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    • Family law
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  • THE LEAGLE BLOG
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THE LEGAL EAGLE - LAW MADE EASY
Family Law, THE LEAGLE BLOG

POSTING ABOUT COURT CAN SEND YOU TO JAIL

Thinking about posting about your Family Court Proceedings on the web?
This includes Facebook, Twitter, Instagram and any other social media platform out there on that big old wild frontier known as the internet.
A place where these days misplaced “courage” and anger seems to know no bounds.

Section 121 of the Family Law Act prohibits the publication of details relating to Family Court Proceedings where that publication identifies the parties or other details set out below.

Consequences for breaching Section 121 of the Family Law Act can include a term of imprisonment and you don’y want to end up there by being a “keyboard warrior”.
Section 121 (1) of the Family Law Act 1975 states that:-

A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means (think social media) , or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:-

  • A party to the proceedings;
  • A person who is related to, or associated with, a party to the proceedings, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
  • A witness in the proceedings;

commits an offence punishable, upon conviction, by imprisonment for a period not exceeding one year.

The above makes it very important for anyone thinking of posting something about their Family Court Proceedings or just having a rant, to seriously think carefully about what they are posting before doing it.

The message here is clear, just remember that whilst being involved in Family Court Proceedings can, more often than not, be very stressful and at times frustrating, the likes of Facebook and other social media platforms are not the place to air those frustrations and or your anger at the system.

Don’t forget to check out all the great family law resources we have online at The Legal Eagle and if you need some low cost assistance with preparing for court we would be more than happy to help!
Drop our fab paralegal a line and we’ll wash those worries away:

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Family Law, THE LEAGLE BLOG

2019 COURT UPDATES – FAMILY LAW PROPERTY

IT’S BEEN A BIG YEAR FOR PROPERTY!

2019 brought with it a range of NEW perspectives on property matters in the Federal Circuit Court. Simply reading the Family Law Act doesn’t give a crystal clear picture of how the court perceives a property issue that it has to rule on. Cases are unique and have variables and circumstances where Judges use the legislation as a base but then make what are called ‘common law’ decisions. In other words, these are decisions based on a judge’s reading of the Family Law Act (or any other relevant legislation) PLUS that Judge taking into consideration the unique circumstances of the matter before the court.

Sometimes judges in landmark cases or appeal proceedings make decisions which change the way a law can be interpreted or viewed. These are called decisions of precedence and once such a decision is made with that level of authority, it becomes the basis for how future decisions in a particular area of family law are made until the next decision of precedence overtakes it. The common law is constantly evolving while the legislation changes at a slower pace until it it changed by the parliament.

Let’s turn it over to our trusty court stickybeak Elroy the Eagle to update you all on some interesting decisions relating to property and spousal maintenance in the Federal Circuit and Family Courts from June till December in 2019.

Eaglets! 
Firstly let me wish you all a feather-full 2020 and may you start the year soaring high with a tremendous squawk.
Ok… enough of the bird humour 😉
2019 had some interesting and unusual moments for the court as they were presented with the usual challenging matters to adjudicate over. Frazzled Judges are thinking of bringing back wigs to compensate for all the lost hair pulled out in dealing with matters regarding property and money.
After all, money does make the world go round.

June 2019


WHERE FAMILY VIOLENCE AFFECTS A PARTIES SCOPE TO CONTRIBUTE

Court did not err in relying on family violence findings in earlier parenting decision in support of a Kennon contribution weighting, where the husband did not object at trial and where there was an abundance of other evidence of violent conduct of the husband
Remember Eaglets, to successfully raise a Kennon argument, the Court must be satisfied that: there was a course of violent conduct by one party towards the other which occurred during the marriage or relationship; and. this conduct had a significantly adverse or negative impact on the party’s contributions to the marriage.

EXPERT EVIDENCE ON PRIZED BOOK COLLECTION INADMISSIBLE

Property – Valuation – Affidavit of bookseller adduced by husband to value his book collection held inadmissible as expert evidence – Affidavit of wife’s alleged expert who was unavailable for cross-examination was inadmissible too – Order made for sale of books.

DENTAL BILLS AND SPOUSAL MAINTENANCE

Spousal maintenance – Urgent lump sum maintenance granted for wife’s urgent periodontal and dental work for which she was being pursued for payment – Section 75(3) (as to disregarding pension) not relevant – Periodic maintenance application adjourned for interim hearing.

July 2019

PROPERTY AND A LONG MARRIAGE – REZONE INCREASES VALUE

Husband’s initial contribution of land soared in value due to rezoning – Judge erred in assessing contributions – Increase in value was “unrelated to the efforts of the parties” – Williams [2007] FamCA 313 “somewhat overstated” importance of an increase in value of an initial contribution, at the expense of all contributions by the parties throughout their relationship.

SHORT AND SWEET RELATIONSHIP …AND PROPERTY

Property – Short childless cohabitation – Initial contribution of entire small pool – Judge’s crediting of interim maintenance payments to appellant against her property settlement (resulting in no settlement being payable) was in error – Contributions reassessed at 90:10 – No adjustment under s 90SF(3).

August 2019

TRANSFERRING PROPERTY TO RELATIVES

Property – Wife fails to prove that a property the husband transferred to his sister and brother-in-law shortly before the parties’ marriage was held on trust for the husband – Court accepts evidence of husband and transferees that the transfer was for good consideration.

PROPERTY – SOLE USE OF THE BEACH HOUSE

Property – Sole use and occupation – Application by husband for sole occupancy of a “currently vacant” beach house occasionally used by his estranged children dismissed – Applicant financially able to rent alternative accommodation but did not want to do so.
No sand between that fellow’s toes I’m afraid!

PROPERTY AND CRAZY INVESTMENT LOSSES BY SPOUSE IN LONG MARRIAGE

Property – 45 year marriage – Elderly parties – Wife’s $1 million mid-marriage inheritance – Pool of $1.74 million included $360,000 notionally added back for wife’s reckless investment losses (not considered under s 75(2)(o) as the waste was identifiable) – Proceeds of life insurance policies paid to husband’s estate added back too – Contributions assessed at 65:35 in wife’s favour.

September 2019

CHALLENGED VALUATION

Property – Valuation by single expert appointed by parties was disputed by wife – Wife was refused leave to rely on shadow expert’s report (her instructions to whom were tainted) – Wife failed to use shadow expert to guide her questioning of the single expert, instead seeking to call him as an adversarial expert.

HUSBAND WITH NO WILL

Property – Husband died intestate (no will) – Wife appointed both as legal personal representative by Supreme Court of NSW and legal personal representative of husband’s estate by the FCC pursuant to s 79(8)(a) of the Act and FLR 6.15.

WHEN YOU DON’T CONTRIBUTE MUCH

Property – Small pool – Wife was of low intellect and contributed very little – Contributions assessed as 75:25 in favour of husband – Finding that wife would never be able to work – Adjustment of 25 per cent in her favour under s 75(2).

October 2019

QUICK SALES AREN’T FAIR

Property – Court erred in dismissing husband’s application for injunction against wife, where parties’ daughter had told him of imminent sale – Injunctions made pending determination of husband’s s 79A application.

PRE-MARITAL PROPERTY

Property – Husband granted sole occupancy of his pre-marital property – Conflict between elderly parties – Wife had ready access to alternative accommodation – Husband’s financial support of her was to continue – Wife also ordered to remove her caveat.

VALUING OVERSEAS PROPERTY

Property – Real estate agent husband’s evidence as to the value of a jointly owned property in China was inadmissible pursuant to s 76 of the Evidence Act (the opinion rule) – Such evidence did not constitute an admission (adverse to his interest in the case) within the meaning of s 81 of that Act to which weight could have been given.

LATE SPOUSAL MAINTENANCE APPLICATION? – NO WORRIES!

In Blevins [2019] FCCA 1923 (11 July 2019) Judge Baker heard an Initiating Application filed in March 2019 for spousal maintenance of $400 per week, filed 23 years after the parties separated and 21 years after their divorce. The parties were 69 and 71. A final order for maintenance had been made in 1999, requiring the husband to pay $750 per month until 8 July 2009 … In 2009 a further final order was made for lump sum maintenance of $275,000.

November 2019

BIG INITIAL CONTRIBUTION AND PROPERTY SPLITS (9 YEAR MARRIAGE)

Property – No error in 80:20 contribution assessment to reflect husband’s initial contribution of $4.97 million (and wife’s $500,000) of a $12.5 million pool –
A nine year cohabitation here eaglets.

SHORT DE FACTO RELATIONSHIP NEEDS INJUSTICE

Property – De facto threshold – Applicant partner for less than 2 years found to have made “substantial contributions” by assisting with renovations but fails to establish “serious injustice” if the order sought were not made.

December 2019

PROPERTY RISES AND SPLITS

Property – Rise in value of property resumed by government treated as windfall for both parties – Trial judge erred by equating periods of separation to the ending of the de facto relationship for the purpose of assessing contributions –Contributions continued during the many separations.

INHERITANCE AND SPOUSAL MAINTENANCE

Spousal maintenance – Applicant wife had inherited $1.6m in 2009, partly spent on property purchases – $520,00 retained in cash, term deposits and shares – While an applicant need not exhaust all capital so as to satisfy s 90SE(1) thresholds, the property of this applicant was such that she was able to support herself – Application for interim maintenance dismissed.

DIVORCE IN DUBAI NOT CONTESTED

Property – Wife’s application for property and spousal maintenance orders permanently stayed on appeal where she had failed to contest divorce proceedings in Dubai (in which she could have applied for property settlement and alimony) – Res judicata can arise notwithstanding differences between laws.

SPOUSAL MAINTENANCE RELEASE…DENIED!

Financial agreements – Clause purporting to release husband from future spousal maintenance held to be void as it did not specify the amount provided for maintenance as required by s 90E of the Family Law Act.

INHERITED PROPERTIES

Property – Court erred by failing to hear and determine wife’s application for declaration as to her one-half equitable interest in family home which husband inherited from his father after trial but before judgment – Further error where inadequate weight given to wife’s contributions.

And there it is folks.

So keep in mind Eaglets that every case before the court is different and the law can only guide the judge particularly if your matter has some complexity or untried element to it.

See you soon with more updates from the court battlegrounds and don’t forget that crack team at the Legal Eagle are always happy to assist self-representers with court preparation and low cost document drafting from applications to affidavits.

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Family Law, THE LEAGLE BLOG

ELROY’S COURT REPORT – 2019 PARENTING

2019 FAMILY COURT HIGHLIGHTS – PARENTING

Each year the Federal Circuit Court and the Family Court of Australia express opinions and even change their minds on how key decisions are made about family law issues before the court. How the Judges interpret the Family Law Act with these new or changes positions is called “common law” and it can be just as powerful as the legislation.

 Our resident legal eagle Elroy has been attending courts all over the country (no airfares needed as he already has wings) to bring you this update on some of the major decisions relating to children this year. In our follow up he report on major decisions relating to property and spousal maintenance.
Over to you Elroy…

Hey Eaglets, here are the big things in Fed circuit and Family court that the Judges made decisions that broke new ground in 2019.
 Now listen I had to sit through hours of court boredom without one squawk to get these little gems so I hopes ya enjoy them!
Off we go…


JUNE 2019

Taking time to make the best decision!
Court grants adjournment of trial for 12 months to permit assessment of children’s time with father away from “artificial environment” of contact centre –
Judge Harman considered an application by the parents of children of 7 and 4 years (supported by the ICL) to adjourn a two day trial and make interim, instead of final parenting orders, despite the fact that the case had been before the Court for three years.
 As I say – finality is good but justice is better!

JULY 2019

When you ain’t daddy
Husband discovered that he was not child’s biological father after separation when child was 13 months of age – His “friendly relationship” (which child enjoyed) allowed to continue despite mother’s strong opposition – Order for husband to spend four hours with the child every six weeks.
Now that’s a dad with commitment!

Overseas travel
Suspension of interim injunction against overseas travel and of watch list order was erroneous as the parties’ subsequent final consent order had the effect of discharging all interim orders – Leave to travel overseas would require fresh proceedings as consent order was silent as to overseas travel

AUGUST 2019
Camera Recordings
Mother’s secretly taken video recordings of interaction with father at hand overs were admissible as mother had a lawful interest in her personal safety – Her secretly taken audio recordings of private conversations between father and the children held to be inadmissible

In Coulter & Coulter, Judge Heffernan heard the father’s application to exclude video recordings made secretly by the mother of his attendance at her home for hand overs and two audio recordings of conversations between him and the children, taken via a KIK messenger app on the children’s iPods. 
Threshold hearing on Rice & Asplund – Mother’s evidence of improvement in her mental health failed to justify reconsideration of a parenting order which had turned not on whether or not the mother had a mental illness, but on a finding that her fixed beliefs posed a risk of harm to the child.

When granny is crook

Interim order permitting relocation with children from Melbourne to Sydney to enable mother to be with terminally ill maternal grandmother.

SEPTEMBER 2019
Paying child support…from when?
Declaration of paternity under s 106A of the Child Support (Assessment) Act granted to mother four years after refusal of her application for child support assessment – Judged erred by leaving commencement of liability to the child support registrar – Act provides that such a declaration operates retrospectively to when the assessment application was made

In Calafiore & Netia the Full Court (Judges Kent, Tree & Hogan) considered a case where the parties’ only child was born after separation. The mother had lodged an application for child support assessment in May 2013 but the father was not named on the birth certificate. He disputed paternity so the child support registrar refused the mother’s application.

Watch lists
Judge erred by restraining international travel and placing children’s names on airport watch list without considering relevant matters as set out by the Full Court in Line & Line [1996].

OCTOBER 2019
Relocation without consent?

Unilateral relocation of mother to a town 2 and a half hours’ drive away – Review of registrar’s refusal to exempt father’s filing of a family dispute resolution certificate on the ground of urgency – No evidence of a genuine attempt to resolve dispute – Discussion of when a unilateral relocation is “urgent” for the purpose of s 60I(9).

NOVEMBER 2019
Daddy didn’t get a 60i certificate – oops!
Father applied for parenting order without complying with s 60I (family dispute resolution) – No exception applicable under subsection (9) – On appeal by mother the FCC’s orders including order for parties to attend conference with family consultant pursuant to s 11F were set aside – Father’s application dismissed

In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the mother’s appeal from orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). In her response, the mother applied for dismissal of application as s 60I had not been complied with, arguing that the Court lacked jurisdiction.`

Fighting limited supervised time
Father diagnosed with delusional disorder by court-appointed single expert – Leave granted for father to adduce evidence from adversarial expert – Father’s wish to adduce other expert evidence to counter evidence that would otherwise lead to his having limited supervised time or no time with the children amounted to a “special reason” for leave pursuant to FLR 15.49(2)(c)

DECEMBER 2019
A history of parental conflict
Father’s contravention application was met by mother’s application for variation of parenting order – Adjournment of contravention application for 16 weeks – “Widely held view” that contravention applications must be heard before any other proceedings has not applied since introduction of Division 13A of Part VII –
Best interests of children paramount – and don’t we know it!

In Maddax & Danner [2019] Judge Murphy J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the father’s appeal against Judge Turner’s adjournment of his contravention application where a family report was ordered in respect of the parties’ child now aged nine, the mother having cross-applied for variation of a parenting order made in 2016.

So that’s a wrap for parenting eaglets.
I’ll be feathering my nest and serving up the highlights of the property fights next week but till then this eagle has landed!

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POSTING ABOUT COURT CAN SEND YOU TO JAIL

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