement for a judge in his Honour’s position to make orders consistent with a child’s stated views. Instead, a primary judge is required to consider the weight to be given to such views.

Factors Giving Weight to a Child’s Expressed Views

The Court stated there is a range of factors that may affect the weight given to a child’s expressed view which include age and level of maturity of the child in question. Therefore, context is critical as it is a matter for the judge to determine how giving effect to a child’s stated view aligns with the best interests of the child.

The case of R & R (Children’s Wishes) [2002] FamCA 383 illustrates this point. The parties and the Court were satisfied that each child could choose who they would live within Australia. The children, however, were not permitted to make other significant long-term decisions as that power remained vested in the parties jointly. The majority dismissed the father’s appeal and ordered that the father pay the independent children’s lawyer’s costs.

Allowing the Appeal

Le Poer Trench J allowed the appeal on the basis that the hearing should have been adjourned with the mother required to provide additional information about the proposal for the children to live with the volunteers.

Furthermore, the independent children’s lawyer should have been given an opportunity to investigate the proposal in the usual way that it is carried out. The father should have also been required to notify the Court of his intentions to accompany the boys on the trip back to Australia in the event the order sought by the mother is granted.

Le Poer Trench J also believed the father should have been given an opportunity to put forward a proposal to house the boys in Australia pending the determination of the mother’s parenting application and any simultaneous parenting application he would be entitled to make. Le Poer Trench J believed there was no urgency in the matter that should have disregarded these requirements.

31 January 2025in Family Law

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 husband must pay the wife a sum of $51,000, an amount which, combined with the net value of a mortgaged home purchased by the wife after separation equalled approximately 10% of the $1.4 million asset pool.

Facts

The husband was 22 years older than the wife and had three children from a previous relationship. He won $622,842 in lottery 12 months into their 10-year relationship. The husband invested his winnings, along with his savings, into a term deposit account consisting of $650,000 in his own name. Both the husband and wife led largely separate financial lives. The husband inherited $190,000 from his mother’s estate which he also kept separate.

The Full Court said that the judge correctly considered the husband’s savings and investments as contributions on his part. The first point of appeal by the wife, however, was that the lottery win of $622,822 was incorrectly treated as a contribution by the husband. The wife argued that the lottery win should be treated as a joint contribution by the parties.

In arguing that the husband’s lottery was a joint contribution, the wife acknowledged that the husband bought the ticket and deposited the money into his account. The wife believed that the lottery winnings should have been considered as a joint contribution on the basis that they were also in a relationship. Despite being in a relationship, however, the wife said that they each maintained separate bank accounts as this is what the husband wanted. The wife argued that the trial judge incorrectly applied the decisions of Zyk v Zyk (1995) FLC 92-644 and Eufrosin & Eufrosin [2014] FamCAFC 191 by giving undue weight to the financial aspects of the purchase of the ticket and the financial relationship of the parties rather than the “joint endeavour” (being that the ticket was purchased during the parties’ relationship).

Finding at First Instance

The Court held at first instance that in addition to noting that the lottery money had been retained separately along with the $190,000 that the husband inherited in 2007 from his mother’s estate, it was clear that the parties kept their assets and finances separate from each other. They each had separate bank accounts and the wife attested to this when she responded that it was always her husband’s request that their respective accounts be kept separate and that the husband never wanted a joint account. The Court found that the husband’s weekly lottery purchase was not intended to be a “joint matrimonial purchase”. Further, the wife did not have practical control of the family finances.

The Full Court

According to the Full Court, it was better to approach the issue as one of a ‘contribution’ rather than a ‘windfall’ for the simple reason that the latter isolates the asset into a special category outside the traditional approach family law property proceedings (applying section 79 of the Family Law Act) dealing with the contribution of the parties.

The Full Court perceived the critical question in such cases to be ‘who is the contribution made by’. In ordinary marriages, the ticket would be purchased by one of the parties to the marriage with money that he or she happens to have at that particular time. Therefore, it is widely acknowledged that irrespective of the parties’ financial positions or otherwise, the purchase of a ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly. It would equally apply if one party was working and the other was not as it is the type of partnership selected by the parties.

The Court explained that generally this approach would be adopted, however, there are times and situations where this is not the practicality of the matter at hand. The Full Court in Eufrosin & Eufrosin [2014] FamCAFC 191 adopted a similar approach. In this case the wife had purchased a winning lottery ticket six months after the parties had separated. The winnings were $6,000,000 of which the wife gave her sister $1,000,000 and kept the remaining $5,000,000.

According to the Court, the origin of the funds should not determine the issue of how a lottery win should be treated for the purposes of section 79 of the Family Law Act (which deals with contributions of the parties). What is critical here is the nature of the parties’ relationship at the time the lottery ticket was purchased.

Conclusion

The Full Court found that the purchase was initiated by the husband independently of the wife, consistent with a lengthy practice of the husband’s alone that pre-dated the relationship by about eight years. Rather than share or utilise any of the proceeds with the wife, the husband continued to treat his property as his solely. The wife accepted that this was the husband’s intention even if she was dissatisfied with this.

The wife’s appeal was dismissed with the contribution being recognised as one by the husband and not a joint contribution.

27 January 2025in Family Law

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; the 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 [2016] FCWA 19 (24 March 2016) was heard in the Family Court of Western Australia.

The matter was heard by Chief Judge Thackray on an urgent basis, and revolved around a sick child (“Oshin”) who had a brain tumour. With standard medical intervention the child had a 50% chance of survival after 5 years. Without treatment, it was certain that he would die in a matter of months. The parents, however, objected to treatment based on an underlying belief that the child would suffer. Princess Margaret Hospital believed it was in the best interests of the child that he have the standard treatment and applied to the Court to make this order.

Background

5-year-old Oshin became ill sometime in November 2015. The parents took Oshin to the doctors on several occasions and were referred to the Princess Margaret Hospital (“PMH”). Oshin was severely ill and medical tests revealed that he had a brain tumour.

The medical advice to the parents was that Oshin required urgent surgery to attempt to remove the brain tumour. The parents accepted this advice and consented to surgery. On 3 December 2015 Oshin underwent surgery to remove the brain tumour. The surgery removed the bulk of the brain tumour but there were side effects. The parent’s found the side effects and impact of the surgery on Oshin to be very troubling and they had concerns about the amount of time it took for Oshin to recover.

Parents Refusal for Standard Treatment

During Oshin’s recovery from the surgery, it was recommended that he receive treatment including both chemotherapy and radiotherapy. However, Oshin’s parents disagreed with this course of action based on Oshin’s reaction to the surgery. The PMH referred the matter to an Ethics Committee for further consideration and direction.

The Ethics Committee advised that its decision had to reflect what was in the best interests of the child. It concluded that at times it might be necessary to limit parental autonomy to act in the best interests of the child. To assist in considering what was in the best interest of a child, the committee proposed that decisions should be based on the burdens and benefits of treatment to the child.

On 16 February 2016 and 17 March 2016 Oshin underwent medical resonant imaging. The observations from these procedures revealed that the brain tumour was proceeding in a linear path rather than spreading in an explosive like pattern. Based on this information, the doctors involved in Oshin’s treatment concluded a standard approach to treatment was appropriate rather than a palliative approach. Without this treatment, the Committee thought that Oshin would die.

Based on this advice and the parents continuing refusal to consent for Oshin to receive treatment, the PMH commenced proceedings for a court to determine what is in the best interests of the Oshin.

Court’s Jurisdiction

In order to decide upon the matter before it, the court must have jurisdiction. Oshin’s parents were not married and were in a de facto relationship. In the WA jurisdiction, de facto matters are dealt with under the Family Court Act 1997 (the “Act”) of Western Australia and not the Commonwealth Family Law Act 1975.

Section 132 of the Act provides that a court has jurisdiction under the Act to make orders relating to the welfare of the child and that regard must be had to the best interests of the child as the paramount consideration. The judge continued on to say these provision confer the parens patriae (parent of the nation) jurisdiction of the Western Australia Supreme Court on the Family Court of Western Australia.

Who Make Bring an Action in the Best Interests of a Child?

According to section 185(2) of the Act, the following people may apply to the court for it to exercise its jurisdiction to act in the best interests of the child:

either or both parents;
the child;
a grandparent; or
any other person concerned with the care, welfare or development of the child.

Court’s Approach to Order Treatment for Child with Life-Threatening Cancer

The evidence provided to the court based on expert medical opinion was that Oshin’s chances of survival if immediate curative treatment was provided could be:

If only chemotherapy was provided, 30% after five years; and
If both chemotherapy and radiotherapy were provided, 50% after five years.

The Court referred to the High Court case of Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s Case”) for assistance in its determination. This case found that parents have an implicit power to consent to medical treatment for a child incapable of providing consent.

The Court also referred to the case of Minister for Health v AS (2004) 29 WAR 517, and the decision in that case that “protection of the child should be evaluated above all other interests, although those other interests should not be disregarded” and that the court’s power should be exercised “with great caution”.

The Court considered that while parents almost always act in the best interests of a child, they may face great difficulty is seeing beyond the immediate circumstances of the child to the long term future especially when faced with such difficult circumstances.

In this case, Oshin faced certain death if he did not receive treatment. If he did receive the treatment he had a 50% chance of surviving the past 5 years and potentially being cured. The Court determined that it would be in the best interests of Oshin that he undertake the standard curative approach of treatment. The Court found that “the prospect of the long-term cure is the matter that must most heavily weigh in the decision”.

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.

24 January 2025in Family Law

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 hearing heard by Judge Collier (“trial judge”), his Honour made findings on 23 July 2013 that the property of the marriage be divided in the wife’s favour, with the wife receiving 56.4% and the husband 43.6%. The trial judge took into account the husband’s illnesses as a factor affecting his life expectancy. This resulted in an adjustment in the wife’s favour as she would have greater future needs as she would live longer than the husband. The husband appealed on various grounds including that his life expectancy could not be determined at the present time. The Court upheld the appeal deciding that the trial judge erred in making an adjustment to the asset pool in the Wife’s favour based on the evidence available about the husband’s life expectancy.

Background

At the time of the trial hearing, the husband was 49 years of age and the wife was 43 years of age. The parties commenced cohabitation and married in 1993. They separated in 2008. There was one child from the marriage who was 15 years of age.

Since the parties’ separation, the child was primarily in the mother’s care. It was determined that the child would go to boarding school and that there would be an equalisation of parenting and financial responsibility for the child, but as the father had poor health there would be a greater burden on the mother in the future.

The wife was earning approximately $200,000.00 per annum and previously the husband was earning approximately $250,000.00 per annum.

Husband’s Health Issues

The husband had a number of complex health issues including renal failure and diabetes. The husband was receiving income protection insurance at the rate of $150,000.00 per annum. Expert evidence from doctors indicated that if the husband did not manage his diabetes he would have a significantly shorter life expectancy but with proper management, he could live for a long time. Further, the husband was waiting for a liver transplant. It was submitted that if the husband had the liver transplant he could live anywhere from 8 to 20 years, or possibly longer. Without the liver transplant, it was unlikely the husband would be able to return to work.

Trial Judge’s Findings

In determining the matter, the trial judge found that the husband’s life expectancy would be effected by his illnesses. The grounds for this finding was under section 75(2) of the Family Law Act which allows the Court to make an adjustment to contributions taking into account a number of factors. The trial judge found the husband was in “poor health”, that no variation should be made based on the disparity in the parties’ income earning capacity; that no variation should be made for the care of the parties’ child except with regard to the decline in the husband’s health and that the husband’s lack of full and frank disclosure should be taken into account.

The trial judge concluded that the husband’s life expectancy was less than the wife’s life expectancy and that an adjustment should be made on these grounds. The trial judge ruled that the wife receive 56.4% of the asset pool and the husband receive 43.6%.

Grounds of Appeal

The husband appealed on a number of grounds including that the trial judge erred in his finding that there should be no adjustment in the husband’s favour due to the wife’s superior income earning capacity, and on the basis that the trial judge could not conclude that the husband would not receive a liver transplant which would increase the husband’s income-earning capacity.

Appellate Judgement

Conclusion

24 January 2025in Family Law

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 initial contribution of $168,000 and the husband’s contribution was $960,000. Post-separation contributions were also included.

The husband was a registered builder at the time the parties separated and the wife was a part-time teacher. The husband’s income had been assessed at $585,358, with the wife’s income being $32,926.The value of what the parties contributed financially at the start of the relationship was not in dispute. According to the Court: “Clearly, the husband’s financial contributions at the commencement of cohabitation and during the course of the relationship far outweighed those of the wife. That is not to say, of course, that the wife did not make direct and indirect financial contributions to the acquisition, conservation and improvement of the parties’ property.”

In considering the parties’ contributions with a view to determining a just and equitable distribution of the parties’ property, the Court was of the view that: “[T]he parties’ relationship was not too short to enable the ‘myriad of other contributions made by the wife to offset, dilute or erode the significance of the initial financial contributions made by the husband. In my opinion, however, the husband’s initial financial contributions remain an important consideration, to which appropriate weight must be given.”

The Court ultimately arrived at a settlement which favoured the husband due to his significant financial contribution going into, and during the relationship: “In all the circumstances (including the seven-year period of cohabitation and the period between separation and the date of trial), I conclude that between 60% and 65% of the overall property pool should be awarded to the husband on the basis of his contributions from the commencement of cohabitation to the date of trial, and the balance to the wife on the same basis. As it would be intellectually dishonest of me to choose either the higher or lower figure within the range I have specified, I shall fix the midpoint – being 62.5% – as being appropriate.”
As to factors in section 75(2) of the Family Law Act that the Court can draw upon to adjust the level of contributions the parties made, the Court considered that the husband and the wife were 50 and 47, that the husband’s earning capacity was “very substantial”, that the children were living with the wife and that the wife was working as a teacher. An adjustment of 7.5% was made under s 75(2) in favour of the wife, producing an overall division of 55:45 in favour of the husband.

24 January 2025in Family Law

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 family presently lives”. The mother also had a 17-year-old child from another relationship.

The parents previously entered into consent orders which provided for joint parental responsibility; the child to live with the mother; and for the father to spend alternate weekends and some school holiday time, subject to his roster. The father and the ICL opposed the proposed relocation, while the mother contended that she would relocate with or without the child.
According to the Court, child X did not want to move and was sad that her mother had purchased a property away from the area in which she has always lived. X wanted to complete her primary education at the primary school where she was currently attending. The father was committed to spending time with X if the relocation was permitted, but preferred that the mother not move. If the mother was to move, the father’s preference was for the child to live with him and continue attending her school as normal.
[8] This is a difficult decision to make. X clearly doesn’t want to go. Her mother is committed to moving, in any event. The father is committed to spending time with X, should relocation be permitted. However, his preference is that the mother does not move with X, but that if she does, X should live with him and spend time with her mother.”
Inciting the importance parenting cases of Goode [2006] FamCA 1346 and MRR v GR [2010] HCA 4, the Court found that:

“ … The father’s candidature to become the primary carer for X was not a strong one.

In reality, this is not a case where the meaningful relationship that X has with either of her parents would be affected by any order that the Court makes. Whether X lives with her mother on (omitted), or with her father in (omitted), she will always enjoy a meaningful relationship with both of her parents, both of whom, it would seem, is ready, willing, and able to continue to facilitate that relationship. …
X appears to have a good relationship with both of her parents, but the evidence leaves the Court in no doubt that the mother has historically been X’s primary carer. … hitherto the father’s time with X has been very much dependent on a coincidence of X’s availability and his being rostered off. … The father’s own evidence is that, if X came into his care, he would be dependent on the assistance of others to get her up each morning and off to school and care for her after school. …

While the Court was concerned about the mother’s statement that should relocate regardless of whether or not the Court ordered that X go with her, and found that the father to be committed to X, it ultimately found that the mother remains the primary carer. According to the Court:

“X’s father is an unknown quantity in terms of being a primary carer, and the proposals that he advances for caring for X whilst he is at work are highly problematic, to say the least. X’s views are, of course, important but in the circumstances of this case, the Court decides that it is more important for her to continue to have the benefit of her mother as her primary carer, even if that means she cannot have what she wants. The important relationship that she has with her father will not be lost because of the frequency of the time that she will spend with her father.”

The Court made interim orders facilitating the relocation, with the father to spend time with the child each alternate weekend with changeovers to occur at a nominated McDonald’s Restaurant.

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Keywords

Background

Spousal Maintenance

Wife’s Spousal Maintenance Application

Husband’s Appeal to the Full Court of the Family Court

Wife’s Appeal to the High Court of Australia

Introduction

Background

Mother’s Proposed Relocation

Current Parenting Arrangements

Assessing the Mother’s Relocation Request

The Court’s Decision

Introduction

Background

Central Issue in the Case

Considerations

Conclusion

Father’s Grounds for Appeal

Allowing the Appeal

Introduction

Facts

Finding at First Instance

The Full Court

Conclusion

Background

Parents Refusal for Standard Treatment

Court’s Jurisdiction

Who Make Bring an Action in the Best Interests of a Child?

Court’s Approach to Order Treatment for Child with Life-Threatening Cancer

Background

Ineffective Financial Agreement

Contributions during Relationship

Assessment of Contributions

Conclusion

Conclusion

Background

Husband’s Health Issues

Trial Judge’s Findings

Grounds of Appeal

Appellate Judgement

Conclusion

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