Divorce

FAMILY LAW - APPEAL – PROPERTY – CONTRIBUTIONS – REASONS - Where husband appealed against orders the wife pay $2 million to the husband and release him from any debt owing to any company controlled by the wife - Where total property pool was over $66 million – Where asserted contribution assessment manifestly unjust – Where parties' cohabitation was of 5 years duration - Where husband bankrupt at commencement of cohabitation - where wife had assets (and interest in a discretionary trust) of approximately $14.5 million at commencement of cohabitation - Whether trial Judge erred in assessing husband’s contribution based entitlement at $1 million – Whether trial Judge failed to give adequate weight to husband’s contributions – Whether adequate reasons given for contribution finding – Where husband’s asserted financial contribution came from employment on the wife’s rural property and to commercial business enterprise - Where trial Judge evaluated the parties’ respective contributions pre-cohabitation, during cohabitation and post-separation – No error in trial Judge’s assessment of husband’s contributions - Whether trial Judge erred in calculating contribution entitlement as a lump sum rather than as a percentage of the total property pool – Trial Judge gave adequate reasons. No error in contribution assessment.

APPLICATION FOR REINSTATEMENT OF APPEAL – Where appeal deemed abandoned – Where applicant was unable to prosecute appeal due to illness – Appeal reinstated subject to applicant’s compliance with costs orders.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PROPERTY SETTLEMENT – Long marriage – Equal assessment by Federal Magistrate of contributions of parties leaving aside inheritances – Failure by Federal Magistrate to discuss husband’s evidence relating to an inheritance – Money from husband’s inheritance used as part payment of an investment property – Federal Magistrate failed to mention the tax debt of the husband at trial – On appeal the husband also attacked the Federal Magistrate’s inclusion in the asset pool of the equity of the husband in property purchased with his new partner after separation (but not an alleged debt in relation to it) – On appeal the husband also attacked the Federal Magistrate’s deduction of a credit card debt of the wife at the time of separation – The respondent conceded that at least one of the grounds of appeal had merit

FAMILY LAW – APPEAL - APPLICATION FOR LEAVE TO APPEAL – Allowed.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – appeal previously withdrawn on day of hearing – application for costs – financial circumstances of parties – father’s conduct – offer by father day before hearing – father wholly unsuccessful – appellant to pay respondent’s costs of appeal and application for costs, such costs to be taxed.

FAMILY LAW - COSTS

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – INTERLOCUTORY ORDER – Where trial Judge discharged an interlocutory injunction restraining the husband from leaving Australia – Where property proceedings pending – Where wife asserted husband had significant undisclosed assets overseas – Where wife asserted husband had forged documents and that he would not return to Australia if criminal proceedings were brought against him – Where wife asserted her s 79 entitlements incapable of enforcement by way of contempt proceedings if husband overseas – Where wife asserted trial Judge had failed to rule on admissibility of expert forensic document examiner’s report – Where no leave sought or granted for appointment of document examiner – Where assertion trial Judge had not applied the “proper test” in his consideration of balance of convenience –– Consideration of proper test to be applied in determining whether or not to grant an interlocutory injunction –Where reasons of trial Judge alleged to have been inadequate – Where no error of principle or substantial injustice established – Application dismissed.

FAMILY LAW - APPEAL – From decision of Family Court Judge – COSTS – Wife applied for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) – Husband did not oppose the application – Costs certificates granted to the respondent wife

FAMILY LAW - APPEAL – CONSENT ORDERS – CONSEQUENTIAL ORDERS - JURISDICTION - Where parties consented to orders – Where parties subsequently in dispute about the interpretation and implementation of the orders – Whether the trial Judge had jurisdiction to make further orders – Whether it is necessary for the trustee of a superannuation fund to become a party to the proceedings when orders are made in resect of assets of self managed superannuation fund – Where no superannuation splitting order was made or sought – Where trustee was not affected by the original consent orders or the consequential orders - The trustee of the superannuation fund did not need to be joined as a party – Where appellant asserts superannuation fund issues should have been instituted by civil action by trustee seeking a declaration and transfer of ownership of property – Proceedings concerning assets of the superannuation fund not required to be instituted as civil proceedings in a State court - Whether a superannuation fund is “property” for the purpose of s 4(1) and capable of enforcement under s 105 of the Family Law Act 1975 (Cth) –Discussion of Coghlan & Coghlan [2005] FamCA 429; (2005) FLC 93-220 and Hickey & Hickey [2003] FamCA 395; (2003) FLC 93-143 – Where the parties intended by implication the superannuation fund be treated as property in their consent orders – Trial Judge had jurisdiction to make orders.

FAMILY LAW - APPEAL – DIVORCE ORDER – LIVING SEPARATELY AND APART – Whether Federal Magistrate erred in finding that the parties’ marriage had irretrievably broken down at date of filing of the divorce application – Where s 48(2) of the Family Law Act 1975 (Cth) requires the parties to have lived separately and apart for not less than 12 months immediately preceding the date of filing of the application for the divorce order – Amendment of an application does not alter date upon which it was filed - Discussion of “separation” and “irretrievable breakdown of marriage”- Importance of communication of intention to separate – Where in the circumstances of this case, there had been no communication of a desire to end the marriage – Appeal allowed – Divorce order set aside.

A case about a de facto relationship that had broken down (a relationship where the parties were not married). The break up of the relationship was treated as a divorce in which the plaintiff was awarded part of the property and investment values.

FAMILY LAW - APPLICATION – EXTENSION OF TIME TO APPEAL PROPERTY ORDERS – Where delay not substantial – Where reason for delay not compelling – Where appellant able to pay costs if appeal unsuccessful – Where applicant has complied with trial judge’s orders – Where only prejudice to respondent is on-going litigation – Where prejudice to applicant would be inability to appeal orders – Where competing interests finely balanced – Where strict application of the rules would create an injustice – Extension of time granted.