Family Law Case Notes By Rob Glade-Wright

Family Law Case Notes

ROB GLADE-WRIGHT

COSTS – INDEMNITY COSTS AGAINST SOLICITOR – CLIENT’S APPLICATION HAD NO CHANCE OF SUCCESS I n Benard & Eames and Anor [2020]

FamCAFC 47 (5 March, 2020) the Full Court (Alstergren CJ, Strickland & Kent JJ) dismissed with costs of $18,000 an appeal by a solicitor ordered to pay indemnity costs. The solicitor acted for the father in an application for a credit of third party payments made for the parties’ children under s 123 of the Child Support (Assessment) Act 1989 and an order under s 66M of the Family Law Act 1975 that he has a lawful duty to maintain his stepchildren (the children of his new partner).

At first instance Judge Bender summarily dismissed the application for having no reasonable chance of being granted. The father’s appeal of that dismissal was dismissed. Costs were subsequently awarded to the mother and the father’s solicitor was ordered to pay them. He appealed.

The Full Court said (from [35]):

“ … [I]t is clear that the application was brought on the advice of the appellant … where [he] would have well known that the application had no chance of success. Indeed, that was not only a finding by her Honour, but was also a finding by the Full Court … [which] also found that the application was brought for a collateral purpose and was, thus, an abuse of process. [36] ( … ) As was said by the Full Court of the Federal Court of Australia in Levick v Deputy Commissioner of Taxation [2000] FCA 674 at [44]:

‘ … [I]t is … important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor’s unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of a case … In the context of instituting or maintaining a proceeding … we agree with Goldberg J that unreasonable conduct must be more than acting [for] a client who has little or no prospect of success. There must be something akin to abuse of process … using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.’”

PROPERTY – ADJUSTMENT UNDER S 75(2) SET ASIDE WHERE CHILDREN WERE 16 AND 13 AND HUSBAND WAS PAYING CHILD SUPPORT

In Chan & Chih [2020] FamCAFC 31 (14 February, 2020) the Full Court (Strickland, Ryan and Tree JJ) allowed the husband’s appeal of property orders. The husband was 50 and the wife 45. The parties married in 1999, moved from South Korea to Australia in 2000 and separated in 2013 with assets totalling $4 million. Their children (16 and 13) lived with the wife.

At first instance Watts J held that there should be two pools, being the wife’s Korean assets and all other assets (including the husband’s Korean property). The wife’s Korean assets comprised a 5/14 th share in her late father’s commercial property, her interest being worth $2.2 million which also provided the wife with an income stream. The wife had also received financial support from her mother. Watts J made a 5 per cent adjustment under s 75(2)(d)-(g) for the wife calculated on the value of both pools.

The husband appealed, arguing that no adjustment should have been made. The Full Court agreed. The Court ([42]) said that his Honour gave insufficient reasons for that adjustment, continuing (at [43]-[44]):

“It is also argued that the particular factors identified … cannot justify a 5 per cent adjustment. Certainly, the financial responsibilities for the children are a highly relevant factor, but the children were aged 16 and 13 years … and the husband was paying child support as well as providing additional funds. In relation to the ‘real nature’ of the wife’s interest in the J property … his Honour made no findings as to the restrictions on the wife’s enjoyment of her interest in that property being significant enough to justify an adjustment of 5 per cent.

Further, it is significant that his Honour only referred in percentage terms to the extent of the adjustment. There is no dollar figure discussed, and no analysis by his Honour of the real effect in money terms of the adjustment. The adjustment of 5 per cent represented $203,568, and created a differential of approximately $407,000. To not take that into account flies in the face of authorities such as … Clauson [1995] FamCA 10.”

CHILDREN – FATHER’S INTERIM APPLICATION TO VARY PARENTING ORDER SO AS TO COMMENCE EQUAL TIME BEFORE TRIAL DISMISSED

In Findlay & Reis [2020] FCCA 425 (28 February, 2020) Judge Hughes dismissed an interim application by the father to vary parenting orders which had been in force for six years, by which the children (now 13 and 11) spent four nights per fortnight with him. His application sought equal time. The mother’s application for dismissal was listed as a preliminary hearing.

The father’s case was that the children had repeatedly asked to spend week about time with him ([45]), that they were sufficiently mature to have more weight given to their views and that he was in a stable new relationship ([68]).

After citing Rice & Asplund [1978] FamCA 84 and SPS & PLS [2008] FamCAFC 16 her Honour said (from [65]):

“Their Honours [in Marsden & Winch [2009] FamCAFC 152] set out a two-step process to be followed in which there was a requirement: 1. for a prima facie case of changed circumstances to have been established; and 2. for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

[66] ( … ) The mother said the only occasion on which … [equal time] was raised with her was … the result of the father’s influence and a desire by the children to meet his need to have an arrangement which is ‘fair’ as between the parents. The veracity of the competing evidence about the children’s views is not something I am able to determine on the strength of the untested affidavit material … ( … )

[79] Based on the limited untested evidence before me, I am not persuaded further litigation will likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the three significant adults. … [T]he potential benefit to be derived by the children from [any] change is, in my view, outweighed by the negative aspects the children will be required to endure for a period of more than 12 months until a trial can occur.”