Family Law Case Notes By Craig Nicol & Keleigh Robinson

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

In 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 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. ( … )

[21] … Although the father disavowed any reliance upon apprehended bias, it seems to me that that is … what lies behind his assertions of loss of confidence in Dr B. … [22] … The … fact that [Dr B] … considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father’s habit of viewing material ( … ) [26] I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. ( … )

Property – Husband appointed codirector of corporate trustee but failed in his application for removal of the wife as director

In Crawford [2021] FamCA 15 (29 January 2021) Berman J allowed a husband’s interim application to be made a director of G Pty Ltd, which was a corporate trustee of a family trust and owned land associated with the husband’s family’s business operations. The husband sought orders compelling the removal of the wife as director, arguing that the company required finance for the development of the real property it owned so as to sustain business operations, which would ordinarily be sourced from his father, but where his father had refused to assist financially so long as the wife participated in the business structure.

The wife consented to the appointment of the husband as co-director, but opposed her removal as director. The wife also sought that she be appointed as co-director of another corporate trustee, V Pty Ltd, which owned shares in the family business.

The Court said (from [48]):

“[The husband’s father] … considers that G Pty Ltd would not be able to obtain commercial finance whilst the wife remains in control [and further] … considers that the finance arrangements would in any event be unsuccessful unless he was prepared to commit $1 million in support of the finance application. He is not prepared to do so whilst the wife remains involved.

[51] There has not been evidence presented that would support the financial viability and implication for [the business] … and therefore the husband’s direct and indirect interest in same. [52] There is potential merit in the position adopted by each of the parties. In the absence of evidence the Court has no ability to determine, whether if orders are made as sought by the husband, they will have the effect of preserving the value of the assets of the parties. [53] I do not ignore the potential for difficulty to be created … [difficulties for the business] in the absence of a suitable business venue development ( … ) [55] I accept that at this stage there is not sufficient evidence that would enable the Court to make an informed decision and on that basis whilst I consider there is merit in the husband becoming a co-director of G Pty Ltd, I am not prepared to order the wife’s removal as a director …”

The parties were directed to appoint the husband as co-director of G Pty Ltd and also directed to appoint the wife as co-director of V Pty Ltd. B

The execution of 'Michael Magee - endnotes continued

SA, Saturday, 1 September 1894, page 7), <https://trove.nla.gov.au/newspaper/ article/92313628?searchTerm=Michael%20 magee&searchLimits=>. 31 The Observer, ‘‘Horrific’ end to execution’,

The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman

Hanged by Caroline Overington, published by HarperCollins.), <https://www. gladstoneobserver.com.au/news/womanshorrific-end-after-botched-execution/3461938/>. 32 The South Australian Gazette and

Colonial Register - 19 May 1838, South

Australian Gazette and Colonial Register (19 May 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=> 33 The Observer, ‘‘Horrific’ end to execution’, The Observer (Gladstone, QLD, 9

July 2018, an edited extract from Last

Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 34 The State Library of South Australia, SA

Memory - First Execution in South Australia, in 1838, for shooting Sheriff Smart’, Memory , South Australia: past and present, for the future Website (Adelaide South Australia). <https://www.samemory.sa.gov.au/site/page. cfm?c=3224>.

The website states:

Chiefly remembered as an artist, Skipper combined an enthusiastic approach with acute observation and a natural and cultivated skill with some aesthetic sensibility. His sketches and paintings of the landscape, the flora, fauna, the Aboriginal people of South Australia, and of the streets, buildings, every day life and notable events of Adelaide are of some artistic and great historical interest. Skipper retired in 1872 and lived on a small pension on his farm at Kent Town. He died 7 December 1883. He was survived by three sons and four daughters; his eldest son, Spencer John (1848-1903), was a journalist and satirist in Adelaide (Radford,

R, Hylton, J. Australian colonial art : 18001900 Adelaide : Art Gallery Board of South

Australia, 1995). 35 Ibid. 36 The State Library of South Australia walking tours, ‘I Shot the Sheriff - The first hanging and a Government House murder’, Website, (South

Australia). <https://331.myt.li/tours/70 I 030414/stops/1838154190/index.html>.