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Family Court of Australia

Murphy & Murphy [2007]FamCA795 (20 July 2007)

This was a parenting matter in which the Father was the Applicant. He sought parenting orders for equal shared parental responsibility and equal parenting time.

The Respondent Mother made allegations of sexual abuse and sought that the Father have supervised contact only with the children.

Evans & Company Family Lawyers acted on behalf of the Applicant Father.

The Court considered reports from 2 family report writers and a psychiatrist which recommended that the Father spend increased time with the children.

The Court found that:

The evidence was not sufficient to support a positive finding of past sexual abuse by the Father of the children.
The Court could not rule out absolutely past sexual abuse of one of the children although the risk was assessed as low. There was no assessed risk in respect of the other child.
A gradual re-introduction of unsupervised time was ordered.

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Juliet & Juliet (No.2)[2011]FamCA250(11 April 2011)

In this matter the Applicant Wife sought to join a Third Party to the proceedings. Evans & Company Family Lawyers acted on behalf of the Respondent Husband. The Third Party was a company of which the Husband was a shareholder.

The Third Party company was joined to the proceedings. The Court made Orders binding the Third Party in respect to the sale regime for a valuable parcel of land.

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Michaelson & Michaelson [2017] FamCA 174 (23 March 2017)

This case dealt with the difficult issue of relocation overseas by the Mother and children.

The Applicant in this case was the Mother. The Family Court was asked to determine whether the children should:

Spend time with the Father; and
Whether children should be at liberty to relocate with the Mother to the United Kingdom.
Evans & Company Family Lawyers acted on behalf of the Mother.

The parties married in 1995 and separated in 2015.  The Mother was a dual Australian and UK citizen.  The Father was an Australian citizen.  The parties had resided in Australia since 2001.  The parties were parents to two children born in 2000 and 2006.

The Father had experienced a number of issues in his employment as a health professional and his registration had been suspended over various periods.

Prior to separation the children had a reasonably good relationship with the Father.   Following separation, the children had refused to spend time with the Father.

The Court ordered that a Family Report be prepared. The children refused to meet with the Father.

The Court considered Part VII of the Family Law Act 1975 (Cth) which sets out the objects, principles and matters which must be considered in a parenting matter.

It was the Father’s case that the Mother had provided misinformation to the children causing them to turn against him. The Mother’s case was that the children had been adversely affected by the Father’s behaviour following separation and did not wish to spend time with him.

The Court found that whilst many facts were in dispute, the evidence was overwhelmingly that the children did not wish to spend time with their Father.

At paragraph 51 of the Judgment, Her Honour Justice Carew noted “what is striking about the Father’s case is the absence of any reflection or contrition for any behaviour that may have lead the children to form the very rigid view they currently have”.

Orders were made that the Mother have sole parental responsibility for the children and that the Father spend time with the children at such times as agreed between the Father and the children.  Further, it was ordered that the Mother be at liberty to relocate the permanent residence of the children from Australia to the United Kingdom.

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Matech & Matech (No 2) [2018] FamCA 1029 (7 December 2018)

The issue in this interim property matter was whether the Family Court of Australia had jurisdiction regarding a Binding Financial Agreement given the Husband's bankruptcy.

In this interim property matter, Evans & Company Family Lawyers acted on behalf of the Applicant Wife.

An application was made by the Wife for enforcement of a Financial Agreement entered between the parties in July 2005.

Orders had earlier been made in the Husband’s absence as he was overseas at the time and unrepresented.

The Husband then filed an Application in a Case seeking a stay of the Orders pending a determination as to whether the Court had jurisdiction as he had been bankrupt during the relationship. The Husband contended that the Court did not have jurisdiction given that some years after the Financial Agreement was entered, but whilst the parties were in an intact marriage, the Husband became bankrupt.

The Financial Agreement was entered in July 2005. The Husband became bankrupt in November 2012. He was discharged from bankruptcy in November 2015 – some two years prior to separation in December 2017.

The parties were married for some 12 years.

Did the Financial Agreement remain valid despite the Husband's bankruptcy?

The Financial Agreement imposed an obligation upon the Husband to pay money to the Wife. The Husband’s argument was that this obligation gave rise to a debt provable in the bankruptcy pursuant to Section 82 of the Bankruptcy Act 1966 (Cth). The Husband's position was that he was not obliged to comply with his obligations given his past bankruptcy.

The Court described the submissions made by the Husband’s Counsel as “creative and forceful”. The Court noted however, as at the date of bankruptcy, the parties were in an intact relationship and the Wife’s rights pursuant to the Financial Agreement were contingent upon separation or divorce occurring.

The capacity to enforce the Financial Agreement only arose post separation and after a separation declaration as required by Section 90DA of the Family Law Act 1975.

The Family Court was persuaded by the arguments made by Evans & Company Family Lawyers for the Wife that Section 90DA’s proper meaning and effect is that a Financial Agreement has no force until separation and the Financial Agreement remains in place during the Husband’s bankruptcy. As a consequence, the provisions of the Bankruptcy Act did not operate.

There is no provision in the Family Law Act providing that a Binding Financial Agreement is terminated by bankruptcy.

The Wife was then able to pursue her rights pursuant to the Financial Agreement.

Becker& Vale [2018] FamCA 1074 (9 November 2018)

This interim property matter concerned a family company and the preservation of funds and who should be appointed as a director of the company controlling the family business.

Evans & Company Family Lawyers acted on behalf of the Applicant Wife.

The parties to these proceedings had been in a defacto relationship for nearly 20 years. Separation occurred in 2015.

The Wife was 62 years of age and the Husband 76.

The Wife commenced an application in the Federal Circuit Court of Australia in January 2016 and the matter was transferred to the Family Court of Australia in July 2017.

The Wife alleged the Husband had breached freezing Orders made in January 2016 and sought Orders to remedy the breach.

The Husband opposed.

A Consent Order had been made between the parties in January 2016 regulating the action of the Husband as a director of the company operating the family business. The Husband was required to provide regular reporting of the company’s operation to the Wife.

The Husband sold a commercial property without notice to the Wife.

The Husband stated that he did not believe he was in breach of his undertaking or the interim Order. The Court expressed concerns about accepting his explanation. The Court did not accept that such a transaction was in the ordinary course of business.

The Wife’s position was that the Husband had been operating in a “clandestine way” and “nothing other than clear deceit and defiance of the Orders”.

The Wife sought that the Husband be removed as a director and she be appointed, or that she be appointed as a second director or that a receiver be appointed to the business. The Husband stated that he had misunderstood his undertaking and that his actions in selling the commercial property “were in the interest of the trust and/or the company” and no breach of the director’s duties had been demonstrated.

The Court found that the evidence was that the Husband’s continued operation of the business was not deficient. The Wife had ceased to be a director some years ago and the benefits of introducing her back to the business now has not been demonstrated. Her lack of involvement in recent times could cause some operational difficulties. Appointing her as an additional director to “keep an eye” on the Husband was impracticable.

The Court refused to make Orders appointing the Wife as a director. The Husband was however was Ordered to pay an amount of $217,475.29 to the trust account of the Wife’s solicitors.

S & S [2005]FamCA1195 (17 November 2005)

The Applicant Wife was seeking:

A 50 / 50 division of property; and
Spousal maintenance of $500 per week indefinitely.
Evans & Company Family Lawyers acted on behalf of the Respondent Husband.

There were 2 children born to the marriage. The Wife came to the relationship with 2 young children. The Husband had significant assets at the start of the relationship. The available pool of property at the time of trial was valued at approximately $2million.

The Court held that the Wife’s contributions should be assessed at 20% of the pool.

The Wife received an additional 7.5% by way of a section 75(2) adjustment. This adjustment was to take into account that although the Husband had 40% care of the children, the Wife would still have the primary role of caring for the children. The adjustment also took into consideration the difference in the parties’ earning capacities.

The Wife received an overall award of 27.5% of the net pool which equated to approximately $550,000. The Husband retained approximately $1,450,000. An order was made that the Wife receive spousal maintenance from the Husband for a period of 2 years at $500 per week. The Court was of the view that as the youngest child would commence school in 18 months, this period of 2 years gave the Wife sufficient time to reenter the labour market.

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Federal Magistrates Court of Australia

P & B [2000]FMCAfam21 (29 August 2000)

This was an Application by the Father that a Child Support Agreement entered by the parties dated 25 July 1998 be varied so that the obligation to pay child support pursuant to the Agreement be discharged.

The Father’s Application was based on a reduction in his income.

Evans & Company Family Lawyers acted on behalf of the Father.

An Order was made that the Child Support Agreement between the Father and the Mother be discharged.

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Sandes & Sandes [2012]FMCAfam692 (13 July 2012)

This matter was a property matter. The Court gave consideration as to what should be notionally “added back” to the pool. Evans & Company Family Lawyers acted on behalf of the Applicant Wife.

The parties had been in a long relationship – 25 years.

The Wife sought orders that would give her 65% of the net pool of assets and liabilities. The Husband sought an outcome of a 52% / 48% split in the Wife’s favour.

There was 1 child of the relationship, aged 15 at the time of hearing. Both parties were in good health.

The Wife was employed part-time and the primary caregiver to the parties’ child. The Husband was self-employed.

The Court Ordered that legal fees paid by the Husband from monies in existence at the time of separation be added back to the pool.

The Wife’s contributions were assessed as 51% and she was awarded an additional 12.5% in respect of future needs. Overall the wife retained 63.5% of the pool.

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Coulter & Coulter [2008]FMCAfam1348(13 October 2008)

The Applicant Husband brought an Application seeking Orders on an interim basis that the Respondent Wife be restrained from involving the parties’ children in her practice of the Jehovah’s Witness faith.

Evans & Company Family Lawyers acted on behalf of the Husband.

Orders were made by the Court on an interim basis that the Husband and Wife have joint parental responsibility, except in respect to the issue of religion.

The Applicant Husband was granted sole parental responsibility in respect to the issue of religion for the children.

An Order was made restraining and an injunction granted against the Wife preventing her from involving the children in any way with the Jehovah’s Witness faith.

An Order was made that the children live with each of the parties on a week on week off basis.

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Nettle & Nettle [2011] FMCAfam414 (20 April 2011)

The Applicant Wife brought an Application seeking Orders that the Respondent Husband’s solicitor be restrained from acting for the Husband due to a conflict of interest.

Evans & Company Family Lawyers acted on behalf of the Applicant Wife.

The Husband’s solicitor had acted for him in respect of his prior family law matter and had discussed various issues with the Husband and Wife in respect to combining their assets and potential disputes with the Husband’s parents.

The Court referred to the decision of McMillan [2000] FamCA 1046 that:

“The broader approach is to be preferred namely that a restraint can be justified where only a theoretical risk of misuse of the confidential information is shown to exist”.

It was held that there were particular sensitivities in family law litigation and litigants should be starting from an equal position. The Husband was placed in a superior position potentially because of the Husband solicitor’s previous dealings with both parties.

The Court made an Order that the solicitor for the Husband and his firm be restrained from acting for the Husband.

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GI & TI [2007]FMCAfam 302 (17 May 2007)

This matter concerned an Applicant Father seeking interim Orders that a child be returned to Queensland from Victoria when the child had been unilaterally relocated by the Respondent Mother.

Evans & Company Family Lawyers acted for the Applicant Father.

An Order was made that the child be returned to Queensland. The Respondent Mother sought an Order that the proceedings be transferred to Victoria. Her Application was refused.

The Respondent Mother sought an interim property settlement be paid to her by was of a cash sum. The Application was refused.

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Hammond & Mullen [2010]FMCAfam943 (5 August 2010)

This matter dealt with a short relationship of 5 years. The relationship did not produce any children. The Respondent Wife’s initial contribution was significantly greater than that of the Applicant Husband’s. Evans & Company acted on behalf of the Wife.

Despite conflicting evidence from the Husband, the Court assessed the Husband’s initial contribution as being in the amount of approximately $10,000.

The Court assessed the Wife’s initial contribution as being in the amount of approximately $252,000. Initial contributions were assessed at 4% for the Husband and 96% for the Wife. The Wife’s earnings equated to approximately 70% of the parties’ joint earnings during the relationship.

The pool at trial was assessed as having a value of $550,000. The Court ordered that the Husband retain 30% of the pool and the Wife 70%.

No adjustment was made in favour of the Husband due to the Wife’s greater earning capacity. The Court held that each of the parties came to the relationship already in their chosen careers. Further, the Court held that the Husband did have the potential to earn a greater income but it was up to him as to whether he chose to exercise this potential.

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Peters & Peters [2011]FMCAfam323 (11 April 2011)

This matter concerned an Application for enforcement of final property orders, namely in respect to funds held in a solicitor’s trust account and the issue of costs.

Evans & Company Family Lawyers acted on behalf of the Applicant Husband.

A final hearing had been heard and Orders made in July 2010. The parties had not been able to agree on the interpretation of the Orders and the distribution of the marital pool under the property Orders had not been effected.

It was Ordered that the Respondent Wife receive an amount of $177,857.91 from the solicitor’s trust account and that she pay the Husband’s costs of the Application.

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