Subpoenas are often an extremely useful way to obtain documents which are not produced through the usual disclosure process under the Rules of the Family Law Courts. For example, subpoenas can be used: As an alternative to enforcing disclosure; or To obtain documents which are not subject to the duty of disclosure because they...
De facto couples can register their relationships in Victoria. This has several consequences, including bringing the relationship within the definition of "de facto relationship" for the purposes of the Family Law Act 1975. The usual jurisdictional hurdles, such as a relationship of two years or having a child, do not apply....
Implications for Spousal Maintenance In a rare foray into the Family Law Act 1975, and an even rarer foray into the entitlements of parties to an order for spousal maintenance and particularly interim spousal maintenance, the High Court has granted special leave to the wife to appeal (Hall v Hall [2016] HCA Trans 23) against a...
Trustees in bankruptcy are often pessimistic about how they will fare in proceedings under s 79 Family Law Act 1975 ("FLA"). The recent case of Grainger & Bloomfield[1] is likely to increase this pessimism. The impact of s 75(2) in the determination of claims under s 79 when one party is bankrupt may be less than indicated...
The Full Court of the Family Court of Australia in Grainger & Bloomfield[1] considered the standing of a creditor to apply to set aside a financial agreement after the debtor spouse became a bankrupt. Shortly prior to the bankruptcy, the bankrupt spouse transferred her legal title in the home to her husband, which left...
“Special” contributions are out, but how much recognition should pre-marital skills and experience be given? This issue was considered in Pfenning & Snow[1]. The husband unsuccessfully sought a 40% disparity in the outcome of the alteration of the parties’ property interests, based on an assessment of his financial...
Introduction There are complex legal principles involved in drafting a financial agreement which will stand up to court scrutiny. There are two main risks: The agreement is found not to be binding because it does not meet the technical requirements; and The agreement is set aside. Two recent cases illustrate the problems. In...
Recently, the Family Court of Western Australia delivered judgment in the "Baby Gammy" case. Although colloquially called the "Baby Gammy" case, the Court was asked to determine the parenting arrangements which were in the best interests of Pipah (Baby Gammy's twin sister).The lengthy judgment of almost 800 paragraphs and 190...
The High Court considered spousal maintenance and the term “financial resources” in Hall v Hall (2016) FLC 93-709. An earlier article discussing the decisions of the trial judge and the Full Court in detail and can be read here. Overview The High Court, in Hall, considered: The meaning of “financial resources” in s 75(2)(b)...
Every year there are obvious amendments to family law legislation, but also many other pieces of legislation which do not, by reference to their name, alert family lawyers to their relevance. These amendments are, of course, incorporated into the online version of the Autsralian Family Law Act 1975 with Regulations and Rules...
In the last 12 months or so there have been some significant cases under the Family Law Act 1975. Those dealt with in this article cover: Spousal maintenance - Hall The definition of “financial resource” Life expectancy - Fontana A lottery win early in the marriage Add-backs Bankruptcy basics Whether a financial agreement can...
How the High Court’s Ruling May Affect Financial Agreements How do the concepts of duress, undue influence and unconscionability apply to the setting aside of financial agreements? Are they alternative arguments or overlapping? Does the giving of legal advice mean that a financial agreement cannot be set aside for duress?...