REPORTED CASES DE SAXE O’NEILL FAMILY LAWYERS HAVE APPEARED IN
Mayhew v Fairweather [2022] FedCFamC1A 53
Appeal Division of the Family Court of Australia (Appearing for the Respondent)
APPEAL – FAMILY LAW – PROPERTY – Appeal from final property settlement orders – Whether the primary judge erred in taking into account the husband’s defective disclosure when assessing contributions – Inadequacy of reasons – Whether the primary judge erred in “double counting” the value of a notional asset under s 79(4) and under s 75(2) of the Family Law Act 1975 (Cth)
APPEAL – FAMILY LAW – COSTS – Appeal allowed – Matter remitted for rehearing – Costs ordered in a fixed sum in favour of the appellant.
Warriner v Warriner [2020] FamCAFC 33
Appeal Division of the Family Court of Australia (Appearing for the Respondent)
APPEAL – FAMILY LAW – PROPERTY – Where the primary judge determined adjustments as 52.5 per cent to the wife and 47.5 per cent to the husband – Where the wife argues that the adjustment was not reflected in the superannuation orders – Where the wife sought to add back property into the property pool – Discretion correctly exercised by the primary judge – Conclusion drawn by the primary judge not plainly wrong – Parties agreed that the wife should receive an additional sum of $63,146.88 from the joint superannuation fund – Appeal allowed in part – Discretion re-exercised.
APPEAL – FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful bar the adjustment in the superannuation split – Wife to pay the husband’s costs of the appeal in a fixed sum.
Beaton v Beaton [2020] FamCAFC 97
Appeal Division of the Family Court of Australia (Appeared for the Respondent)
FAMILY LAW – APPEAL – PARENTING – INTERIM RELOCATION – Appeals against interim relocation orders and dismissal of a stay of those orders – Conduct of proceedings – Nature of the orders made – Interim findings of fact – Weight challenges – Proper consideration given to relevant matters – Findings open on the evidence – Adequate reasons – No error of fact or law established – Appeals dismissed – Costs ordered in a fixed sum.
Trask & Westlake [2015] FamCAFC 160
Appeal Division of the Family Court of Australia
FAMILY LAW – APPEAL – PROPERTY – contributions found to be equal despite husband’s post-separation earnings of $9 million. Trask & Westlake concerned a 13 year marriage in which the parties adopted traditional roles. They had four children, and an asset pool of $7 million. In the three years since separation the husband secured corporate employment. He earned a taxable income of $9 million (including a $2.5m retrenchment payment). The parties’ overall contributions were assessed by Aldridge J as equal, an adjustment of 10 per cent being made in the wife’s favour under s 75(2). The Full Court (Thackray, Ryan & Murphy JJ) upheld that division on appeal by the husband, saying (at [6]):
‘The foundation for his Honour’s assessment that the parties’ post-separation contributions were equal (and, thus, … equal overall) is … that the wife’s significant indirect financial contributions and contribution to the welfare of the children were a “direct non-financial contribution to the husband’s ability to be employed (ultimately) by Company E and its associated benefits” and, in that respect, her contributions were a continuation of the roles … the parties had each undertaken in this … marriage … ”
The husband’s counsel cited Gollings & Scott [2007] FamCA 397 where it was held that a party had ‘no further obligation’ to ‘continue to accumulate assets’ post-separation & is ‘in a sense free to do with his income as he please[s]’, to ‘get on with his or her life independent of the other’. The Full Court in the present case, however, said: ‘That statement was made within a specific context, namely the consideration of whether particular funds should be “added back” as against the husband. Nothing said by this Court in Gollings suggests that taking due account of those factors excludes consideration of contributions to property acquired by one party subsequent to separation.’ In response to counsel’s calculation of the percentage of the pool that the ‘the husband’s post-separation cash injections’ represented, the Full Court said ‘[t]hat can be a useful measuring stick, but the assessment of contributions remains “a matter of judgment and not of computation”’ having regard to ‘the extremely important contributions made by the wife in maintaining a home as a single parent to four children dealing with the separation of their parents’ which were ‘not susceptible to any such mathematical calculation’. The Court added that ‘the husband had arrived at his position with Company E by dint of his talents, dedication and hard work but also by … the contributions made by the wife across the years preceding that employment’.
Pascot & Pascot [2011] FamCA 945
Appeal Division of the Family Court of Australian (Appeared for the Appellant)
FAMILY LAW – PROPERTY SETTLEMENT – Financial Agreement – Whether a binding financial agreement existed – Where one party had received incorrect legal advice relating to the binding nature of the agreements – Whether the agreement was void, voidable or unenforceable due to mistake – Whether the agreement was void, voidable or unenforceable due to undue influence – Whether the agreement was void, voidable or unenforceable due to unconscionable conduct – Whether the Agreement could be set aside due to a material change in circumstance
FAMILY LAW – PROPERTY SETTLEMENT – Superannuation Agreement – Whether there was a valid superannuation splitting agreement – Where the Agreement was made prior to the commencement of the 2002 Amendments to the Family Law Act inserting superannuation splitting agreements.
