By and -

Key decisions

  • Oamra & Williams [2021] FamCAFC 117
  • Secretary, Commonwealth Attorney General’s Department & Bashir
    [2021] FamCAFC 137
  • Mayson & Wellard [2021] FamCAFC 115
  • Maggio & Turner [2021] FamCA 466

PROPERTY

Mutual assumptions and consensual agreements may inform whether it is just and equitable to make a property order

In Oamra & Williams [2021] FamCAFC 117 (13 July 2021) the Full Court (Strickland, Watts & Sutherland JJ) dismissed with costs an appeal from a decision of O’Brien J in the Family Court of Western Australia.

The wife argued that the parties ‘had voluntarily arranged their financial circumstances on the basis that they neither owned property in their joint names, nor operated a joint bank account, and that they contributed to household expenses in a very structured way based upon an agreed, predetermined budget’ (at [2]).

Relying on Stanford [2012] HCA 52, she argued that the Court could not find that it was just and equitable to make a property order.

The Full Court said (from [29]):

‘ … [T]he wife’s … position was both parties operated on … assumptions that each would keep their own property separate …, that the assumptions were both expressed and implied, but primarily implied because any knowledge either party had about what the other one was doing was incidental and not the subject of any discussion …

[31] … [T]he wife … argue[d] that despite the finding … that there were no mutual expressed or implied assumptions to keep the parties’ finances … separate, the wife could rely upon her own unilateral assumptions …

[34] The wife asserts that the primary judge … erroneously required that the assumptions be “mutual” and that error contaminated his Honour’s conclusion as to whether it was “just and equitable” to make an order. The wife argues that there is no warrant to read into the obiter dicta of the High Court in Stanford any requirement for mutuality in any stated or unstated assumptions that the parties would keep their finances entirely separate …

[36] We do not accept the wife’s submission … [I]t [is] clear that the High Court was talking about mutual assumptions and mutual agreements. Axiomatically any agreement must be mutual. …’

CHILD SUPPORT

Section 106A application could be heard despite mother not living in reciprocating jurisdiction

In Secretary, Commonwealth Attorney General’s Department & Bashir [2021] FamCAFC 137 (30 July 2021) the Full Court (Strickland, Aldridge & Tree JJ) allowed an appeal from Judge Boyle’s dismissal of an application by the Attorney General’s Department for a declaration of parentage pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (‘CSA Act’) brought on behalf of a USA based mother.

The Full Court said (from [16]):

‘Pursuant to s 99(1) of the CSA Act, ‘[j]urisdiction is conferred on the… Federal Circuit Court of Australia [FCCA] … in relation to matters arising under this Act’. …

[17] … [T]he … relief sought under s 106A was a matter under the CSA Act, and thus the … judge did have jurisdiction …

[22] … [W]hether the FCCA has power to make a declaration under s 106A(5) of the CSA Act turns on whether four requirements are met.

[23] … [Section] 106A(1) must be engaged; namely … the Registrar refused to accept an application for administrative assessment … under s 30(2) …

[24] … [T]he application must be for a declaration that a person be assessed in respect of the costs of the child … (s 106A(2)(a)) …

[25] … [T]he application must be made within ‘the time prescribed … ’ (s 106A(3)). …

[26] … [E]ither that the person should be assessed in respect of the costs of the child because the person is a parent of the child (s 106A(5)(a)), or … the Registrar should reconsider the application … because the person who was to be assessed … is a parent of the child (s 106A(5)(b)). …

[32] … [T]he appellant contended … that the … judge misconstrued s 106A in finding that … the requirements in s 25(d) had to be met; namely, that the [mother] be a resident of a reciprocating jurisdiction.

[34] … [H]er Honour did wrongly determine that, before an order under s 106A could be made, the appellant had to establish that the requirements of s 25(d) were met. …’

‘The issue is not whether the parties “separated”, but whether the de facto relationship broke down or ceased. … There is no mention in the Act … of  there needing to be an intention formed to either enter into a de facto relationship, or … to end it. …’

PROPERTY

De facto thresholds – family violence highly relevant as to whether couple living together on a genuine domestic basis

In Mayson & Wellard [2021] FamCAFC 115 (14 July 2021) the Full Court (Strickland, Ryan & Kent JJ) allowed a de facto wife’s appeal against a declaration that a de facto relationship existed for more than two years. She argued that while the parties lived under one roof until November 2015, separation occurred in late 2011 or early 2012.

The Full Court said (from [30]):

‘ … [T]he onus was … on the [de facto husband] … to establish that there was a de facto relationship until 8 November 2015. … [H]er Honour … require[d] the [de facto wife] … to establish that there was no de facto relationship after late 2011/early 2012 … This is a clear error …

[33] … Section 4AA(1) of the Act mandates that regard must be had to all the circumstances of the relationship in determining whether it is one of a couple living together on a genuine domestic basis. …

[34] … [G]iven that her Honour accepted the evidence of the [de facto wife] … as to the circumstances in this case and in particular having regard to the fact that after mid-2011 any sexual activity was non‑consensual … it is not explained by her Honour … why those circumstances could only have “limited relevance” in this case; plainly they … could only have led to a finding … that there was not a genuine domestic relationship … after late 2011/early 2012. …

As to separation, the Full Court said (from [40]):

‘The issue is not whether the parties “separated”, but whether the de facto relationship broke down or ceased. …

[42] There is no mention in the Act … of there needing to be an intention formed to either enter into a de facto relationship, or … to end it. …

[45] … [T]he comparison of the circumstances as they existed prior to late 2011/early 2012 with the circumstances that existed thereafter should have led her Honour to find that the de facto relationship ceased at that time.’

PROPERTY

Application for interim sale of shareholding which would prejudice wife’s position denied where no urgency

In Maggio & Turner [2021] FamCA 466 (1 July 2021) Hartnett J dismissed a husband’s application for the winding up of a trust and sale of a shareholding interest, in which he argued that neither party sought to retain the interest such that a sale was inevitable.

A single expert had valued the shareholdings as being worth $280,612 per share, whereas another shareholder in the group had offered the husband $150,000 per share.

The Court said (from [19]):

‘The value of [the] … offer to the parties’ is 54% of the value attributed to the … interest … as determined by the single expert Mr M. …

[21] There appears no disagreement between the parties that the sale of the shareholding … will deprive the parties of between $415,000 and $420,000 a year …

[22] The husband’s argument for selling the shareholding interest as proposed by him is to allow him to obtain finance to purchase a home in the sum of approximately $2 million. … The husband does not … set out in his evidence … any urgent need to sell the interest … The sale, as proposed by the husband, will decrease [the] income stream for each of the parties in a significant way, in particular and relevantly, by comparison with any interest the husband may pay in borrowing costs for the purchase of a new home. … The husband has the necessary income stream from the parties’ shareholding interest to purchase a home … and meet repayments …

[25] The single expert, Mr M, attributed a value of $5,500,000 to the parties’ entire interest …

[30] The husband submitted that in circumstances where neither party seeks to retain the shares … that the shareholding should be sold.

[31] The only present offer to purchase the parties’ shareholding … is the earlier referred to $150,000 per percentage point … The wife claimed in respect of this offer that the husband was seeking to undersell a substantial asset of the parties. …

[32] There is no conclusive evidence before me … to indicate that the husband is attempting to deliberately undersell a[n] … asset of the parties’. …

[39] I am of the view that the shareholding need not be sold until the valuation is fully tested at trial … [A]llowing the shareholding interest to be sold would … “clearly cause irreversible prejudice to the wife’s ongoing financial position”.’


Craig Nicol and Keleigh Robinson are co-editors of The Family Law book and Accredited Specialists in Family Law.