LSB September 2022 LR

More documents

Recommendations

Info

FAMILY LAW CASE NOTES Family Law Case Notes CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK CHILDREN – ASSESSMENT OF UNACCEPTABLE RISK IS A PREDICTIVE EXERCISE THAT INCLUDES MERE POSSIBILITIES In Isles & Nelissen [2022] FedCFamC1A 97 (1 July, 2022), the Full Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) dismissed a father’s appeal from orders made by McGuire J that four children live with the mother and spend supervised time with the father. The father had been charged with rape of the eldest child in criminal proceedings that had been discontinued for “lack of specificity” in the evidence ([63]). McGuire J found he could not make a specific finding of sexual abuse; but found the father presented an unacceptable risk of harm. The Full Court noted cases had gone so far as to posit that (from [6]): “[T]he risk of … abuse … must be proven on the balance of probabilities according to the civil standard of proof …We consider that statement of principle to be incorrect … [7] … [I]t is an oxymoron to expect … possibilities to … be forensically proven on the balance of probabilities … By definition, possibilities are not, and could never be, probabilities. ( … ) [56] … [T]he principles enunciated in M v M (1988) 166 CLR 69 about ‘unacceptable risk’ were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such 32 THE BULLETIN September 2022 principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A [1998] FamCA 25 … ) ( … ) [59] … The provisions of the Act are [now] wide enough to embrace most, if not all, assertions of an ‘unacceptable risk’ of harm … and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act. ( … ) [85] The assessment of risk is an evidence-based conclusion and is not discretionary. … The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment … which entails an exercise of discretion. …” PROPERTY – TRUST PROPERTY EXCLUDED FROM ASSET POOL – DESPITE HER ROLE AS APPOINTOR, WIFE NEVER HAD CONTROL OF THE TRUST In Barrett & Winnie [2022] FedCFamC1A 99 (1 July, 2022), the Full Court (McClelland DCJ, Baumann & Hartnett JJ) dismissed with costs a husband’s appeal against a decision of Kent J declining to make property adjustment orders in the context of a 14 year marriage. Subsequent to their separation, there was an informal settlement whereby the husband demanded and received the wife’s interest in a jointly owned property ([91]); where the wife was also removed as appointor of a trust called “the Winnie Family Trust” in February 2008 ([100]). The husband unsuccessfully sought to set the wife’s removal aside pursuant to s 106B. Kent J excluded the trust’s property from the matrimonial asset pool, otherwise finding that the husband already retained property 95.61% of the existing net asset pool. The Full Court said (from [99]): “The … judge accepted the evidence of … [the] respondents as to the adverse impacts of the … global financial crisis … The … judge accepted the evidence that … the … respondents … took effective action including by way of selling properties at a loss. … [T]he … judge found that a substantial part of the asset base that currently exists in the trusts … accrued in the period subsequent to the global financial crisis and … post the separation of the parties to the marriage. ( … ) [137] … [T]he … judge found, as a matter of fact, that the Winnie Family Trust had never operated as or been treated as the alter ego of the [wife] ( … ) [145] … [T]he … judge … appropriately had regard to the interests of other third parties and the significant contributions that they made to the trust property in determining whether it was appropriate to exercise his discretion to set aside the Deed. ( … ) [155] … [T]he judge, appropriately … excluded the trust property from the property pool but had regard to the trust assets as being a significant financial resource available to the [wife] …”
FAMILY LAW CASE NOTES PROPERTY – INJUNCTION – FREEZING ORDERS ARE TO PRESERVE THE STATUS QUO, NOT CHANGE IT IN FAVOUR OF THE PARTY WHO SEEKS THE ORDER In Qian & Xue [2022] FedCFamC1A 93 (21 June, 2022), Aldridge J set aside a “suite of interim freezing orders”, including an order that the wife pay $850,000 to the husband’s solicitors trust account. Contested property proceedings had been on foot since 2019; where the husband brought an application for injunctions in anticipation of the wife receiving monies on 24 August, 2021; the wife received the $850,000 on 30 August 2021, but transferred $735,000 to her brother, sister and father in China, prior to the listing of the application in November. The wife said the transfers were to repay loans; the husband seeking injunctions on the basis that “the disposition of the funds would put them beyond the jurisdiction of the court and diminish the property pool” ([15]). Aldridge J said (from [22]): “A freezing order ‘operates to preserve the status quo and not to change it in favour of the party who seeks the order’ per Gageler, Keane, Gordon and Gleeson JJ in Deputy Commissioner of Taxation v Huang [2021] HCA 43; (2021) … [23] The order made … for the payment of $850,000 exposed the wife to the risk of punishment for contempt in the event it was not complied with … [24] … [T]he purpose of a freezing order is … not to improve the security position of the applicant or to render the respondent liable for imprisonment for debt. The order should only have been considered if it was clear that it could be complied with ( … ) [26] … [W]hilst there may have been a basis to prevent the funds from being transferred, absent an order from the Court preventing her from doing so, the wife was free to deal with her funds … ( … ) [29] The fact that an injunction could have been obtained preventing … [a] person from transferring funds, but was not, does not automatically lead the proposition that, having permissibly done so, they must now reacquire the funds …” PROPERTY – WIFE RECEIVES 100 PER CENT OF NET ASSET POOL WHERE NET EQUITY IN HOME WAS $38,000 – NO ORDER MADE AS TO JOINT DEBT In Chan & Lee [2022] FedCFamC1A 85 (3 June, 2022), the Full Court (Tree, Gill) allowed an appeal from a decision of Rees J, where the wife appealed orders where she was to receive 100% of the net asset pool, where the effect of the further order that she indemnify the husband as to debts was that she would retain a net deficit overall. Wilson J dissented. The net pool was primarily comprised by a $570,000 property (at Suburb C); subject to a mortgage; there being conflicting evidence of loans owed to the wife’s parents. Tree & Gill JJ said (from [96]): “Although the wife sought … that an obligation should be placed upon the husband to pay the mortgage for that property, this is not a sustainable position. If the husband were to be required to hold the obligation for … the … debts in relation to that property he would effectively be required to bring property into existence that does not at present form a part of the parties’ pool of property. ( … ) [98] The debt related to the property is constituted by $440,000 secured by mortgage and $92,000 unsecured but owed to the wife’s parents, totalling $532,000 in relation to a property valued at $570,000, leaving a net equity of $38,000. Where the wife is to retain the … Suburb C property, she should indemnify the husband in respect of all debt associated with the property … [99] The balance of the debts total a $26,826 student loan taken out by the wife and $30,500 borrowed from her parents for various living expenses and supports for the parties. ( … ) [101] … [I]nsofar as the orders required the wife to indemnify the husband in respect of the non … Suburb C property related debt to the parents, this should not be the case … [N]o provision should be made for indemnification in respect of this debt. This leaves the husband also indebted, and both parties in a net debt position. … [102] Whilst this may seem a minor benefit to the wife, given her parlous financial circumstances, it is potentially significant, and not mere tinkering. Moreover, it properly reflects the reality of the position arrived at (correctly) by the primary judge that the orders should reflect a 100 per cent adjustment to the wife … ” B September 2022 THE BULLETIN 33
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE The law is se
Page 7 and 8: NEW SUIT ARRIVALS FROM SAVILLE ROW
Page 9 and 10: AGEING & THE LAW family or assets o
Page 11 and 12: AGEING & THE LAW partner abuse repr
Page 13 and 14: AGEING & THE LAW Endnotes 1 There a
Page 15 and 16: DISABILITY Report that police may b
Page 17 and 18: AGEING & THE LAW The most substanti
Page 19 and 20: EVENTS Nyland lunch celebrates powe
Page 21 and 22: RISK WATCH 3. If it involves trust
Page 23 and 24: INTERVIEW RH: Over the years you sp
Page 25 and 26: TAX FILES money was irrelevant - ne
Page 27 and 28: FEATURE STAYS OF CIVIL PROCEEDINGS
Page 29 and 30: CIVIL LITIGATION 2. The burden is u
Page 31: WELLBEING & RESILIENCE Ageing Well
Page 35 and 36: CLASSIFIEDS Advertise in The Bullet

LSB September 2022 LR

Create successful ePaper yourself

Delete template?

Save as template?