Don’s Family Law Blog

Last night I witnessed, for the first time, a private auction.   By orders of the Family Court an auction was ordered to take place of 2 commercial properties where the only bidders allowed were the husband and wife.

Neither spouse had accepted the valuer’s evidence as to value and each had indicated they wanted both properties.

The auctioneer took 20 bids on the first auction and 35 on the second.  As the hammer went down one property each was secured, at what appeared to be competitive but reasonable prices.

Thereby the court dodged the need to make findings as to value and as to who should receive the properties in a property settlement.  The parties were stressed, but satisfied with the process.  It was a good idea, well executed.

Aussiedivorce is now offering an “Online Property Settlement Outcome”.

Good luck to Alan Weiss, but I really do doubt the ability of the adviser to provide unconditional advice for about $300 - $400 (being whan an average lawyer charges for a single hour’s work).  Mr Weiss accuses some lawyers of “unrealistically” raising “a client’s expectations”.   I fear Mr Weiss may be overselling expectations also.  If he delivers as he promises, lawyers may have to go on-line to compete.  For the meantime, I will go on renting space and meeting and advising in the ‘real’ world.

David (and Libby) Koch advise the readers of the Herald-Sun (17th May 2010) to “Act quickly after divorce“.  They advise immediately upon separation to take money out of the bank, change locks and collect documents.

As a breakfast television star he’s clearly qualified to advise separating spouses.  As a practising family lawyer (for 28 years) I would advise somewhat differently.

Don’t take unilateral steps that will lead to a breach of trust.  Try to maintain the financial relationship you had before separating (grabbing money from the bank account generally leads to a breakdown of this).  Don’t do or say anything that will further inflame emotions.

On 21 April 2010, White J ordered that provided a widow pay the costs associated with storage, an IVF clinic in Brisbane was required to store the gametes (sperm) of her late husband.The Supreme Court has a relatively consistent history of allowing parties (usually widows) to harvest and store in cryogenic conditions the sperm of deceased men. In 2004, Atkinson J gave a similar order in Denman [2004] 2 Qd R 595. Byrne SJA made a similar decision in an unreported case of Ross v. A-G of Queensland (unreported – 3 December 2008)

However, the Court has never ordered that such harvested sperm be utilised for any purpose – be it by insemination, for paternity testing or anything else. In cases that reach back to the High Court decision of Doodeward v. Spence (1908) 6 CLR 406 and, more recently, Chesterman J’s decision in Re: Gray [2001] 2 Qd R 35, the Courts have consistently held that, at common law at least, there is “no property in a deceased body” and, given that no proprietary interests exist, there are no rights which attach. Further, given that it is potentially a crime in Queensland to interfere with a corpse – see section 236 of the Criminal Code – the Courts have been unwilling to allow the use of sperm absent legislation to the contrary.

Consequently, it is critical to understand the distinction. The Court will invariably make an order for the harvest and storage of sperm, but will not (as yet) make any order for its subsequent use.

Importantly, White J’s decision reverses the understood common law and takes the matter a step forward. Although her Honour was not asked to make any order concerning the use of the subject sperm, her Honour held that:

News that a British bus driver has won lotto the day after the divorce, thus apparently denying his former wife a share, raises the question what would happen in Australia?

Here it is possible to divorce without a property settlement.  In the case of Farmer and Bramley (2000) 27 Fam LR316 the husband acquired a $5million winning lottery ticket 20 months after separation.   Until then the parties had no property despite a relationship of 12 years and one child of the marriage living with the mother.  The wife received $750,000 or 15% of the lotto win.

The Australian Institute of Studies has released a study confirming the long held view that divorce has lasting impacts on women’s income levels compared with their male partners.  The information collected to reach this conclusion was compiled since 2001.  There has, of course, been major legislative change in the form of the `shared care’ amendments during the study time.  It is my experience that the `shared care’ regime and greater flexibility by employers has enabled mothers to re-enter the workforce far sooner.  I suspect the reported gap will close somewhat over the near time.

Legal advisers should always be aware of spouse maintenance entitlements.  I am sure many women have been `short changed’ by their advisers by not recommending the pursuit of this entitlement

As reported today in the Sydney Morning Herald, it seems that Brian Myerson has paid a significant price for his philandering ways.  He took the ‘box’ rather than the ‘money’ only to find the shares contained in the box became worthless.

This underlines the need to carefully consider the structure of property settlements.  At any time, not just during a global financial crisis, cash, where possible, is king.

A TASMANIAN man who went to Thailand to find a sixth wife and put her into domestic servitude has lost three-quarters of his assets, including his house and his business, in a Family Court case.

The court heard that the man, who was born in 1945 and at one point was so obese he could hardly leave his bed, had forced his young bride into hard physical labour throughout the 10-year marriage.

He had been married five times before he travelled to Thailand in 1997 to find her. She was 25 years his junior, and spoke no English.

The man told the court the woman had been working as a prostitute in Thailand and he saved her from that life. She denied it, saying she worked in a factory. In any case, he brought her to Australia soon after they met and set her to work in his market garden outside Hobart, where she toiled for $40 a month. She was also asked to carry out what the judge described as “disgusting” tasks, related to the man’s physical care.

In the course of the marriage, the woman gave birth to four of the man’s children.
The Family Court, sitting in Hobart in April, heard that the husband grew fatter and more sedentary, and had taken to sitting on a stool, waving a large stick and shouting orders at the woman and their children. When she left him, he sought custody of the children, and most of the assets, saying all had belonged to him before the marriage.

Her victory in the court has been hailed by female lawyers and domestic violence support workers as a sign that men should not think they can travel to poor countries and find brides to work as domestic servants.

The judge said the husband was “a huge man, some five foot eight in height, but weighed at his worst, something near 200kg”.

“His enormous weight caused him to be gravely disabled and that he was able to get around only with difficulty,” the judge said.

The wife and two of the children told the court that the husband “tended to lie around in bed; that he tended to play with the computer, and called upon every member of the family to look to his various wants, which included bathing him, dressing him, cleaning up his toiletry and applying ointment to bleeding buttocks”.

“The father in effect was nothing else but a bully,” the judge said. “He demanded that his wants be attended to before anybody else’s. He adopted an authoritarian manner whereby he sat on his stool and waved a large stick at them, demanding that they do certain things in relation to the gardening.

“He insisted that (his wife) carry out physical labouring tasks as well as looking after his more private needs, notwithstanding that she had had a bad caesarean and was in considerable pain.”

The husband told the court he was the victim of domestic violence, and that his wife had once tried to kill him with a meat cleaver. The judge found to the contrary, saying she “worked exceptionally hard”.

The value of the couple’s property was put at $200,000, the total of which was “put in by the father (because) the mother had nothing”.

But the judge said she had done an “enormous amount of work” in the house and the market garden, and awarded her 75 per cent of the assets.

National Council of Women president Margaret Smith hailed the decision as “one of the very good decisions of the Family Court”.

“We mostly hear of cases where men tell their wives they have no rights, they will lose their children, so this should be a signpost to women who find themselves trapped like this, to know there is a way out,” Ms Smith said.

In Kennon v. Spry [2008] HCA 56, the High Court grappled with a number of questions involving discretionary family trusts for the purpose of property settlement pursuant to section 79 of the Family Law Act 1975.  My colleague Adam Cooper provides an analysis of the High Court decision.  Read here.

Dr Spry is very unhappy with some members of the High Court.  Letters are circulating written by the unsuccessful appellant to Justices French and Hayne, the publication of which I will not perpetuate.  Colourful!