FAMILY LAW CASE NOTES
Family Law Case Notes KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – LEAVE GRANTED TO ADDUCE EVIDENCE FROM AN ADVERSARIAL EXPERT – COURT ERRED BY CONSIDERING $11 MILLION DIFFERENCE BETWEEN VALUATIONS IN ISOLATION
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n Neales [2022] FedCFamC1A 41 (28 March, 2022) the Full Court (Aldridge, Tree and Schonell JJ) considered a husband’s application for leave to adduce evidence from an adversarial expert. The single expert, Mr B, had valued real properties at between $33.835 million and $34.190 million; whereas the husband’s expert, Mr D, had valued the properties at $22.465 million. The Full Court said (from [25]): “The primary judge concluded that contrary to the submissions of the husband, there was not a substantial body of contrary opinion, but rather an alternate opinion. (…) [27] … The primary judge observed that to permit another expert just because of a divergence in value, even if substantial, was inconsistent with the purpose of the [Rules] … (…) [41] The husband argued … that the following matters, which taken collectively, satisfied as another special reason: (1) that [each expert] … adopted alternative methodologies … ; (2) that matters were known to Mr D that were not known to the single expert. (…) (3) that … [if] the significant difference in value of over $11 million … arises as a result of a difference in methodology and information, it warrants consideration as another special reason; and
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(4) … [I]t is the husband who will be left with the consequences of the findings as to value … [42] … We are satisfied that the primary judge did not consider these matters in aggregate … but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.” The Full Court granted leave for the husband to rely on his adversarial expert and costs certificates were ordered.
CHILDREN – SERIOUS CONTEMPT WARRANTS SIX MONTH IMPRISONMENT – LIBERTY TO PURGE CONTEMPT BY DISCLOSING WHEREABOUTS OF CHILD In The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22 (25 January, 2022) Gill J sentenced a mother for contempt, where she failed to provide information about the whereabouts of her son, after she handed him to a friend. In breach of a recovery order, the mother said that she could not locate him. Gill J said (from [8]): “In sentencing [the mother] I accept that to find facts … that are adverse to her I must find facts beyond reasonable doubt. I accept further that where there are matters that are … positive for [her] then they need only be found on the balance of probabilities … She has demonstrated that she suffers from some cognitive difficulties … [S]he is vulnerable to being used by others … [I]t has not been shown that the offending conduct is connected to … that vulnerability … [9] … [T]here are a number of … matters that I am to take into account,
which include … personal characteristics … remorse, the seriousness of the contempt, whether she has purged the contempt, the effects of the contempt, issues involving retribution, personal deterrence and general deterrence … [O]f particular importance is the enforcement of orders, punishment, … deterrence and the vindication of the Court’s authority … (…) [15] … [T]he seriousness of the contempt calls for a custodial disposition … I consider that [the mother] ought to be given the option to purge her contempt and if she provides … the information that she has about X’s whereabouts then she may be released … It is not adequate to suspend the term … Suspension is typically … on terms that a person enter into security or an agreement … to be of good behaviour. Where [the mother] has not disclosed the information that she holds about X … she is not of good behaviour … (…) [17] The circumstances of this case and the purposes of sentencing for contempt will be sufficiently met by a term of six months, on terms that permit [the mother] to relist the matter … to disclose the information about X’s whereabouts …”
PROPERTY – TREATMENT OF INITIAL CONTRIBUTIONS IN FOUR YEAR RELATIONSHIP – SPECIFIC AND GENERALISED ALLEGATIONS OF FAMILY VIOLENCE HAD A SIGNIFICANT ADVERSE EFFECT UPON CONTRIBUTIONS In Ferman & Lapham [2022] FedCFamC2F 415 (5 April, 2022) Judge Kearney considered property adjustment
