The Federal Circuit and Family Court of Australia publishes decisions of the judges in the law reports, mainly for the assistance of lawyers and researchers. The names of the parties are changed to protect their identities, but there is otherwise no reason why the public should not know how the courts make their decisions, which can be helpful in seeing how your case may turn out, if it went to a final hearing. However, most cases that are issued in the court are settled by negotiation before they reach the stage of a trial.
Here is a summary of three recent property cases decided by the court –
Hatzis (2021) – The parties had a long, 18-year relationship. The husband owned a home before the marriage, in which his parents had lived throughout the parties’ relationship, as well as a share portfolio and an investment fund, which were mostly untouched throughout the marriage. The husband asked the court to adopt an “asset by asset” approach to a property division, which would have meant the wife would not have got a share of those pre marriage assets. The wife sought a “global” approach, which would have meant she was entitled to a share of those assets.
The court adopted a “global” approach, saying that the parties had a common purpose in their marriage, by advancing their financial interests and caring for their children. The judge said they “acted in concert and demonstrated joint enterprise to create the best life possible for themselves and their family.”
Fairbairn & Radecki (2022) - This was a property case that ended up in the High Court. Ms. Fairbairn and Mr. Radecki began a de facto relationship in 2005-6. They agreed to keep their assets separate and to live in Ms. Fairbairn’s home. About 10 years later, she was diagnosed with dementia. In 2018, her trustee decided to sell her house to pay for her living in an aged care facility. The trustee asked the Federal Circuit Court to make property orders between she and Mr. Radecki, including for the sale of her house. The court said the parties’ relationship had broken down in 2018 (about the time Ms. Fairbairn went into care), and it made property settlement orders. Mr. Radecki appealed the decision, saying the fact that Ms. Fairbairn had gone into care did not mean that the de facto relationship had broken down. The Full Court of the Family Court agreed and allowed the appeal.
The trustee then appealed to the High Court, Australia’s highest court. The High Court said that merely because a de facto couple had permanently ceased living together did not, of itself, show that their relationship had ended. However, in this case, he parties no longer had “an enduring emotional bond.” Mr. Radecki had broken his agreement to keep the parties’ assets separate and had refused to move out of Ms. Fairbairn’s house to allow it to be sold. The relationship had broken down and property orders between the parties could be made.
Calvin & McTeer (2017) – Family Court of Australia - While this is an older case, it’s a good example of organising your property settlement sooner rather than later. The parties had an 8-year marriage. There was 1 child, who spent equal time with both parents. The timing here is important. The parties separated in April 2010 and were divorced in August 2011. The Family Law Act says you must make an application for a property settlement within 12 months of the Divorce. That time limit expired in August 2012. Then, in January 2014, nearly 4 years after the separation and almost 1 ½ years after the time to file a property application had expired, the husband received an inheritance from his late father’s estate, of some $460,700. So what, you may ask? Surely the wife couldn’t claim any of that, because her right to do so had run out in August 2012. Not so. There is a loophole in the law that says the court can let you make a property application “out of time” in certain circumstances, including that you did not know about the time limit or that you would suffer hardship if you weren’t allowed to make the application. The courts often allow a party to make a property application out of time.
So, the wife was given permission, on 5 March, 2015, more than 2 1/2 years after time had expired, to proceed with her application. The court decided that there did not have to be a “substantial connection” between the husband’s inheritance and the marriage for property orders to be made in favour of the wife. In the end, the wife got part of the husband’s inheritance.
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