By Craig Nicol and Keleigh Robinson
Property – Stanford distinguished – Husband lived in aged care but the parties had separated – Court did not err by considering s 90SM(4) when determining that it was just and equitable to divide the parties’ property
In Costello & Langdon [2024] FedCFamC1A 168 (24 September 2024), the Full Court (Aldridge, Austin & Tree JJ) heard a de facto wife’s appeal from property orders following a 41-year relationship which ended when the de facto husband entered aged care in 2021.
The trial judge ordered a 64:36 adjustment in favour of the de facto wife.
The Full Court said (from [21]):
“… [I]n Stanford the parties had not separated in the sense that the relationship had ended – the parties were involuntarily living apart because of the illness of one of them. Here, there was an unchallenged finding that the parties had separated …
[22] … [T]he parties each accepted that it was just and equitable for there to be an order under s 90SM.
( … )
[37] … [W]here the relationship has not broken down the explicit and implicit assumptions about the parties’ mutual use of their property remain in place. Ordinarily, such assumptions would include the use of the parties’ income and property for each party to be provided for properly. Thus … those needs might be satisfied by orders for spousal maintenance but where they would not then those unmet needs might make it just and equitable to make a property settlement order.
[38] Considerations under s 90SM(4) of the Act may therefore inform both the exercise of the discretion in deciding whether it is just and proper to make an order…
( … )
[40] It follows that the primary judge did not err by taking into account Mr Langdon’s unmet needs for better care when deciding it was just and equitable for there to be a division of the parties’ property.”
The appeal was dismissed and a costs order was made in favour of the litigation guardian for the husband in the sum of $14,707.
Procedure – Inaccurate list of legal authorities tendered by town agent – List was generated by LEAP software utilising artificial intelligence – Agent given a month to make submissions as to why he ought not be referred to the Victorian Legal Services Board and Commissioner in relation to the list of authorities
In Handa & Mallick [2024] FedCFamC2F 957 (19 July 2024) Judge A. Humphreys considered the conduct of the husband’s legal representative during the wife’s application for enforcement of property orders.
The husband’s solicitor (“Ms Aus Lawyers”) filed a Notice of Address for Service and instructed a town agent (“Mr B”) to appear. Mr B provided the Court with a list of authorities which neither Her Honour nor her associates could locate.
Judge A. Humphreys said (from [7]):
“ … I asked Mr B if the list of authorities had been provided using artificial intelligence. He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and other purposes. I asked if LEAP relies on artificial intelligence. He indicated that it does…
[8] I informed the parties and their legal representatives this morning that as a concern had arisen in relation to the veracity of information provided in the list of authorities, a concern had in turn been raised in relation to the competency and ethics of Mr B…
( … )
[10] I have foreshadowed … making an order providing Mr B an opportunity to respond to the court’s proposal to refer his conduct in tendering the apparently inaccurate list of authorities today, to the Legal Services Board and Commissioner for investigation. Beyond that, I will not be making an assessment or a determination in relation to that conduct. That will be a matter for the legal professional body if a referral is made. The purpose of the order I make is for Mr B to be afforded procedural fairness in relation to my proposal to make that referral. I will provide him with one month to do that…
( … )
[14] … I will make the orders foreshadowed and Mr B can address the veracity of information provided in the list of authorities in his written submissions if he wishes to do so.”
The proceedings were adjourned.
Property – Application for consent orders refused – Mentally disabled wife was in aged care but marriage had not broken down – Court was not satisfied that the proposed property orders were just and equitable
In Giordano [2024] FCWA 182 (2 September 2024) O’Brien J heard an application for consent orders where the disabled wife required full time care.
The husband and the Public Trustee as case guardian for the wife proposed consent orders in which the family home was to be transferred from the wife to the names of both parties as joint tenants. The parties were otherwise retaining their respective assets ([1]).
O’Brien J said (from [5]):
“There can be no suggestion that the absence of a breakdown in the marital relationship means that the jurisdiction of the Court is not enlivened.
[6] There can be circumstances other than ‘a voluntary separation of the parties marking the breakdown of their marital relationship’ in which the Court is nevertheless satisfied that it is just and equitable to make an order for the alteration of property interests …
( … )
[23] I cannot be satisfied on the available evidence that it is just and equitable to make any order for alteration of property interests, let alone that the orders presently proposed are just and equitable in all the circumstances.
[24] I do not know whether the questions which emerge from the papers have been adequately considered by the Public Trustee in the exercise of his protective duties to the wife. I accept that they may well have been – but the evidence does not presently permit that conclusion to be drawn.
[25] … [I]t is not at all clear that the parties have adequately considered the fact that there is but one exercise of the Court’s power to alter property interests. While the marriage has not broken down, the wife’s needs are apparently presently being met and the husband desires security of accommodation, the making of orders now would (subject only to the possible application of s 79A) preclude the making of further orders for alteration of property interests should the relationship end.”
The application was adjourned to allow the parties a reasonable period to consider their options and adduce further evidence ([28]).
Procedure – Father’s application for release from Harman undertaking to use expert evidence in his criminal defence dismissed, as he failed to establish that his proposed use of report would contribute to the administration of justice
In Kuang [2024] FedCFamC2F 1191 (29 August 2024) Judge Murdoch heard a father’s application for leave to be released from his Harman undertaking in respect of a single expert report prepared for parenting proceedings. He was facing criminal charges in the District Court and sought to use the material in those proceedings.
The single expert report was prepared by a psychiatrist and pertained to the welfare of the children.
Judge Murdoch said (from [15]):
“ … [T]he pre-eminent consideration is whether there is a real possibility that the expert reports may contribute to the administration of justice in the father’s criminal proceedings.
( … )
[24] I am not satisfied the father has discharged his onus to establish that he and his legal advisors should be released from the ‘Harman Undertaking’ … because:
- No evidence was provided by the father to demonstrate that the expert is on notice as to the application for leave…
- The father has not established how an untested hearsay opinion based from material that would not appear to be adduced in the criminal proceedings … will likely contribute to achieving justice.
- The father has not established how untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter will likely contribute to achieving justice…
- The father has not engaged in any meaningful manner with the best interests of the children… There is no evidence as to how the release of this report to be used in the father’s criminal proceedings will impact on the children. I accept the mother’s submissions that in the event the single expert were to give evidence in the father’s defence in the criminal proceedings it would be inappropriate for him to continue as the single expert in these proceedings. This would cause significant delay in the parenting proceedings and the children’s involvement in the preparation of a second expert report. This is not in their best interests.”
The father’s application was dismissed and the mother’s costs reserved for 28 days.
