What Happens If One Party Goes into Aged Care?
Family Law in Later Life RelationshipsThe High Court decision in the case of Fairbairn v Radecki [2022] HCA 18, is relevant in considering how a settlement might occur if one party were to enter aged care. The facts of Fairbairn v Radecki are as follows:
It was also noted that the respondent had not acted in support of his de facto wife. It was therefore concluded that the parties’ relationship had broken down. Despite this conclusion, it is noted that simply because the relationship was deemed to be broken down in Fairbairn v Radecki, does not mean that if one party enters into an aged care facility, the relationship is automatically broken down. There is a dependence on whether the other party continues to provide financial and/or emotional support to their (de facto) spouse. Need help?Contact the Brisbane family law team at James Noble Law today for a FREE 20-minute consultation no obligation. To schedule an appointment with one of our Qualified and experienced Affordable Family lawyers in Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
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Matrimonial Home Principles which are Applicable to Sole Use and OccupationThe principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the injunctive powers of this section of the Act. They may be summarised as follows:
a) the Court may make such an order as it thinks proper; b) there are no words of limitation in s 114(1)other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it; c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances; d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order; e) the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together; f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order; g) the test for making an order for exclusive occupation is an objective one; h) the question is what in all the circumstances of the case is fair, just, and reasonable, and if it is fair, just, and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen; i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together; j) while the decision ought not be made merely on the balance of convenience in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home; k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened; The above list is not exhaustive. It is a convenient summary of the key principles. Need help?Contact the Brisbane family law team at James Noble Law today for a FREE 20-minute consultation no obligation. To schedule an appointment with one of our Qualified and experienced Affordable Family lawyers in Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
What are the Principles under Section 114(1) of the Family Law Act in Australia?The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the injunctive powers of this section of the Act. They may be summarised as follows:
a) the Court may make such an order as it thinks proper; b) there are no words of limitation in s 114(1)other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it; c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances; d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order; e) the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together; f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order; g) the test for making an order for exclusive occupation is an objective one; h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen; i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together; j) while the decision ought not be made merely on the balance of convenience in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home; k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened; The above list is not exhaustive. It is a convenient summary of the key principles. Need help? Contact the Brisbane family law team at James Noble Law today for a FREE 20-minute consultation no obligation. To schedule an appointment with one of our Qualified and experienced Affordable Family lawyers in Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
The Court can make Orders where a party has been given an opportunity to participate in the proceedings but fails to do so.
Principles The Family Law Rules provide mechanisms that allow the Court to determine a case if a party does not comply with the Rules, Family Law Regulations, or procedural orders. Family Law Rules 1.33 states:Failure to comply with a legislative provision or order (1) If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect. (2) If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
The expression “undefended” is not defined, or otherwise explained, in the Rules. However, the Explanatory Guide to the Rules (which is expressly stated not to be part of the Rules) explains the term “undefended basis” in the following way: …the court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The Court may make orders set out in the application on being satisfied by evidence that the orders should be made. The Rules deal with when a Respondent is in default and provide as follows:A Respondent is in default if the Respondent fails to:
The Court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just. While the Court cannot compel a person to participate in litigation, the Court must afford a party an adequate opportunity to be heard. Before a matter can proceed on an undefended basis, the Court must be satisfied that all parties to the proceeding have had an opportunity to be heard. The manner in which an undefended hearing may be conducted will vary depending on the circumstances of a case. The Court has wide discretion in relation to the involvement of the defaulting party. The Court has discretion as to how to conduct a hearing when a case is undefended. The discretion “must be tempered with regard to procedural fairness, natural justice, and the requirement to do justice to all of the parties.” A party that seeks judgment on an undefended basis is not entitled by the right to the orders he or she seeks simply because the other party fails to prosecute his or her case. In parenting proceedings, the Court is required to make orders that are in the best interests of the children. In property proceedings, the Court must be satisfied that any orders made are just and equitable. The Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Need help?Contact the Brisbane family law team at James Noble Law today for a FREE 20-minute consultation no obligation. To schedule an appointment with one of our Qualified and experienced Affordable Family lawyers in Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
Legal Costs in family law proceedings: Overview and Legal Framework
Legal Costs in family law proceedings: Overview and Legal FrameworkThe law relating to costs in family law proceedings is well settled and set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke. General Presumption and ExceptionsAn application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that: If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may make such order as to costs and security for costs as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (a) the financial circumstances of each of the parties to the proceedings; (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court; (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and (g) such other matters as the court considers relevant. Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors, depending on the circumstances of the matter. Costs are normally ordered by the Court, on a party/party basis. That is the cost for the actual work carried out as determined by the costs set out in the Family Court Rules. Method of Calculation of Legal Costs in family law proceedings However, the court may order that a party is entitled to costs: (a) of a specific amount; or (b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or (c) to be calculated in accordance with the method stated in the order; or (d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3. The rule further provides that: In making an order the court may consider the following: (a) the importance, complexity or difficulty of the issues; (b) the reasonableness of each party’s behaviour in the proceeding; (c) the rates ordinarily payable to lawyers in comparable cases; (d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate; (e) the time properly spent on the proceeding, or in complying with pre-action procedures; and (f) whether expenses (paid or payable) are fair, reasonable and proportionate. Indemnity cost orders (the actual costs incurred) are made only in exceptional cases.Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such costs may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law” and where there has been “an imprudent refusal of an offer to compromise”. In relation to the first category, it has been said that indemnity costs may be awarded where “the applicant, properly advised, should have known that he had no chance of success” and where “a party persists in what should on proper consideration be seen to be a hopeless case”. Need help? Contact the Brisbane family law team at James Noble Law today for a FREE 20-minute consultation no obligation. To schedule an appointment with one of our Qualified and experienced Affordable Family lawyers in Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
Understanding Defacto Relationships
Understanding defacto relationshipsSection 4AA(1) of the Family Law Act sets out the principles that apply to defacto relationships. This Section mandates that regard must be had to all the relationship circumstances in determining whether it is one of a couple living together on a genuine domestic basis. Section 4AA(2) sets out some of the circumstances to be considered, including “whether a sexual relationship exists”, and Section 4AA(3) provides in effect that no particular finding is determinative. Each case falls to be considered on its unique facts in determining whether, “having regard to all of the circumstances”, it can be concluded that the relationship under consideration is “as a couple living together on a genuine domestic basis”. The Effect of Family Violence It does not follow that the presence of family violence within a relationship cannot have determinative significance as to whether the relationship meets, or continues to meet, the statutory definition. There will be cases where the nature and extent of family violence and/or its effects upon the victim render untenable the characterisation of that relationship as one of “a couple living together on a genuine domestic basis”. The perpetration of family violence is entirely antithetical to the element of mutuality which may generally be accepted as an element, at least to some degree, in a genuine relationship as a couple. It follows that family violence will always be highly relevant as one of the circumstances to be considered in determining whether, on review of all of the circumstances of the relationship, the statutory test is met What needs to be demonstrated to find that “separation” has occurred? The law is that there must be three things to be satisfied to establish that separation occurred. One party or both parties must form an intention to end the relationship, that party must act upon the intention and must communicate that intention to separate to the other party. The real issue is not whether the parties “separated”, but whether the de facto relationship broke down or ceased. Thus, it is not even necessary to specifically enquire as to whether an intention to separate was formed, and that intention was acted upon and/or communicated to the other party. There is no mention in the Family Law Act, and in particular, in the definition section (s 4AA) of there needing to be an intention formed to either enter into a de facto relationship or to end it. The Full Court in Clarence & Crisp [2016] FamCAFC 157; (2016) FLC 93-728 correctly identified the test to determine whether a de facto relationship has come to an end. The Full Court said as follows: “Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]:… a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its character continue to exist. The task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation. Need Legal Help? If you need help, please contact the Brisbane Family Lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find family lawyers Brisbane on Google Maps near you. You may also like to learn more about:
Section 74(1) of the Family Law Act empowers the Court to “make such order as it considers proper for the provision of maintenance” in accordance with Pt VIII of the Act.
That primary requirement is set out in s 72(1) of the Act, as follows:(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2). The relevant considerations are set out in s 75(2) of the Act as follows:(a) the age and state of health of each of the parties; and (b) the income, property, and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (p) the terms of any financial agreement that is binding on the parties to the marriage; and (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage. The High Court has set out the appropriate approach in considering an application for interim spousal maintenance, as follows: The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that “a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately having regard to any relevant matter referred to in [s] 75(2)”. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, “In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”. A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “the evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2). The High Court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act. This can be particularly challenging in the context of an application for interim spousal maintenance. Disputed issues of fact cannot be resolved at an interim hearing.On an application for an interim order the evidence need not be so extensive and the findings not so precise as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). In determining the “capacity” of a party to satisfy an order for interim spousal maintenance, the Court is not confined to considering only that party’s income, but rather: Once a party establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets. Need Legal Help?If you need help, please contact the Brisbane Family Lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to learn more about:
CONSTRUCTIVE TRUST. Their Relevance in Family Law A trust arises by operation of law where it would be unconscionable for a person who holds an asset to deny the beneficial interest of another person.
Viewed in its modern context, the constructive trust can properly be described as a remedial interest which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of the property to the extent that such retention or assertion would be contrary to equitable principle. Can a gift fall within the principles of constructive trust?A gift is not a business transaction. Further, if the donor of the gift is of weak will or of poor mentality, a court of equity will set aside the gift unless it is shown that the donor understood the substance of what he/she was doing. A court of equity and therefore the Family Court, can set aside a transaction and cancel a document on various grounds, such as fraud, undue influence, mistake, lunacy, duress, non-disclosure of material facts when there is a duty to disclose, abuse of confidential relationship, or, in some cases, failure to show that there has been no such abuse. It should not be overlooked that to sign a document known and intended to affect legal relations is an act that itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it. When a document containing contractual terms is signed, then, in the absence of fraud or misrepresentation, the party signing it is bound, and it is wholly immaterial whether he/she has read the document or not. Where a person signs a document knowing that it is a legal document relating to an interest in the property, he/she generally is bound by the act of signature. Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but, who are nevertheless, committed to those terms by the act of signature or execution. It is that commitment that enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief. Setting aside a legal document for constructive trust
The difficult and debatable philosophic questions of the meaning and relationship of reality, substance, and form are generally resolved by asking, “did the parties who entered into the ostensible transaction mean it to be, in truth, their transaction, or did they mean it to be, and in fact use it as, merely a disguise, a facade, a sham, a false front concealing their real transaction.” The sham doctrine is a relatively rare doctrine in the law where legal meaning is given to a document by reference to a subjective intention. Other examples are a plea of non-est factum at law and a claim for rectification in equity. All these doctrines must necessarily be kept within narrow limits as they subtract from the objective theory of contractual obligation, and if unchecked, would cause “serious mischief”. Because a finding of sham requires a finding of an intent to deceive, considerations require a cautious approach. There is a strong and natural presumption against holding a provision or a document a sham. A Court will only look behind a transaction’s ostensible validity if there is a good reason to do so. Frequently Asked QuestionsWhat is a Constructive Trust in Australia?Constructive trust is a legal concept that arises in family law to resolve disputes. It is an equitable remedy imposed by a court of law to prevent one party from unjustly enriching themselves at the expense of another. It is used to protect family interests and ensure fairness in family law disputes. What is an Institutional Constructive Trust?An institutional constructive trust is a trust created by a court to protect assets of an institution, such as a university or hospital. It ensures that the assets are used in a manner that is consistent with the institution’s purpose and goals. How to Create a Constructive Trust?Constructive trust is created by a court order. The court will designate a trustee to oversee the trust, who will be responsible for ensuring that the property is used in accordance with the court’s order. The court can also impose restrictions on how the trust can be used, such as who can benefit from the trust and how the assets can be distributed. How to Prove a Constructive Trust?In order to prove a constructive trust, the party seeking to establish the trust must demonstrate that the other party was unjustly enriched at the expense of the party seeking to establish the trust. This often requires evidence such as documents, emails, bank records, and other forms of proof. It is important to note that a constructive trust is not always easy to prove, as the burden of proof is on the party seeking to establish the trust. What are the common intention constructive trust in Australia ?Common intention constructive trusts in Australia are trusts that arise where the parties to a transaction have intentions to share the benefits of the transaction, and those intentions are not reflected in the legal documents. Such trusts may arise, for example, in cases of joint venture arrangements, partnerships, or family arrangements. In such cases, the courts may look to the parties’ intentions to find that a constructive trust exists, such that the parties’ interests are reflected in the transaction. What is the remedial constructive trust in Australia ?A remedial constructive trust in Australia is a trust imposed by a court in order to remedy a wrong or injustice. This type of trust is imposed where a person holds property for another person which was acquired in circumstances where it would be unjust for the holder of the property to retain it. In such cases, the court will impose a constructive trust on the property, and the property will be held on trust for the benefit of the rightful owner. What is joint endeavour constructive trust in Australia ?A joint endeavour constructive trust in Australia is a trust created by a court when two or more people have entered into an agreement to jointly pursue a common goal. The court will impose a constructive trust in order to ensure that the parties’ interests are adequately protected and that the parties’ intentions are reflected in the transaction. The benefit of the trust is shared equally between the parties, according to the agreement. Need Legal Help?If you need help, please contact the Brisbane Family Lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to learn more about:
The Family Court of Australia has jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) to determine matters relating to property as between parties who have not been married, where the parties have lived in a de facto relationship for a period of no less than two years and the relationship finally ended after 1 March 2009, the date on which the particular provisions of the Act commenced.
The touchstone or foundational fact establishing jurisdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time. That question can be decided by reference to the matters to which s 4AA(2) of the Act refers, none of which are determinative of the question. FAMILY LAW ACT 1975 – SECT 4AADe facto relationships Meaning of de facto relationship (1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family; and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. (d) has effect subject to subsection (5). Working out if persons have a relationship as a couple (2) Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2). Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship. Sub-section 4AA(4) provides:A court determining whether a de facto relationship exists is entitled to have regard to such matters and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate. Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test. It is important to consider all of the relevant facts and circumstances as a whole in determining the nature and characteristics of the relationship being examined. The touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis. If you need help, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you.
The Role of the Appellant Court in Family Law – AustraliaThe High Court has reiterated many times that orders made in the exercise of a judicial discretion under the Family Law Act as to the alteration of property interests can only be set aside on a strictly limited basis in accordance with the principles in House v The King (1936) 55 CLR 499 (“House”)
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred. What is the relevance of “add backs” in Family LawAdd backs- Where property, monies, financial resources are added back into the relationship assets. Addbacks fall into “three clear categories”:
Adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. In cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) (Family Law Act) factor. These factors are important for the court’s consideration and assessment of what each party’s ‘future needs’ are likely to be. The authorities establish four relevant propositions:First, adding back property which has been distributed and spent is discretionary, and reflects an exceptional exercise of the discretion as an “accounting” or “balance sheet” exercise for the purposes of s 79(2) (Family Law Act) to achieve justice and equity between the parties. Secondly, the nature of the expenditure reflected in add backs is relevant, and reasonably incurred expenditure does not usually come within accepted categories of addback. Thirdly, the decision in Stanford, followed by Bevan, does not necessarily require the conclusion that adding back notional property is per se an error, but proper consideration must be given to existing interests in property. Fourthly, in cases which are not exceptional, expended interim distributions can be taken up under s 75(2) rather than as part of the balance sheet exercise. The latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property. The essence of a claim for addbacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s 79(2) and (4), so as to include the value of the dissipated property or expended sums within the total value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party. Addbacks encompass four relevant propositions: First, adding back property which has been distributed and spent is discretionary, and reflects an exceptional exercise of the discretion as an “accounting” or “balance sheet” exercise for the purposes of ss 79(2) and (4) to achieve justice and equity between the parties. Secondly, the nature of the expenditure reflected in add backs is relevant, and reasonably incurred expenditure does not usually come within accepted categories of addback. Thirdly, proper consideration must be given to existing interests in property. Fourthly, in cases which are not exceptional, expended interim distributions can be taken up under s 75(2) rather than as part of the balance sheet exercise. If we can be of assistance, please contact our experienced Brisbane family lawyers team at James Noble Law today for expert advice from experienced Brisbane solicitors for a FREE 20-minute consultation. We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family lawyers on Google Maps near you now. You may also like to know about
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