PRINT PDF The Full Court of the Family Court in Trask & Westlake[1] recently explained the form of orders which should be made when real properties are to be sold. The orders made by the Full Court were more complex than the Family Law Courts usually make, using a mathematical formula to give a more precise percentage...
Recently, the Full Court of the Family Court in Trask & Westlake[1] said that for orders to be "just and equitable" and "appropriate", they needed to reflect the reasons in the judgment. Property Sale and Order Drafting This seems obvious, but when a real property is to be sold pursuant to orders, the precise sale price is...
Full Court’s Take on ‘Just and Equitable’ Property Settlements Post-Stanford The Full Court of the Family Court has considered the impact of the High Court's decision in Stanford v Stanford[1] in several cases. In particular, the Full Court in Bevan & Bevan[2] and Chapman & Chapman[3] rejected the notion that Stanford...
Family lawyers often struggle with the timing of when to seek a certificate for their client under s 128 Evidence Act 1995 (Cth). Section 128 deals with the privilege against self-incrimination. A certificate is commonly sought to protect a client from criminal charges, such as for tax or Centrelink fraud. Recent decisions of...
There have been few reported cases with respect to the enforcement of financial agreements. Recently, the Family Court had to decide whether having previously refused to set aside a financial agreement or make a declaration that it was not binding, it could exercise its discretion not to enforce the agreement. In Fan &...
Husband Sues Lawyers Over Invalid Cohabitation Agreement A husband is suing his lawyers because his cohabitation agreement was not validly executed. The Family Court ordered that his former de facto wife was entitled to retain the husband’s Porsche with a personalised number plate, his cemetery plot, and $900,000 cash. His...
Introduction Legislative change in family law has been unusually slow in the past 18 months which has allowed time for the Family Law Courts to consider and consolidate their approach to recent legislative and judicial changes. Since the last edition of this book, there have been two sets of amendments to the Family Law Rules...
Impact of a Party’s Death on Section 79 Proceedings What happens if a court makes a property settlement order under s 79 Family Law Act 1975 (Cth) ("the Act") after a party dies, without the court having knowledge of the death? This was the dilemma faced by the Family Court of Western Australia in Mooney & Mooney[1], where...
The "forum non conveniens" test does not apply when determining which forum should determine a family law dispute when the contest is between Australia and New Zealand. An example of the application of the test which applies to these forum disputes occurred in Nevill & Nevill.[1] In that case, the wife issued property...
Introduction Besides the difficulties encountered by lawyers trying to navigate the complexities of Pt VIIIA (and the equivalent, but not precisely the same, provisions for de facto couples in Pt VIIIAB) including the retrospective amendments of s 90G(1) and the transitional provisions, family lawyers need knowledge of...
In deciding whether Australia should exercise jurisdiction in proceedings under the Family Law Act 1975 ("the Act") , the usual test is whether or not Australia is a "clearly inappropriate forum". The application of the "clearly inappropriate forum" test was recently considered in Deslandes & Deslandes[1]. In that case,...
Undertakings & Maintenance in Hague Child Abduction Cases International mobility continues to increase through greater travel and work opportunities, and the number of cases dealt with by the Family Law Courts continues to increase exponentially. The difficulties involved with resolving financial disputes at the end of a...