In July 2005 the husband and wife both signed consent orders to settle property proceedings between them in the Family Court of Australia (“Family Court”).  The consent orders provided that the wife receive payment of $185,000 and one property and the husband receive two properties and his share in an unprofitable business.

The consent orders also contained a notation that the husband was negotiating to obtain a 50% share in a company (“E”) and the value of the acquisition if successful would be $200,000.  In the parties’ joint application for consent orders, it stated E made a profit of $50,408 in 2004 and there was no expectation of a significant increase in income over the next few years.  Around the time of signing the consent orders, the husband was finalising his purchase of a 50% share in E, with the estimated value in fact being $500,000.  This was not disclosed to the wife.  Further, it transpired that E had earnings of $757,144 and a net profit of $623,000 for the financial year up to 31 January 2005.  This was not disclosed to the wife.

The parties did not have any professional valuations completed on their properties and they both agreed upon estimates.  Around the time of signing the consent orders, the husband estimated the value of a property “D” at $550,000.  However, he also made separate representations when seeking finance that property D was worth $700,000.  This was not disclosed to the wife.

The trial judge concluded that the husband failed to disclose significant information concerning the negotiations and acquisition of company E and he failed to disclose that he had made representations that property D was worth $700,000.  As a result, the trial judge found there was a miscarriage of justice under section 79A of the Family Law Act 1975.  Section 79A allows a court to set aside previous orders where there has been a miscarriage of justice.  The trial judge found that had the wife been aware of the information about property D and company E she would have made further inquiries as to their true value.  As a result, a miscarriage of justice occurred and the trial judge made an award in the wife’s favour.

The mother in this matter was a dual citizen of both Australia and Finland.  The father was an Australian citizen.  They had 3 children together between the ages of 14 and 8.  The parties married in 1996 and moved to the United Kingdom and stayed there for 8 years.  In 2002 they moved to Finland for two months and then from November 2002 they lived in Australia.  On 16 June 2014 the family traveled to Finland to live for a year.  In March 2015 they temporarily returned to Australia for a wedding.  While in Australia the father and mother separated.  The children stayed with the mother.  The father took the children’s passports and refused to let the children return to Finland.

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 having two separate agreements co-exist within one document. It was put forward by Piper that a de facto agreement pursuant to s 90UC o the Family Law Act 1975 could not exist within the same document as an agreement upon marriage pursuant to s 90B. Ryan & Aldridge JJ provided detailed reasoning to the contrary for dismissing Mr. Piper’s appeal. They found that whilst both agreements could be found to co-exist in the same document, it was clarified that only one agreement would have an operative effect at any given time, therefore, upon marriage the de facto agreement would cease to have an effect.

The Husband and Wife commenced living together and married in 1989. After about 5 years the parties separated in 1994. During the period they were married they had 3 children together. At the time of separation, the children were 4, 3 and 1 years of age. In September 1995 the parties divorced.

At separation, the main property available for the division was the family home with equity of $15,000, furniture worth $10,000 and a car worth $12,000. When the parties separated the Wife took the car. In 1994 the Wife’s solicitor wrote a letter to the husband proposing terms of settlement and arrangements for the children. This letter stipulated that the Wife would take the car and some items of furniture and in return the Wife would transfer her interest in the family home to the Husband. In addition, it stated that the Wife would have sole care (then referred to as custody) of the parties’ children. The Husband did not agree with the care arrangements for the children and settlement did not occur.

The Tribunal found that Mr. Baylden had an annual resource being the terms of a loan of $180,000 per annum tax-free, or $287,000 grossed up. Although the loan agreement may be acceptable to the Commissioner of Taxation, the benefits under the loan have a different treatment for the purposes of child support.

According to the Tribunal, it could not be argued that Mr. Baylden was receiving $15,000 per month under a ‘loan’ contract yet not receiving any wages despite the fact that he was responsible for the operation of the business. Furthermore, evidence from Mr. Baylden that he cannot be paid a salary whilst the business was in its growth stages was unconvincing, especially given that he employed 10 staff and the company turnover was in the vicinity of $2 million per annum.

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 2010 on a temporary visa and lived with the 85-year-old respondent’s, Mr Muir’s, home. On 19 February 2014, both parties purportedly entered into a financial agreement under section 90UC of the Family Law Act 1975 (Cth) that provided that upon the breakdown of the parties’ relationship, all properties shall be divided equally regardless of whose party’s name is on the title of the assets.

The respondent subsequently moved into a nursing home and on 29 May 2014, Ms. Tey issued proceedings to enforce the financial agreement whereby the respondent filed his response by case guardian (his daughter). The respondent argued that he had never been in a de facto relationship at the time of the financial agreement and that he did not have the mental capacity at that time to make the said agreement. As such, he sought an order that the agreement be set aside and the net proceeds of the sale of his home are paid to him.

The Husband and Wife separated and on 23 December 2010, the Wife commenced proceedings for property settlement orders in the FCC.  The parties came to an agreement for the settlement of property by way of consent orders which were made on 26 September 2011.

The parties agreed that their net assets which included a number of parcels of land came to $2,000,000.  Out of this, the Wife would be entitled to 48% being $960,000 and the Husband 52% being $1,040,000.  The Wife was to receive an initial payment of $75,000 from the Husband and the remaining settlement was to be paid to the Wife upon sale of the various parcels of land.  If the land sold for less than expected the Husband was to make up any shortfall so the Wife would receive $960,000.

In late 2011 the Wife passed away and thereafter the property settlement was to be paid to the Wife’s Estate.  The Estate was paid various sums of money but was left short by $245,198.  On 27 October 2013, the Estate started enforcement proceedings against the Husband to recover the outstanding balance.

The Husband opposed the enforcement application on the grounds that he had incurred costs for outgoings relating to the land.  The Husband argued these costs should be split between himself and the Estate.

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 pursuant to the Family Law (Child Abduction Convention) Regulations 1986. At first instance, the mother argued that if her son was returned to Norway, he would be exposed to a great risk of physical harm and psychological harm due to her anxiety and depression which was supported by psychological reports that showed her treatment of depression and suicidal thoughts.

Although McClelland J was satisfied that there was a risk of psychological harm to the child as a result of the mother’s mental illness, he was not satisfied that the risk was sufficiently grave enough to invoke a regulation 16(3)(b) defence to the return of the child and as such, an order to return the child was made.

The Applicant’s child support liability commenced in 1997 at the time of the birth of the Applicant’s son.  The son was in the mother’s care and the Applicant was assessed to pay child support.  In September 2010 the mother contacted the Child Support Agency and asked them to commence collection of child support payments on her behalf.

The Applicant claimed that he was never contacted by the Child Support Agency and was unaware of the requirement to pay child support.  As the Applicant did not lodge tax returns for the financial years 2011, 2012, and 2013 the Child Support Agency under section 58 of the Child Support Actcalculated a deemed income for the administrative assessment based on the Applicant’s last available tax assessment.

Family Law Act 1975 (Cth) (“Act”)

Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”)

Evidence Act 1995 (NSW) (“NSW Evidence Act”)

Evidence Act 1995 (Cth) (“CTH Evidence Act”)