LSB July 2022 LR

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FAMILY LAW CASE NOTES Family Law Case Notes CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK PROPERTY – DE FACTO THRESHOLDS – “BREAKDOWN” OF A DE FACTO RELATIONSHIP IS THE TRIGGER POINT FOR JURISDICTION – AGGREGATE OF CIRCUMSTANCES SUPPORTED CONCLUSION THAT RELATIONSHIP HAD BROKEN DOWN In Fairbairn v Radecki [2022] HCA 18 (11 May, 2022) the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia. The New South Wales Trustee & Guardian (Trustee) as case guardian for the de facto wife sought orders for sale of a home to pay the wife’s care accommodation. The de facto husband argued the Court lacked jurisdiction as the parties had not separated. While the trial judge agreed; the Full Court found that decision contained error as it imputed an intention to separate rather than assessing indicia. The High Court held (from [29]): “A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer ‘have a relationship as a couple living together on a genuine domestic basis’. … [30] … It is the ‘breakdown’ or ‘end’ of a de facto relationship that is the trigger point for the … Court to be seized of jurisdiction to make a property settlement order … It would make no sense for … jurisdiction to arise before a de facto relationship had ended … ( … ) [33] … [C]ohabitation of a residence … is not a necessary feature of ‘living 34 THE BULLETIN July 2022 together’. … Two people … may not reside in the same residence, but nonetheless be in a de facto relationship … [34] The fact that here the appellant was placed into an aged care facility may be relevant to the existence or breakdown of a de facto relationship … but it could not … be determinative of that issue. … ( … ) [46] Whilst there had been a degree of mutual commitment to a shared life, that commitment ceased when the respondent refused to make the ‘necessary or desirable adjustments’ in support of the appellant and … acted contrary to her needs. ( … ) [47] In aggregate, these circumstances support the conclusion that there had been a breakdown in the parties’ de facto relationship …” The appeal was allowed, with the appeal to the Full Court dismissed. PROPERTY – COURT ERRED IN CONSIDERING HUSBAND’S DEFECTIVE DISCLOSURE WHEN ASSESSING CONTRIBUTIONS – INCLUDING CAPITALISED VALUE OF PENSION IN ASSET POOL AND CONSIDERING PENSION UNDER S 75(2) IS “DOUBLE DIPPING” In Mayhew & Fairweather [2022] FedCFamC1A 53 (12 April, 2022) the Full Court (Austin, Tree and Gill JJ) heard a husband’s appeal from orders of Wilson J for a 60:40 division in the wife’s favour after a relationship of between 34 and 36 years. The husband’s appeal grounds included the treatment of his alleged defective disclosure and double counting of his pension, where its capitalised value was included in the asset pool, but also considered as part of the wife’s s75(2) adjustment. As to the husband’s defective disclosure, the Full Court said (from [13]): “… [I]n order to be considered under s 79(4)(a) or (b) of the Act, the defective disclosure must relate to a direct or indirect, financial or nonfinancial, contribution ‘to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them’… [14] The usual way in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property … or under s 75(2)(o) of the Act. … [W]e are satisfied that by factoring it in to the analysis of contributions, the primary judge erred … ” As to the treatment of the husband’s pension, the Full Court continued (from [23]): “ … [I]t seems inconceivable that the quantum of the income stream was not expressly taken into account in arriving at its notional capital value, and its assurance likely was reflected in the capitalisation rate applied to the income stream, and hence it was already valued by reference to that feature. … [E]ven if that were not so … how his Honour could have been satisfied that some aspect or quality of the pension had not already been taken into account in arriving at its notional value, is completely unclear. To thus use both the income stream and its assurance as the justification … for an adjustment of 2.5 per cent … is to ‘double dip’ and thus to err.”
FAMILY LAW CASE NOTES The appeal was allowed and the case remitted for rehearing. CHILDREN – ARTIFICIAL CONCEPTION PROCEDURE – RESPONDENT LACKED STANDING TO BRING A PARENTING APPLICATION WHERE SHE AND THE DECEASED MOTHER WERE NOT IN A DE FACTO RELATIONSHIP In Wickham & Toledano [2022] FedCFamC1F 32 (3 February, 2022) Carew J heard an application for parenting orders by the maternal aunt and her husband in respect of twins born in 2021 where their birth mother died in that year. The respondent (Ms B) was the former partner of the late mother. After a short engagement and at least five separations, their same sex relationship ended in April, 2021. The interim issue before the Court was Ms B’s standing to apply for a parenting order. It was agreed that per s 60H(1) of the Act, the respondent was a parent if she and the birth mother were in a de facto relationship at the time of carrying out of the artificial conception procedure which resulted in the birth of the children ([20]). Carew J said (from [21]): “Whether or not Ms B and the respondent lived in a de facto relationship at the time the artificial conception procedure was carried out is a question of fact … ( … ) [51] … [T]he relationship between the respondent and Ms B was short. … It was an intense and volatile relationship. They maintained their own residences despite Ms B spending time, including overnights, at the respondent’s residence … They owned no property together. They had no joint accounts. … [52] It could not be said that [at the time of the procedure] … that they had a relationship as a couple living together on a genuine domestic basis. [53] Accordingly, I find that the respondent is not a parent within the meaning of the Act.” The Court then found (at [75]) that Ms B was not a person concerned with the care, welfare and development of the children within the meaning of s 65C(c) (for reasons including that she had “no relationship with the children”), such that her application was dismissed and the case was otherwise listed for a final hearing. PROPERTY – INTERIM ORDERS TO SELL THE FORMER MATRIMONIAL HOME ARE NOT FINAL ORDERS SOLELY BECAUSE THEY RENDERED THE WIFE’S FINAL APPLICATION OTIOSE – WIFE RETAINED AN ABILITY TO PURCHASE THE HOME In Kartal & Templeman [2022] FedCFamC1A 46 (4 April, 2022), Austin J, heard a wife’s application for leave to appeal against interim orders made by a magistrate in the Magistrates Court of Western Australia for the sale of the former matrimonial home. The parties had significant debt. The wife sought interim orders for the property to be transferred into her sole name so that she could re-finance the debt. The husband sought the interim sale of the property and for the debts to be discharged from the proceeds of sale. The magistrate made orders in the terms of the husband’s application. The wife appealed. Austin J said (from [17]): “The wife considers the sale orders are final because their execution would preclude her from pressing her application for orders granting her sole proprietorship of the former family home at … trial. While it is true the sale orders render otiose her application for final relief … that consequence does not convert interlocutory orders into final orders. [18] The orders are not ‘final’ because they do not exhaust the Court’s statutory power and are not dispositive of the parties’ respective applications … ( … ) [22] … If the former family home is sold according to the orders, nothing stops the wife from purchasing the property on the open market with the aid of the same financial assistance she had envisaged … to … acquire the husband’s one-half share. … ( … ) [59] … The wife’s application was to stop the sale by acquiring exclusive legal title in the property. Her aim was to preserve the home for herself … [60] What then … brought the wife’s application for an interim alteration of property interests within legal principles? Why should she have been able to preempt the outcome of the adjustment proceedings … by acquiring exclusive title … ? Why should the husband have been deprived of access to his share of the net equity … ? These were questions she did not answer … ” The wife’s application was dismissed with costs. B July 2022 THE BULLETIN 35
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LSB July 2022 LR

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