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LATEST NOTABLE CASES

This is a sample (posted 18 June 2017) of our Latest Notable Cases, posted monthly with live links for subscribers at our members’ home page at “Latest Notable Cases”. 

Our case notes are also archived - at “Archive” at our members’ home page - where they are assembled by chapter and topic with live links to the judgment

Our archive also contains links to useful papers, court and other brochures and unreported judgments.

Our E-Book - now with FREE APP for tablet users - offers links to all the AustLII-published cases we cite, links to forms, brochures and precedents and a word/phrase search function.

Contempt – Wife’s legal personal representative has standing to file an application for contempt – Judge’s rejection of solicitor husband’s evidence that he did not know of his undertaking not to apply moneys to be held in trust was in error – Finding of contempt against husband (and sentence of six months imprisonment) set aside

In Bain & Bain (Deceased) [2017] FamCAFC 80 (3 May 2017) the Full Court (Bryant CJ, Ainslie-Wallace & Rees JJ) heard an appeal by the husband in a case where his terminally ill wife in property proceedings had applied for an interim order that the husband transfer his interest in a MLC life insurance policy over her life to her so that the children would benefit from the insurance payment upon her death. The husband, a principal of a law firm and practising solicitor, opposed the application, arguing that the parties had more debts than assets and that any insurance payment should be applied towards their debts. He sought dismissal of the wife’s application or an order that any payment be held in his solicitor’s trust account.

Hogan J dismissed the wife’s application upon the husband’s undertaking that the moneys would be held in trust. The undertaking was not given in court but noted in the order after being deposed to in the husband’s affidavit and reiterated in his counsel’s submissions. The wife died and her legal personal representatives were appointed to continue the case on her behalf under s 79(8). The husband received the insurance payment but applied it towards debts. The estate brought contempt proceedings, Hogan J finding the husband guilty of contempt and sentencing him to six months imprisonment, to be suspended pending his appeal.

The husband appealed the contempt finding and the orders made. He argued that the estate lacked standing to seek an order for contempt; and that he was unaware of his undertaking and was not told of it by his solicitor, he having been told that the wife’s application was dismissed but not upon any undertaking.

NOTE – A further 6 cases are summarised for members this month at our Members’ Home Page under “latest notable cases” under the following headings:

Property – De facto husband fails in his appeal against setting aside of consent order under s 90SN(1)(c) where as a result of his default (by paying $130,000 to respondent 13 months late) the increase in value of property during that delay meant that she would not be receiving her entitlement under the order

Child support – Father refused leave to appeal FCC’s dismissal of his appeal against SSAT decision – Full Court held that there was nothing illogical (as father argued) about SSAT finding that father had taxable income and resources exceeding $360,000 where his own statement of expenditure permitted that finding

Marriage – Married couple’s renewal of vows inadvertently resulted in registration of a second marriage – Court declares second marriage invalid under s 113 of the Marriage Act

Children – Mother not granted injunction restraining father from storing firearms at his residence – Order made to remind father of his legal obligations under Firearms Act 1996 (NSW) and protect the children from exposure to firearms

Children – Nature and purpose of a recovery order – Interim hearing – Court critical of father and his lawyers for applying to a Local Court for a recovery order without filing relevant evidence as to father’s criminal and violent history

Child support – Mother unsuccessfully appeals decision of the Administrative Appeals Tribunal – Tribunal did not err in preferring evidence of father as to the parties’ separation date where that evidence was corroborated by Centrelink documents