FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book
Property – Equal assessment of contributions failed to give recognition to husband’s inheritance which made up 30 per cent of the pool In Roverati [2021] FamCAFC 89 (11 June 2021) the Full Court (Strickland, Ryan and Austin JJ) considered a 33 year marriage that produced two children. In 2003, the wife received an inheritance of about $50,000 ([18]), which was put in a trust and had not generated income. In 2006, the husband received an inheritance, worth at least $404,619, that generated rental income. The net pool was $1,317,405 ([60]). Allowing the appeal, Strickland and Ryan JJ said (from [27]): “The … husband’s complaint …[is] that ... his Honour implicitly concluded that both inheritances were similar in nature, and … his Honour erred by giving no or insufficient weight to the [husband’s] inheritance ( ... ) [32] … [T]he husband’s inheritance was … at least … $404,619.64, whereas the wife’s … approximately $50,000. … [T] he husband’s financial contribution … was significantly more than the wife’s, … without taking into account the income subsequently derived therefrom, and the increases in the value of the assets … [33] … [T]he assessment of contributions is not a mathematical or accounting exercise, … it is an holistic undertaking with all … contributions … being taken into account (Dickons & Dickons [2012] FamCAFC 154 ... ) … [34] … [I]t is not apparent from his Honour’s treatment of the respective contributions … culminating in a finding of equality, how the contributions of the wife informed that outcome, such that the … financial contributions of the husband … did not result in a weighting in his favour. ( ... ) [39] ... There is no recognition that approximately 30 per centum of the asset pool … was derived from the husband’s inheritance, and his Honour’s failure … cannot be masked by suggesting that his Honour … applied the requisite holistic approach in assessing contributions ( … ) [58] … [G]iven the significant financial contribution by the husband of his inheritance, … the respective contributions of the parties should be assessed at 55 per
centum/45 per centum in the husband’s favour.”
Property – Interim order for conditional sale of property in which husband only owned a 5 per cent interest in error In Lin & Ruan [2021] FamCAFC 90 (9 June 2021) the Full Court (Ainslie-Wallace, Watts & Austin JJ) allowed an appeal from a series of interim orders, the first requiring the husband to pay mortgage outgoings for a property he owned with the wife (suburb “B”), and subsequent interim orders that in the absence of his rectifying mortgage arrears, another property, (suburb “C”) be sold. The husband owned a 5 per cent interest in the suburb C property; while his mother owned a 95 per cent share. The wife joined the husband’s mother as a party, as she argued that the husband’s mother owned her interest in the property upon trust for the husband. The Full Court said (from [25]): “… [S]ince the husband had failed to … comply with the order and the mortgage repayments on the Suburb B property were in arrears, his Honour turned to consider what ‘machinery provisions’ were necessary to ensure the mortgage repayments were met … [26] … [W]ithout any further … explanation …, the primary judge concluded: 35 ... [I]t would be appropriate to make … orders for the sale of the [Suburb C property] to use at least [the husband’s] 5% legal entitlement in that property, to pay the outstanding mortgage costs. ( … ) [28] … [T]he [husband’s mother] bore no separate obligation to financially support the wife … and so, if the orders for the conditional sale of the Suburb C property were only being made to ensure rectification of the husband’s personal default … then no more than his own five per cent stake in the Suburb C property should have been the subject of such garnishment. … [29] Even if the primary judge concluded that the appropriation of the appellant’s property to cover the husband’s individual liability was justified, it was obligatory to identify the source of power to make the orders and to satisfy himself that the preconditions for its exercise were fulfilled.
That was not done. ( … )”
Children – Parties’ contravention applications should not have been heard together In Dobbs [2021] FamCAFC 78 (21 May 2021) the Full Court (Alstergren CJ, Strickland & Austin JJ) allowed a husband’s appeal from an order made pursuant to s 70NEB(1)(d) made after each party had brought contravention applications, alleging that both property and parenting orders had been contravened. The Full Court said (from [23]): “ … [I]t was quite unclear what particular applications were the subject of attention by the … judge at any one point in time. … [T] he conduct of the proceedings in that way was procedurally unfair for two fundamental reasons. [24] … [T]he … procedure prescribed for hearing contravention applications (r 21.08 … Family Law Rules 2004 (Cth) (‘the Rules’)) is … different from the usual procedure for hearing other forms of civil application. If there is to be a departure from that procedure, it must be done so as not to cause injustice or prejudice to the respondent (Caballes & Tallant [2014] FamCAFC 112 …). … [T]he husband was defending the wife’s contravention applications and, … he enjoyed an entitlement to remain mute until the closure of the evidence offered in support of the alleged contraventions, which right he could not be forced to relinquish. He could not be expected to lead evidence about the need for further orders to facilitate implementation of the final property orders when he was … defending an allegation of his contravention of those … orders. [25] … An applicant who prosecutes a contravention application carries the burden of adducing evidence to prove the alleged contravention. … [N]either party could concurrently carry the burden of proof and reserve their right to silence. [26] The procedure adopted by the primary judge for hearing and determining the wife’s contravention applications bore no similarity at all to that prescribed by r 21.08 of the Rules ( … ) [29] ( … ) [T]he husband was improperly converted from applicant to respondent when the evidence filed in support of the contraventions alleged by the wife had not
63
