Case Studies

Property (Where There Has Been Domestic Violence)

The parties were married in 1991 and separated in 2008. There were three children of the marriage, two of whom were at primary school and one of whom was in high school at the time of that final property Orders were made. The children were living with the Wife following separation. The Husband was a motor vehicle technician earning approximately $40,000 per annum and the Wife worked as a part time kitchen hand earning approximately $15,000 per annum. She also received Centrelink benefits. During the marriage the Wife was engaged full time as a homemaker, parenting the children and undertaking household duties. The parties’ net assets were valued at $520,000. Following a Final Hearing, the Magistrate ordered that there be a 70/30% division of the net assets of the marriage in favour of the Wife. She assessed the parties’ contributions as being roughly equal, however, she gave the Wife 5% loading because she had been the victim of domestic violence which had made her contributions particularly onerous. Her contributions were therefore assessed at 55% and the Husband’s at 45%. The Court then gave the Wife a further loading of 15% on account of “Section 75(2)” or “future needs” factors because of the Husband’s higher income earning capacity, the fact that the Wife had care of the three children of the marriage and the fact that the Husband was not paying any Child Support for the children.

Property (Superannuation Splitting)

The parties were married in 1992 and separated in 2009. There are no children of the marriage. The assets of the marriage consisted of:

  1. Former matrimonial home valued at $915,000
  2. Rental property valued at $550,000
  3. Holiday house valued at $520,000
  4. Self Managed Superannuation Fund valued at $55,000
  5. Company with assets of $15,000
  6. Husband’s superannuation valued at $50,000
  7. Wife’s superannuation valued at $22,000
  8. Wife’s shares valued at $11,000
  9. Wife’s motor vehicle valued at $15,000
  10. Wife’s bank accounts valued at $72,000

Total $2,230,000

In addition the Husband inherited a property valued at $125,000 post separation. The Wife’s financial contributions to the marriage were greater than those of the Husband. The parties reached agreement as to a division of the assets, i.e. that the Wife would receive 57% of the assets (being $1,274,000) and the Husband would receive 43% (being $956,000).

The Husband wished to retain the former matrimonial home valued at $915,000 as well as retaining the company through which he ran a small business. In order to facilitate the settlement, there was a splitting of all of the Husband’s industry fund superannuation entitlements in favour of the Wife. There was also a splitting of $29,000 of his entitlements in the self managed superannuation fund. This enabled the Husband to retain the former matrimonial home and the company.

Property (Marriage of Short Duration Where There is a Child)

The parties commenced cohabitation in December 2007 and separated in March 2010. There is one child of the relationship who was 14 months of age at the time of the property settlement. The Wife had been engaged full time as a homemaker and parent since the birth of the child. The Husband was a self employed tradesman and had an earning capacity of $50,000 and $100,000 per annum. Following separation the child lived with the Wife and spent time with the Husband for one night per week. The Husband made the vast majority of the financial contributions to the marriage. He owned the former matrimonial home which was not encumbered by a mortgage at the date of the marriage. At the date of separation the mortgage had been paid out from the Husband’s income. At the date of settlement the net assets of the marriage were valued at approximately $400,000 and the Wife received 25% thereof, predominantly on account of her high future needs or Section 75(2) factors.

Property (Where Settlement Occurred Several Years After Separation)

The parties were married in 1974 and separated in 1993. At the time of the settlement in 2009 there were three adult children of the marriage. When the parties separated in 1993 the children were 17, 10 and 6 years of age. The two younger children suffered from severe attention deficit hyperactivity disorder. At the time of separation the Wife left her employment as a teacher in order to care for the children. The Husband moved interstate and, while he paid Child Support on a regular basis, he did not play a significant role in caring for the children. At separation the assets excluding superannuation consisted predominantly of the matrimonial home valued at $400,000. The Husband’s superannuation entitlements were valued at $315,000. In addition, the Husband had saved $36,000 since separation and was about to inherit the sum of $125,000. The Wife had just inherited the sum of $25,000. The Wife was 59 years of age and was retired and reliant upon a weekly pension of $302. The Husband was employed and earning $64,000 per annum. In the property settlement, the Husband retained his superannuation entitlements, his inheritance and his savings and he transferred his interest in the matrimonial property to the Wife. The Wife retained the matrimonial home and her inheritance.

Property (Setting Aside a Binding Financial Agreement on Account of Unconscionable Conduct)

The parties were married for 24 years and had two children who were adults at the date of separation. Shortly after separation the Husband became to threaten, harass and intimidate the Wife on a regular basis and tried to coerce her in signing a Financial Agreement that was disadvantageous for her and advantageous for him. He also assaulted the Wife following the separation. The Wife then signed a Financial Agreement pursuant to Section 90C of the Family Law Act 1975 finalising property matters as she hoped this would stop the Husband’s ongoing intimidation. Three years after the parties signed the Financial Agreement, the Wife applied to the Federal Magistrates’ Court to set aside the Agreement under Section 90K of the Family Law Act on the basis that it was signed under duress. The Agreement was set aside by agreement and property Orders were made pursuant to the provisions of the Family Law Act 1975 giving the Wife a more generous property settlement.

Property (Binding Financial Agreement)

The Husband was a businessman earning $350,000 per annum. The Wife was a manager earning $100,000 per annum. The Husband owned assets of $4,950,000. The Wife owned assets of $155,000. Prior to their marriage the parties signed a Financial Agreement in contemplation of marriage quarantining their respective assets, i.e. providing that neither party could make a claim to the assets owned by the other party at the date of signing the Agreement in the event of a breakdown of the marriage. As the parties intended to have children together a clause was included in the Agreement providing for the payment of a lump sum by the Husband to the Wife in the event of a breakdown of the marriage in the event that the parties had a child or children together.

Divorce

The parties were married in India in 2007 and moved to Australia to live in 2008. The Wife had a Student Visa and the Husband had a Spouse Visa. In 2009 the parties separated after which the Husband’s Spouse Visa was revoked and he returned to India to live. The Wife filed an Application for Divorce in the Federal Magistrates’ Court at Sydney. It was not possible to personally serve the Husband with the Wife’s Application as he was in India. A sealed copy of the Wife’s Application was forwarded to the Husband by Registered Post to his address in India. An Affidavit of Service (by post) was sworn and filed with the Court. In addition, the Wife swore an Affidavit deposing to the fact that the Husband had returned to India to live at the address to which the Application was sent. While the Husband was not personally served with the Wife’s Application the Court was satisfied as to service on the basis of the two Affidavits filed and the Divorce Order was made without any further requirement as to service.

Children’s Matters (Application by Maternal Grandmother)

The maternal grandmother, who was 57 years of age at the time of the Application, made an Application to the Federal Magistrates’ Court for her five year old grandchild to live with her. The child had lived with the maternal grandmother and her husband for considerable periods of her life because the child’s mother had a history of drug and alcohol abuse and dysfunctional relationships and as a result was not able to properly parent the child. The grandmother provided and facilitated a relationship between the child and his extended family and the child and his father and was involved in his child’s school. She and the child had a close and loving relationship. The grandmother and the mother however had a volatile relationship. The mother separated from the father when she was pregnant with the child and the father, who lives in a different part of the state, has not played a major role in the child’s life. The child has behavioural issues and has displayed aggression. The child’s school was able to obtain a classroom aid for the child. The child also attended seven sessions with a child psychologist. The mother sought assistance from a family support worker in relation to parenting and life skills. She also sought assistance from a psychologist in relation to her personal issues. Prior to the Trial in the matter a family report was prepared by a psychologist which documented the clear progress at school of the child as well as significant progress made by the mother. Final Orders were made providing that the child live with the mother and spend time with the maternal grandmother as follows:

  1. Each alternate weekend from after school Friday until the commencement of school Monday;
  2. From 3.30pm to 7.00pm each alternate Wednesday;
  3. Time on the child’s birthday and the grandmother’s birthday;
  4. From 3.00pm Christmas Day to 3.00pm Boxing Day in each year;
  5. For half of all Victorian school term holidays;
  6. Two weeks during the long summer school holidays;
  7. By telephone each Tuesday between 6.30pm and 7.00pm.

Can I Travel Overseas With My Child on Holiday?

In a recent decision of the Court allowed a father to travel to Turkey with his son for a period of three weeks providing he provided cash security of $20,000.

The father applicant had been an Australian citizen since 1991 and he relinquished his Turkish citizenship in 2004. He had a six year old son, the child, with his now divorced wife. The respondent, the applicant’s divorced wife, argued that the husband should be prevented from travelling overseas because the child was too young, doesn’t speak Turkish, his safety was at risk and she feared that he would not be returned.

The Court dismissed these concerns, arguing that the paramount consideration in these matters is determining the best interests of the child in question. Here, the child was entitled to experience his cultural heritage and visit extended family, even if this meant ‘to travel internationally to experience those things.’ The child’s lack of Turkish was considered as an irrelevant consideration in this case, as was his age. Similarly, no evidence was produced that indicated Turkey as unusually unsafe compared with other destinations around the world.

Cases such as this usually centre on an assessment of risk, which includes taking into account the following considerations:

  • the connection the departing parent has with Australia (including citizenship, residence of close family or friends, ownership of real estate, the existence of business interests etc);
  • if the departing parent has any strong motives for not returning the child;
  • whether or not the departing parent has a strong motive to stay in the country to which they travel (including citizenship, residence of close family or friends, ownership of real estate, the existence of business interests etc); and
  • whether or not the country to which they travel is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction.[1]

In this case, the Court emphasised that Turkey was indeed a signatory to the Hague Convention and repeatedly stressed that the applicant father had a strong connection with Australia and had no reason to leave without return.

The Court did reduce the applicant’s request of a four week trip to three weeks and the father was compelled to pay $20,000 as cash security because his ex-wife did not trust him. In addition, the applicant’s ex-wife was afforded three weeks ‘make up time’, whereby she would have the child live with her for three weeks during the summer holidays.


[1] Line & Line (1997) FLC 92, 729.

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