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Assist Client in Winning a Full Court of Family Court Appeal
Recently Chess helped a self-represented husband win an appeal in the Full Court of the Family Court of Australia in relation to the parties' assets. The Full Court set aside the primary judge's orders and ordered a re-hearing. As a result of the success, the pool of the assets will be substantially reduced.
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2020/142.html
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2020/85.html
Win an Administrative Appeal Tribunal Review
Chess acted as Counsel in an Administrative Appeal Tribunal Review case and won.
Win a District Court Appeal
Chess acted as Counsel in a District Court appeal case for a client, and won the appeal.
Rectification of A BFA
Recently the Full Court heard an appeal from the husband to set aside order made to rectify a binding financial agreement to give effect to the party’s intention.
The original document prepared by the wife’s solicitor had defects including not mentioning the agreement made under s90B and referring to a Victoria’s court as the Court of jurisdiction.
The Full Court dismissed the husband’s appeal with costs. The Court said, “Since the Agreement could not possibly be a financial agreement within the meaning of the Act without its express reference to s 90B (ss 4(1), 90B(1)(b)), the Agreement’s rectification to reflect the parties’ common intention could only be achieved by an order in terms of Order 1 made by the primary judge. Hence, the validity of the order."
7 Year Out Of Time
The Full Court recently heard at former de facto husband’s appeal against leave granted to his former de facto partner to apply for property orders seven years out of time. They cohabited in 2001 and separated in 2009. There was no child from the relationship. In 2013 the de facto partner re-partnered. In January 2018, she filed an application for property settlement.
The Full Court said, “it is fundamental to such a determination that consideration is given to whether an applicant for leave demonstrates a prima facie or arguable case of substance having regard to all the circumstances of the case, taking into account the likely cost to be incurred by the applicant in pursuing the claim. Here, as will be discussed, the trial judge did not undertake that consideration. The trial judge focussed upon the applicant’s evidence as to her current financial circumstances, and relied upon that evidence, without undertaking the fundamental consideration to which we have referred, in making a finding of hardship.”
Time Is Of Essence
In a recent Full Court case, the late husband's legal representative appealed to a judge's decision to treat the wife's property application filed electronically at 7.40pm (the husband died 11pm) as filed on that day, not after death, pursuant to family law rules 24.05(2).
The Appeal Court allowed the appeal and said "This is, in our opinion, sufficient to dispose of the respondent’s argument that the electronic receipt was sufficient to invoke the jurisdiction. The jurisdiction could only be invoked in accordance with the rules of the Court; that is, when instituted according to the Rules. It was not suggested that the Rules were inconsistent with any statutory provisions. It follows that the Rules could not then be employed to give the Court jurisdiction which was otherwise lacking."
Jurisdictions - Forum Non Conveniens
Recently the appeal court allowed the wife's appeal from a divorce order made in Australia.
The husband is an Australian citizen and married an Indian woman under the Indian law in August 2013. They separated in December 2013. The wife brought legal proceedings in India.
The husband applied for divorce in Australia in March 2017. The wife applied for an injunction in India Family Court in April 2017 restraining him from continuing his divorce application in Australia. In May 2017, the Australian Court made the divorce order. In later May 2017, the Indian Court made the injunction order. The wife applied for the review of the grant of the divorce order. It was reaffirmed. The wife appealed to the Full Court.
The Full Court said "... judge did not have proper regard to the effect of her orders upon the wife, who would not be divorced in India."
Judge Avoided Determining Issues Presented by the Parties at the Interim Hearing
In this case, the appeal court allowed a self-represented father's appeal against the dismissal of his interim application by a judge relating to children aged 16, 13 and 11.
The Court said, "He is correct that there is no order for parental responsibility but the consequence of that is that each of the father and mother have parental responsibility for their children. That position has not been altered save that aspects of parental responsibility the subject of specific legislative provision (who the children shall “live with” and with whom they shall spend time) have been made."
"Her Honour raised with the father his assertion that the children did not want to go on periods of time with him and proceeds to pose the “impasse” or central dilemma earlier referred to. That central dilemma was referenced to the allegations of both parties. Her Honour made no finding or suggestion as to which allegation might be preferred as to the root cause of it. Her Honour’s conclusion was that a trial should occur."
Husband's Initial Contribution of Land Soared in Value
In a recently Federal Circuit Court case, the Judge heard a financial settlement due to marriage breakdown.
The parties married 25 years and had 3 children. The husband bought parcels of land from his father for $26,000 in 1975 ... The value of the land increased to over $10 million in 2017 due to rezoning.
The Judge said, "This contribution however, must be weighed against the myriad of contributions made by both parties throughout the course of their relationship which has spanned 27 years and resulted in three adult children. It also has to be weighed against the fact that this was a union in which the parties clearly, by their actions, shared in the vicissitudes of the relationship, much of which is demonstrated by the numerous businesses and business ventures which the parties undertook throughout their relationship."
The Judge ordered 64:36 division in the Husband's favour.
Unit Trust Controlled by Husband Owned by 99 Year Old Father Not a Property of the Husband
The Full Court dismissed an appeal against the trial judge's decision to exclude units of a unit trust which were controlled by the husband although his 99 year old father was sole unit holder.
The shares of the corporate trustee were owned by the father (67%) and husband (33%). The director of the trustee was a solicitor who acted on the husband's instructions.
The trial judge found that the husband controlled the trust, but that the units were not property of the husband but a financial resource.
The trial judge said, "... the trustee does not have ultimate control over the vesting of trust property..."
De Facto or Non-De Facto
Recently the Full Court of the Family Court Australia made an interest decision on de facto relationship.
Mr C and Ms B had a child in 2003. They lived apart under one roof since 2004, never acquired any joint assets or operated any joint bank account.
The presiding judge declared that there existed a de facto relationship while Mr C lived in Ms B's home from 2001 to 2014.
Mr C appealed to the Full Court.
The Full Court said, "... Shorn of the gloss of “presenting as a couple”, it is clear that the primary judge found that between 2002 and 2013 the parties attended many social and family events and school functions with the child. These events included family Christmases and birthdays, which were celebrated at the home of the parties as well as the homes of other relatives. The parties regularly visited the respondent’s sister (almost weekly) over the summer months.
They attended other family events sometimes every two days and at other times less frequently but still regularly ... This was significant evidence of the public aspects of the parties’ relationship and supported a finding that there was a de facto relationship. If the appellant wished to contend that the parties’ conduct at those events led to a different conclusion then it was incumbent on him to adduce evidence to support that proposition."
Make it simple: something looking like a duck, walking like a duck and quacking like a duck, is it a "duck"?
You Got to Be Serious
In a recent Family Court case, the wife married overseas in 2015 but moved to Australia on a student visa in 2016.
She then filed divorce an application, but due to service difficulties, the divorce was not granted until late 2017. In the meantime, the wife married another man in mid-2017.
Judge Berman said, "... the conduct of the wife and the husband to be blatant in order to undergo a marriage ceremony in circumstances where they knew it was not permissible to do so." He referred the matter to the relevant authority for prosecution.
Husband's Tax and Gambling Debts in Family Law Settlement
In a recent Family Court case, Justice Watts considered a 21year marriage that produced 3 children and a net pool of $1.28m excluding tax debts. The husband owed the ATO over $2 million and the wife owed the ATO over $100k. It created a total net deficit of over $800k.
... in short, the Court decided that the wife is liable for 10% of the husband's debt not what the ATO had sought ...
This is an interesting case.
PPSR Registration – A valuable lesson - ABN v ACN
The Supreme Court of NSW in January 2017 handed down a case in relation to the PPSR registration - which is, in my view, "amazing". In this case, the secured creditor had registered security interests over goods supplied or to be supplied to OneSteel using OneSteel’s ABN as opposed to its ACN.
The Court found that the goods (the subject of the security interests and the registrations), had vested in OneSteel when the business was placed into voluntary administration.
Therefore, the "secured" creditor became an unsecured creditor.
What should you do if you have a blended family and you want to care for all of your children?
In the legal community, the Stanford case is very well known. It had a sad ending.
The case was originated in the Family Court of Western Australia and ended up in the High Court of Australia.
The husband and wife married in 1971. It was the second marriage for each. Both had children by his or her first marriage. The property in question was the matrimonial home they lived for 37 years, registered under the husband’s name. The house was bought by the husband with his first wife and transferred to him after the end of that marriage.
In 1995, the husband made a will in which he left the house, subject to a life tenancy in favour of his wife, to the children of his first marriage. In 2005, the wife made a will leaving her estate to the children of her first marriage.
In 2008, the wife suffered a stroke. She was admitted into full-time residential care and never returned to live with the husband.
In 2009, the wife’s daughter from first marriage applied to the Family Court of WA for orders (among other others) that the house be sold and the net proceeds be divided equally between the parties. The Family Court of WA determined the assets be distributed 57.5/42.5 in the husband’s favour.
The husband appealed to the Full Court. The Full Court concluded that the Magistrate had erred in a number of respects ... in spite of that, the Full Court ordered that, on the husband's death, the sum (42.5% fixed by the Magistrate) of the marital property be paid to the wife's legal personal representatives.
Then the husband appealed to the High Court … he won. The High Court said it was not just and equitable to make a property order.
It was a sad family law case. Not only did the wife’s children not receive any interests from the pool of the parties’ assets but also incurred substantial fees.
What should have been done to avoid such a result?
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