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SIGNIFICANT JUDGMENTS Part 5
On appeal, the mother made an application to adduce further evidence, being the
agreement with the contact centre which ‘vests total management of control of the
actual physical contact handover process in the contact centre and the appellant was
effectively not allowed to have any involvement in the actual handover process’. She
submitted firstly, she did ‘everything that she could and was allowed to do to assist
in contact occurring’ and secondly, that the decision not to proceed with contact
handover ‘was one made by staff at the contact handover centre... in line with the
agreement signed by the parties’.
Held: Appeal allowed. Remitted for retrial.
1. The further evidence of the agreement with the contact centre, sought to be
adduced by the mother, was not allowed. This was evidence available to the mother
at the time of the trial and therefore could not be raised on appeal.
2. The mother’s ‘submissions raised, inferentially if not expressly, the question of the
mother’s belief as to her obligations under the contact orders’. This was relevant to
s 70NE(1A) of the Family Law Act 1975, which was not addressed by the trial Judge.
That is, if it were found the mother did not understand her obligations in relation to
the contact orders, this would have constituted a reasonable excuse.
3. During the trial ‘the question of the mother’s understanding of the obligations
imposed upon her by the orders was alive, though her own legal representative
slipped away from the point and focussed upon the reasonableness of attempts to
comply with obligations rather than a misunderstanding of obligations. However,
we do not consider that that progression amounted to an abandonment of such
defences as were available to the mother.’
Property — Informal agreement made post-separation without full and frank
disclosure — Whether wife estopped from property proceedings — Substantial
period between separation and property proceedings — Post-separation liabilities
— Whether alleged liability should be excluded — Presumption of advancement
— Whether presumption exists between father and daughter-in-law — assessment
of s 75(2) factors — Asset by asset approach — Family Law Act 1975 75(2).
Zalewski v Zalewski [2005] FamCA 996, (2005) FLC 93-241, (2005) 34 FamLR 296,
24 October 2005
Full Court of the Family Court of Australia before Finn, Coleman and Boland JJ
This was an appeal by the father against orders for property settlement.
The parties married in 1975 and divorced in 2002. There were two children of the
marriage, both over the age of 18 and independent at the time of the hearing. On
10 January 1997, the parties entered into Terms of Settlement, by consent, which were
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Family Court of Australia Annual Report 2005–2006