FAMILY LAW CASE NOTES
Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK Financial agreements – That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9 n Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence. The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor. The Full Court said (from [31]): “It is the husband’s contention that … in circumstances where the wife’s solicitor advised her against signing the BFA …, the wife acted on her own free will. ( … ) [35] ( … ) Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA. [36] ( … ) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] ( … ) [64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different
I
36 THE BULLETIN May 2021
thing for a person to have sufficient knowledge and understanding adequately to protect their own interests ( … ) Costs – No error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live in carer had sought a declaration as to the existence of a de facto relationship and property orders. The Court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100,000. The Full Court said (from [14]): “The initiating application … was signed by [the applicant] …. At line 27, a cross indicated that a date of final separation was ‘[n]ot applicable’ ( … ) [27] In her affidavit … [the applicant] … said: ... I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home ( ... ) ... [The deceased] did not voluntarily leave me but was forced to... [28] … [D]ifficulties emerge from this evidence. [29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship ( … ) [30] The second is identifying the date of the breakdown of the … relationship … [31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.( … )
[79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.” Children – Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert In Behrendt & Cadenet (No. 2) [2021] FamCA 19 (29 January 2021) Harper J dismissed a father’s interim application in a parenting case for the appointment of a new family report writer in respect of a 10 year old child, where the family report writer, Dr B, referred in an interim report to the mother’s allegation that she had in her possession a large amount of pornography downloaded by the father which, when appraised, might become a finding of paraphilia on the father’s part ([3]). A USB stick of “about 500 professionally shot stack static images of young attractive women” and “pornographic digital movies” was provided to Dr B who recommended that reports be obtained from an IT expert (as to viewing patterns) and a paraphilia expert ([5]-[6]). The Court said (from [16]): “The father … argued that the USB materials have negligible probative value. … [17] … [T]he father contended that the material Dr B had … seen may have contaminated his opinion … he may … have prejudged factual issues such as the ownership of the pornographic material and the nature of the father’s viewing patterns ( … ) [20] I reject the argument based on the assertion that the USB materials have negligible probative value. … [I]t is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. ( … )
