Michael Emerson

Accredited Family Law Specialist

Emerson Family Law


In Marriage of Krassas [2005] FamCA 803

The Trial Judge had assessed the wife’s contributions in terms of a range rather than a fixed percentage. The wife had derived a large inheritance late in a 17 year marriage.

The Trial Judge, Justice Watt, had assessed the wife’s contributions as being in the range of 75-85% rather than a fixed percentage amount.

On appeal, the Full Court held that a Trial Judge should generally determine the contribution by each party as a fixed percentage, particularly where the contributions to assets and the impact of them on the parties’ overall asset worth can be identified.

The Court held that while the opportunity to depart from the staged process remains open to a Trial Judge under s.79(4), alternative approaches have dangers and should be avoided, subject to there being reasons provided for such a departure.

It seems that in this case, despite the evidence as to the overwhelming contributions by the wife, the Judge allowed himself to be distracted by what might be unfair for the husband after a 17 year marriage.

Long Marriage – “Unequal Contributions”

RWW v JWW [2006] Fam CA 1288

The case involved a long marriage of 33 years with the parties having two adult children at the time of the hearing.

Assets acquired during the marriage were met from income produced from businesses operated by the parties. The parties had also established a trust, the income from which was used for family purposes.

At first instance Carmody J had described the wife’s case as:

  • “…an impressive array of friends, acquaintances, employees and business associates in support of her case that the husband was a basically lazy unmotivated and unsupportive husband, who played little or no useful role in business or family matters ”.

In assessing the wife’s contributions at 70 : 30 Carmody J concluded as follows:

[118].  It is not a special, exceptional or even stellar performance as a superwoman balancing business responsibilities with home duties that distinguishes her s.79(4)(a), (b) and (c) contributions from those of the husband, but his significantly inferior input in both of those realms.  In my assessment, the husband’s contribution, both quantitatively and qualitatively, is overshadowed by the wife’s. This is simply an acknowledgement of a reality that must be reflected in the percentage division and final orders to achieve a fair or just and equitable result. It is not a form of reverse discrimination on the basis of gender. Nor does it give preferential treatment to one role over the other. His performance in his role, in my view, fell well below par. The outcome would have been the same if the shoe had been on the other foot.

His Honour Justice Carmody had found that the wife’s contributions outstripped those of the husband’s to such an extent that the justice and equity of the situation would not be met in his Honour’s opinion unless she received or retained at least 70 per cent of the available net assets before adjustment.

The husband argued on appeal that the contribution of the parties during the marriage of 33 years expressed as a percentage as to 70/30 per cent in favour of the wife was outside the generous ambit within which reasonable disagreement is possible and plainly wrong based on the following facts:

  1. It is common ground that the parties each came to the relationship with no property of substance;
  2. Two children were born to the parties and grew to independent maturity during the parties’ co-habitation;
  3. There is no relevant ‘external’ benefit received by either party during their co-habitation;
  4. There is no assertion of any ‘special contribution’ by the wife;
  5. There is no finding of any ‘negative contribution’ by the husband;
  6. Each of the parties worked, though in separate spheres, in their joint interests; and
  7. The parties married ‘for better or worse’.

The Full Court, however, held that “in the absence of a successful challenge to the primary findings of fact, we can only conclude that his Honour’s assessment of the parties’ contributions was open to him”.

This case is interesting as normally in such a long marriage where the parties each worked in a family business and applied the profit from the business to acquiring matrimonial assets, we would advise our clients that contributions would ordinarily be regarded as equal.

The nature of the corroborative evidence called by the wife is also interesting.

Orders Exceeding the Pool of Available Assets

Gollings and Scott (2007) FLC 93-319

This case involved an appeal by the husband against property settlement and spousal maintenance orders.

The husband submitted that an order where the wife received the home unencumbered effectively meant that the wife received more than 100% of the pool of assets. The husband submitted that such an order was beyond the court’s power or if within the court’s power unjust.

The Trial Judge included a post separation contribution by the husband to his de facto partner’s property as an asset in the pool of property.

Issues arose in relation to add backs and failure to include add backs which one or other party sought to have included, such as the wife’s sale of her motor vehicle prior to trial.

Reference was made to the Full Court in Chorn and Hopkins where after an extensive examination of the authorities relating to paid legal fees, the court concluded that whether or not they were to be added back into the pool of assets available for division was ultimately a matter for the discretion of the Trial Judge.

On appeal the court held that the Trial Judge had failed to adequately explain her reasons for including the husband’s contribution to his new partner’s property as an add back.

In relation to orders that exceed the pool of available assets, the court held that the case law establishes that generally an alteration of parties’ interest in property under s.79 is to be made out of their identified property at trial. Although the inclusion of add backs can have the effect where an order giving a party the whole of the pool, effectively gave her more than was actually there.

Whether Changed Circumstances Rendered s.75(2) Adjustment Insupportable

Van Ballekom v Kelly [2005] FamCA 853

The husband appealed against order for property settlement made by Purdy J in October 2004. The wife had breast cancer and the evidence of her treating doctor at the trial was that she had a mean survival time of 12 months. The wife died pending the hearing of the appeal.

The Trial Judge considered the matters referred to in s.75(2), noting them to be “difficult”. He concluded that, but for the wife’s short life expectancy, there would be, “a very big adjustment for s.75(2)” in her favour. In fact he made an adjustment of 5% in her favour on the basis of the “difference in their incomes”.

The husband appealed, arguing that the Trial Judge had erred in failing to make an adjustment in respect of s.75(2) factors in his favour, either on the basis of His Honour’s reasons or by further evidence namely the death of the wife.

The Full Court held that the further evidence that the wife is now deceased does “demonstrate that the order under appeal is erroneous” in that the s.75(2) adjustment in favour of the wife cannot now be sustained and nor could the failure to make a s.75(2) adjustment in the husband’s favour in the circumstances which arose after the wife’s death.

Domestic Violence – Kennon

S v S [2005] FLC 93-246

Husband’s appeal against property orders. An issue on appeal was the Trial Magistrate’s treatment of the wife’s allegations of domestic violence perpetrated by the husband, as a factor relevant to assessment of contribution. The wife was a legal secretary up until the birth of the first child and the husband was employed as an air traffic controller throughout the relationship.

FM Rimmer gave the wife an adjustment on contributions of 5% for Kennon type domestic violence.

On appeal, the husband’s Senior Counsel submitted that the wife’s evidence fell short of establishing the requisite “course of violent conduct which is demonstrated to have had a significant adverse impact upon the other party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous that they ought to have been”.

In dismissing the appeal, the Full Court held that the term “course of conduct” is a broad one and that conduct need not be frequent to constitute a course of conduct, although a degree of repetition is required. Further, that a 5% adjustment in favour of the wife taking account of the husband’s violence towards her was not shown to have fallen outside a reasonable exercise of the Trial Magistrate’s discretion.

In this case, the conduct alleged against the husband apparently comprised “arguments or incidents” occurring about twice yearly.

Commenting on the case in Current Family Law, Sarah Middleton noted that this case is significant as seemingly the only reported case since in Marriage of Doherty [1996] FLC 92-652 to recognise an increased contribution by one spouse on account of domestic violence suffered at the hands of the other spouse and considers that in such circumstances it was regrettable that the Full Court did not take the opportunity to elucidate further on the Kennon Principles and their application.

There are a number of unreported decisions involving the application of the Kennon Principles and these include the following:

  • Kennedy v Kennedy [1999] FamCA 425;
  • Addison and Addison [Nicholson CJ] 23.11.98;
  • Morgan and Morgan [1999] FamCA 31;
  • Khan and Khan [Waddy J 27.03.99];
  • Eggleston and Eggleston [O’Ryan J 15.06.99];
  • Orr v McDougall [Faulks J 02.07.99];
  • X and X [Coleman J 06.08.99]; and
  • Byrnes and Barnes [Chisholm J 07.02.00].

Extracts of these decisions were collated by my colleague Stephen Page and included in an addendum to his paper entitled “Kennon Update” prepared for the Queensland Law Society in May 2003. Doubtless there have been numerous other unreported decisions involving the Kennon principles since that time.

Long Service Leave Entitlement

M v M [2005] FamCA 1334

The case involved two teachers. When dealing with financial resources, the trial court omitted to identify the husband’s entitlement to nine months paid long service leave. The wife contended on appeal that the husband’s paid long service leave entitlements ought to have been referred to and taken into account under s.75(2) of the Act.

On appeal, Warwick J noted that counsel for the wife acknowledged the evidence that the husband had not made up his mind whether he would take his long service leave entitlements as a lump sum or as paid leave and there was no evidence about what the husband intended to do if he took his long service leave as paid leave, in particular, there was no evidence that he intended to turn the period to his financial advantage.

His honour looked at the authorities and particularly the Full Court decision in Gould and Gould (1996) FLC 92-657 where at 82,774 the Court said:

  • As a matter of principle, we find it difficult to accept that an entitlement to substantial long service leave may only be regarded as a financial resource when the employee spouse is likely to retire and receive a lump sum payment in lieu of leave taken. The ability to take a lengthy period off work, but still be paid a normal salary during that period, may constitute a financial resource in at least some circumstances. In a given case, for example, that ability may enable the relevant party to undertake other temporary employment, pursue a course of further education or retraining, or even commence or develop a business during such paid leave, none of which would otherwise be available to him or her. In such circumstances such a facility would be likely to give that party an economic advantage which can properly be categorised as a financial resource.
  • In this case, however, our attention has not been drawn to any evidence which would lead to a conclusion that the husband would be likely to engage in any of the sorts of activities which we have identified above in the event that he took his 12.4 weeks of accrued long service leave, or that he would even wish to do anything other than merely enjoy a period of leave. In those circumstances we are unable to conclude that his Honour erred in failing to treat this long service leave entitlement as a financial resource sufficient to call for an adjustment of the parties’ property interests in favour of the wife.”

His Honour concluded that “In short, whether weight should be given to a leave entitlement when considering section 75(2) factors depends on the evidence”.

Whether Wife Should Receive Her Entire Entitlement in Non-Superannuation Assets

Levick and Levick (2006) FLC 93-254

The parties made competing Property Adjustment Applications following a 22 year marriage.

The wife’s Counsel submitted that all her entitlement should come from non-superannuation assets because of the cost to her of rehousing. The husband’s Counsel submitted a mix of assets including superannuation was appropriate and that the husband also needed to rehouse to a standard appropriate for the children to stay with him.

Moore J held the appropriate arrangement was for the wife to receive part of her entitlement in superannuation and part in non-superannuation assets.

Doherty and Doherty [2006] FamCA 199

In competing Property Applications the Federal Magistrate divided the property of the parties 55/45 in the wife’s favour ordering that she receive her entitlement by retaining the family home with the husband to receive most of his entitlement in superannuation.

Although dismissing the appeal in the absence of evidence in support of the Orders sought by the husband and in the absence of submissions on his behalf in relation to the Form of Orders, the Full Court held that consideration of the “mix” of the assets which each party will be left as a result of proposed Orders would seem a necessary, if not critical, factor in determining the justice and equity of proposed Orders in each case in which superannuation interests are involved.

Bifurcation of s 79A Applications and Summary Dismissal

Gitane and Velacruz (2007) FLC 93-309

This was an appeal by the husband against orders that his s.79A application be dismissed and that a stay application be vacated.

The husband sought to resist enforcement of earlier orders by the wife.

The wife applied to bifurcate the husband’s s.79A Application to determine whether any grounds existed to set aside the original order.

The trial judge summarily dismissed the husband’s Application and the husband appealed.

The husband was successful on appeal.

The court held that the trial judge seemed to make it abundantly clear that it was a case in which bifurcation was appropriate, but then proceeded to summarily dismiss the husband’s application although there was no such application pending.

On appeal, the court held that, effectively, the wife’s application was for bifurcation of the s.79A Application on the basis that if the first step in the 79A Application of showing that a ground for setting aside could not succeed, then it would be inappropriate to put the parties to the expense of having to prepare what would be a fresh s.79 case.

The court looked at the principles to be applied in an application to summarily dismiss and Kay J paraphrased the salient points as follows:

  1. That relief for summary dismissal is rarely and sparingly provided;
  2. That it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
  3. That it is not enough to attain summary dismissal to show that it is a weak case;
  4. That if there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the court will allow the party to reframe it’s pleading; and
  5. That one only summarily dismisses if it is clear that the case is doomed to fail.

In this case, the court said that, looking at the case outlined on the husband’s material, it could not conclude that his case was doomed to fail nor that it was appropriate for the Trial Judge to reach that conclusion.

Informal Agreement Followed by Subsequent Proceedings

DW & GT [2005] Fam CA 161

This was an appeal against orders made by Bell J in 2004 dismissing the wife’s application for property settlement.

The parties had effected a division of their property in 1997 through an informal agreement. At trial before Bell J, the wife contended the earlier division amounted to a ‘partial property settlement’ while the husband contended the agreement was intended to finalise the parties’ financial arrangements. The matter was complicated by the enactment of the superannuation reforms.

His Honour Justice Bell said where an agreement had been entered into, it could not be binding upon the court but evidence of what the parties considered to be fair at the time of the agreement.

On the facts his Honour considered the wife was adequately compensated at the time of the agreement in 1997 and dismissed the wife’s application.

The basis of the appeal was that Bell J had failed to apply the law at the date of trial to the assets at the date of trial.

In determining the matter and allowing the appeal the Full Court set out the following principles:

  • [39].     Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s.79 for an alteration of property interests, the Court must determine the application on its merits having regard to the factors as set out in s.79(4) as they exist at the time of the hearing of the application under s.79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made.  There is no threshold test, before embarking upon the s.79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force.  The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s.79 at the time of the hearing.
  • [40].     In determining s.79 Applications in circumstances where there has been an earlier agreement, it will often be necessary to consider what was the value of the parties’ assets at the time of the agreement, what their various contributions were to that time, and what might have been an appropriate s.75(2) adjustment.  A consideration of these matters might well be necessary in order to provide a background to the parties’ understanding of what was a just and equitable settlement at the time.  However, and perhaps more significantly, it would generally be necessary for the Court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed.

The Full Court considered that his Honour had also erred in not considering all the relevant s.75(2) factors as they applied at the date of trial rather than in 1997.

Bias, Summary Dismissal, s.79A Applications

DBL & GJL [2006] Fam CA 1289

This appeal involves discussion of issues of bias, summary dismissal and s.79A Applications arising from the wife’s persistent efforts to reopen a decision of Judicial Registrar Jordan as he then was in 1994.

The matter ultimately came before Carmody J at first instance who refused to disqualify himself on grounds of alleged bias and, having concluded the wife’s application had no merit, proceeded to summarily dismiss it, in so doing commenting that it was “a text-book case for the exercise of the summary dismissal power”.

At paragraph 106 of his judgment at first instance, Carmody J comments as follows:

  • [106].  The wife, in my opinion, is a woman who is desperately seeking to redress what she perceives as a wrong resulting from the 1994 property orders. She has a sincere but misplaced belief in the moral justice of her cause. She does not feel that she is being heard by the courts and has a genuine (but unjustified) sense of grievance with, what she regards as, a faulty legal system operated by exasperatingly inept people. She wants no more than her due. She has no ulterior motive or collateral purpose. In her mind justice (or her version of it) has failed her. She refuses to surrender in the face of mounting obstacles. Like Don Quixote, she will neither be deterred nor denied. She is, however, tilting at windmills and has to realise that the time has come to lay down her arms and for hostilities to cease.

Having dismissed the wife’s application, his Honour then went further and restrained the wife from commencing any further property proceedings without leave of the court.

The Full Court looked at the principles applicable to the issue of bias including the  majority judgment in Johnson v Johnson (2000) 201 CLR 488, where the High Court said the test was:

  • “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.

The Court could not see any appellable error in Carmody J’s judgment and dismissed the appeal.

Admissibility of an unread Affidavit

Miller & Miller [2004] FamCA 1374

This involved an evidentiary ruling in the course of a property dispute between the parties.

The wife’s mother swore an affidavit in support of the wife’s case but was unavailable for cross-examination because of illness.

The affidavit was read in part apart from one particular paragraph which the wife’s counsel did not seek to adduce as part of the evidence. Counsel for the husband, on the other hand, sought to tender that paragraph.

In refusing the application, Rowlands J held that a party who files an affidavit is not obliged to read it and cited Leaders Shoes (1967) 86 weekly notes, part 1 New South Wales 388 where it was stated “that an Affidavit made by a person who is not a party which has not been read in the case of the party who filed it, cannot be tendered against the party”.

Furthermore, in the particular circumstances applying, his Honour did not consider that justice required that the relevant paragraph 17 be before the court to qualify other matters in the Affidavit which are presently part of the evidence.

Threshold Test for Spousal Maintenance

McCrossen and McCrossen [2006] FamCA 868

This matter involved proceedings for property settlement and spousal maintenance. The parties had cohabited for about 13 years with two children aged 9 and 6 respectively. The husband had held senior positions in the public service but was on sick leave at the date of trial. The wife had not been in paid employment outside the home since 1996 but had obtained a university qualification in 1991 and had some previous work experience in the public service. She stated in her Affidavit that she intended to use the time when she was not working to obtain a teaching qualification. The husband produced expert evidence from a recruitment consultant suggesting the wife could get a job in the public service at a salary higher than she would receive after retraining as a teacher.

The trial judge held that the wife had not overcome the threshold test under s.72. He was not satisfied that she was unable to maintain herself.

In dismissing the appeal on the spousal maintenance issue the full court held that the trial judge was obliged to consider:

  • Whether employment was available to the wife having regard to the practical realities of her age, experience and confidence having been out of the workforce for a number of years; and
  • If so, the level of income the applicant might earn from such employment and whether in the circumstances of this case such income fell below adequate support and thus met the requirements of s.72.

The court held that s.72 requires that a party establish that they are unable to support themselves, not that they are unable to support themselves in a particular area of endeavour as opposed to another, which may be available to them. “In this case the wife’s own evidence enabled his Honour to conclude that she had not sought and did not want the kind of work that she had done previously albeit that such work may have been available to her with a relatively short period of training”.

The court on appeal did however consider that the trial judge had failed to make a sufficient adjustment to the wife under s.75(2) and allowed the appeal on this aspect, re-exercising the discretion to give her a 15% adjustment in place of the 10% adjustment allowed by the trial judge.

Injunctions to restrain disposal of property

Mullen and De Bry [2006] FamCA 1380

While property proceedings were pending, the husband became aware that the wife had placed the former matrimonial home (transferred to her post-separation) for sale. The husband sought an interim injunction that the wife retain an amount of not less than $200,000 from the sale and invest that amount pending the finalisation of the property settlement. The husband sought such an order primarily on the basis that the wife was located overseas and that any property settlement order in his favour could be defeated by the wife disposing of the sale proceeds offshore. The Federal Magistrate relied on the Full Court decision of Waugh (2000) FLC 93-052 to dismiss the husband’s application on the basis that there was no evidence on the wife’s part of a scheme to defeat judgment by asset disposition.

In the instant case the husband on noticing an internet advertisement for the sale of the property had instructed his solicitors to seek an undertaking from the wife to retain $200,000 but such undertaking was not forthcoming.

The Federal Magistrate did not consider the failure to give an undertaking sufficient, without more, to warrant a finding “that the failure demonstrates a real risk of asset dissipation, or a scheme to defeat judgment by asset dissipation”.

On appeal the court in allowing the appeal did “not consider that the Full Court in Waugh  intended to prescribe as a “fundamental” or “threshold” question whether a scheme to defeat judgment exists, to be answered in the affirmative on the balance of probabilities in every case, before an order preserving property is made”.

The court held that “nowhere in Waugh did the court indicate that it was conscious of making “new” law, or formulating “new” guidelines, nor was there any discussion of earlier Family Court decisions in terms that indicated departure from them, or even development of them”.

The court said they did not think that Waugh properly understood, lays down any incorrect principles.

Binding Financial Agreements

Section 90G of the Family Law Act sets out the requirements necessary for a Binding Financial Agreement.

Different approaches have emerged in relation to interpretation of s.90G and particularly the degree of stringency with which the requirements for a Binding Financial Agreement set out in s.90G(1)(b) of the Act are applied.

Two recent cases highlight the differences in interpretation.

J & J [2006] FamCa 442

In this case, Collier J had to determine whether a document described as a ‘Binding Financial Agreement’ was in fact binding.

The wife sought to enforce the agreement as though it were an order of the court. The husband sought dismissal of the wife’s application for enforcement.

It was asserted for the husband that the agreement sought to be enforced by the wife had two deficiencies, firstly that it did not contain a statement in the Agreement to the effect that the party to whom the statement related had been provided with the requisite independent legal advice and secondly the Certificate annexed to the Agreement contained incorrect wording.

His Honour considered that the words ‘if and only if’ in s.90G(1) are words of real significance and import a requirement for a level of compliance, if the agreement is to be binding, that is clearly a standard or level above and beyond what might be described as substantial compliance.

Furthermore “something approaching full compliance, or something that if looked at in a less than strict light, might come close to establishing compliance, is not enough”.

His Honour took the view that full compliance was necessary and that any failure to comply deprived the Agreement of being binding upon the parties.

Accordingly in this case the matter would now proceed as a Section 79 Property Application rather than enforcement of a Binding Financial Agreement.

Black and Black [2006] FamCA 972.

His Honour Justice Benjamin took a different approach in Black and Black [2006] FamCA 972.

The case involved an application by the husband for orders that a Binding Financial Agreement entered into between himself and the wife be declared void for non compliance with s.90 G of the Family Law Act or if not void, that the Agreement ought to be set aside under s.90 K of the Act. The husband then sought consequential orders for adjustment of property under the Act. The wife sought dismissal of the husband’s application.

The husband submitted that the Financial Agreement is void or should be set aside because the legislative basis of Financial Agreements under part VIIIA should be construed strictly because they are unique, in that, if binding, they exclude courts from exercising powers under part VIII of the Act.

Counsel for the husband submitted the Agreement was not binding and therefore void, because the provisions of s.90G(1) had not been complied with in two areas. Firstly that it was not properly certified as there was a change to the terms of the Agreement after a Certificate was given, by the husband’s then solicitor and that under ss.90G(1)(b) there needed to be a new Certificate. Secondly, the sub-section required that the Certificate needed to be annexed to the Agreement and in addition a statement to the effect required by ss.90G(1)(b) needed to be included in the body of the Agreement.

There were other grounds relied on by the husband including one that circumstances had arisen since the Agreement was made that made it impracticable for the Agreement or part of the Agreement to be carried out.

His Honour Justice Benjamin did not agree with the husband’s submission that with such agreements there should be strict compliance with the statutory regime and that such agreements should be treated differently and the general principle that parties are generally bound by their agreements, should not apply.

His Honour considered that strict interpretation takes away the legislative meaning and preferred the purposive approach whereby legislative enactments are construed to give effect to their purpose.

His Honour noted that the intention of part VIIIA was to enable ordinary people to enter into Financial Agreements which will deal with property and spousal maintenance and avoid the necessity of court proceeding and if courts require strict interpretation of the legislation, then this would have the effect of making such agreements less available to the broader community.  Further that courts “should not make the legal practitioner and the parties cross all of the “t’s” and dot all of the “i’s” to enter into and give effect to Financial Agreements”.  His Honour concluded that “the Act does not create a regime of strict compliance and there is a requirement on courts to give purpose to legislation.

As to the submission by the husband that not only must the Certificate be annexed to the Agreement but that the Agreement must also contain a statement to the effect of s.90 G(1)(b), his Honour considered that adopting a purposive construction approach “there seems to be no reason why the statement contained in the Certificate is not contained within the agreement. The Certificate is annexed to the Agreement and forms part of it” and in His Honour’s view is thus “contained within the Agreement” within the meaning of s.90 G(1)(b).

In relation to the submission that the amendment to the terms of the agreement was made after the Certificate had been signed means that the agreement is not binding, his Honour was satisfied that the independent legal advice provided by the legal practitioner “included the whole of paragraph 17 including the provision which was subsequently removed”. In other words the amendment was within the scope of the legal advice provided to the husband and accordingly there “was no need to provide a new Certificate as the existing document was adequate”.

His Honour considered that the agreement was binding having met the requirements of s.90 G of the Act.

His Honour went on to reject further submissions of the husband including ones of duress, unconscionability, impracticability and others and dismissed the husband’s application.


The decision of his Honour Justice Benjamin in Black and Black was subsequently appealed and the appeal heard by the Full Court and judgment reserved on the approach of his Honour to the Binding Financial Agreement.  The Full Court’s decision and reasons may be available by the time this paper is delivered.

Interlocutory Relief Against Third Party

Knight v Alesi and Anor [2007] FamCA 156

This case involved an application for urgent ex parte relief under the Part VIIIAA provisions of the Family Law Act which came before Her Honour Bryant CJ sitting at first instance in the Melbourne Registry on 14 February 2007.

The matter involved the husband seeking to join the wife’s mother to the proceedings in circumstances where at the Case Assessment Conference the wife conceded that she had transferred the proceeds of sale of the matrimonial home which was owned jointly by the parties to her mother who had then transferred the money to Greece.

Apart from seeking to join the grandmother, the husband sought orders for the return of the money and to caveat property owned by the wife’s mother. Her Honour declined leave to lodge a caveat but instead treated that as an application for an injunction under section 114 to restrain the wife’s mother from dealing with her interest in the property in her name until further order.

The Chief Justice found that Part VIIIAA provided that the court could make orders or injunctions under s.114 of the Act which bind the third party.

Christie v Christie and Others [2007] FamCA 125

This case which came before Cronin J at first instance in the Melbourne Registry in January 2007 provides an interesting analysis of the operation of Part VIIIAA.

The wife issued proceedings seeking both parenting and financial orders including an order that the husband be wholly responsible for and indemnify the wife in relation to all monies owing, if any, to the husband’s brother. The husband in his response sought dismissal of the wife’s Application and division of the matrimonial assets on a just and equitable basis.

Later the wife filed an Amended Application naming the husband’s brother as second respondent.

The husband then joined the wife’s parents as the third and fourth respondents seeking an order that the wife assign to the husband her right to sue her parents for funds advanced to them and other members of the wife’s family from the matrimonial asset pool.

Corporate entities which the wife alleged were controlled by the husband’s brother were joined as fifth, sixth and seventh respondent.

His Honour Cronin J noted that what was unfolding was “an internecine war between two families over money that at various points was (or was not) running through the hands of the husband and wife.”

What followed then was that firstly the fifth respondent and then the second, sixth and seventh respondents issued writs out of the Supreme Court of Victoria naming the husband and wife as defendants.

The wife then filed another amended application effectively seeking an order that neither the husband nor the wife owe any monies to the second, third, fifth, sixth and seventh named respondents or any related entities as claimed in the respective Supreme Court proceedings or otherwise. The wife also sought injunctive relief.

Counsel for the four respondents who had brought the Supreme Court proceedings argued that it was his clients’ right to proceed as citizens in their court of choice and that the Family Court had no power under Part VIIIAA to interfere with the workings of the Supreme Court.

His Honour looked at the authorities as to whether the court had power to grant an anti-suit injunction to interfere with a person taking out a proceeding in another court and is worthwhile reading on that aspect alone.

Ultimately his honour did not have to find on this issue because it was not argued, the wife instead chose to proceed to seek the requisite injunctions under Part VIIIAA of the Family Law Act.

Cronin J then undertook an analysis of the requirements under Part VIIIAA. His Honour considered that in the circumstances of the case it was reasonably necessary “to make the order because without the order the property proceedings between the husband and the wife would be effectively thwarted. He formed the view that it would be more convenient for all issues to be determined in the Family Court and the respondents would not be prejudiced.

In reaching his decision Cronin J supported the findings of O’Ryan J in H &  H & Others Unreported [2006] FamCA 167, that Part VIIIAA was a valid law of the Commonwealth and considered that the literal reading of Part VIIIAA “makes it clear that its reach is extremely wide”.

In a paper entitled “Lots of Third Parties or just a few Gatherings” delivered on the Gold Coast in July 2007, Accredited Family Law Specialist Paul Fildes refers to the reluctance of practitioners to use the provisions and their extreme wariness about seeking to join  third party financial institutions amid concern about “adverse cost consequences of taking on external financial institutions with deep pockets”.

Registrar’s Decision on Taxation of Costs – Whether Necessary for Registrar to Give Reasons

Brott and Abeles (2007) FLC 93-310

The Trial Judge, in reviewing a Registrar’s decision on an assessment of costs, found no error in the Registrar’s decision.

The solicitor argued that the trial judge had not followed appropriate appellate principles in reaching her decision in that it was not open to Her Honour to conclude there was no error of principle by the Registrar because the Registrar had failed to provide adequate reasons for disallowing amounts claimed in the solicitor’s bill.

In partly allowing the appeal, the court held that assessment of a bill by the Registrar was an administrative rather than a judicial function and that there was no legal or statutory requirement for a registrar, acting as an assessing officer, to give reasons.

The case sets out the relevant law to be applied in respect of review of decisions of taxing officers and, while concluding that there is no legal or statutory requirement for the registrar to give reasons, states that, from a practical point of view, a Judge reviewing the Registrar’s administrative decision would be assisted by brief reasons, sufficient to identify the basis of the registrar’s decision about disputed items, and says that an amendment to the rule to so provide appears necessary.

Other Current Issues

Family Law Amendment Rules

The Family Law Amendment Rules 2007 (No 1) commenced on 7 July 2007.

Included in the changes introduced by the amendments is one to provide that within 14 days of a costs assessment order, a party may request a registrar to provide reasons for a decision about a disputed item. This addresses the concerns of the Full Court in Brott and Abeles above.

A further change introduced by the amendment rules enables parties to confer with a single expert witness to clarify the expert report. The parties must agree to convene a conference with the expert and agree on arrangements and the expert advised in writing and the experts fees secured. Other significant changes have been introduced including the removal of the mandatory use of a proforma affidavit in interim applications for a parenting order and amendments to cater for the new child support reforms.

A new FCA practice direction

The Chief Justice has recently issued Practice Direction 1 of 2007 which revokes certain National Practice Directions and some Local Practice Directions and notes pertinent to particular registries. Included in those revoked is a Practice Direction of June 1995 setting out guidelines relating to the conduct of proceedings in the Duty List including the two (2) hour rule.

Melbourne Arbitration Project

A significant program is underway in Melbourne whereby the Family Law Section of the Law Council in conjunction with the Australian Institute of Family Law Arbitrations and Mediations has developed an arbitration model to assist the court to clear the backlog of cases. More than 60 qualified arbitrators have agreed to conduct arbitrations on a fixed fee basis with awards to be produced within 28 days of the conclusion of the Arbitration Hearing.


M J Emerson

Accredited Family Law Specialist

Emerson Family Law

12 November 2007