Family law property adjustment cases see a wide variety of reasons proposed and considered for keeping particular items of property.  Sentimental reasons are relevant considerations in that regard, but they are not the only consideration, nor are they always the deciding factor.  In Moss & Moss [2012] FamCA 538 (16 July 2012) Austin J had to consider the significance of a claim of sentimental reasons for retaining some real property. The following facts, with some minor editing on my part, are taken from paragraphs [141] to [146] of that judgment.

The husband desired sole ownership of the X property. He asserted he only reluctantly departed the X property following separation. Significantly for him, the urns containing the ashes of his deceased parents are kept in a memorial garden upon the property, making it a place of sentimental value. There is no evidence the ashes are interred and no evidence the memorial headstones are immovably fixed.

The asserted intention of the husband was to return to work on the X property as a farmer. However over the preceding four years the agricultural businesses conducted on the farm by the parties showed relatively poor financial performance and there was little evidence to suggest the husband could make the property particularly profitable as a commercial farming enterprise.

The property has never carried more than a couple of dozen animals and, although the property has olive trees planted on it, the husband admitted in cross-examination he had only ever sold 10-20 bottles of olive oil to guests.

The husband adduced no evidence of any formulated plan about how he could rationally transform the X property from a hobby farm, as it was regarded by the parties, into a genuinely commercial enterprise. The chances of the husband deriving income from the farm that would even remotely compare to his current income are inestimably small.

The husband conceded in cross-examination:
•    The past income generated by the farm would not cover his current living expenses.
•    That he may well need to obtain paid employment elsewhere.
•    He was unsure whether his plans to farm X property would actually be successful.

The husband acknowledged:
•    The wife intended using the property to continue the hospitality business as a source of her income.
•    The wife had always worked hard:
    •    Around the house;
    •    In the garden around the “house block”; and
    •    In the conduct of the hospitality business.

The Court Held
•    The sole ownership of X property by the wife is the more just and equitable result.
•    The following considerations sway the decision:
    •    The continuity of her occupation;
    •    Her greater need for the property as a source of income; and
    •    The transportability of the mementos of the husband.

•    The orders:
    •    Make provision for the retention of the X property by the wife; and
    •    Permit the husband a short period within which to attend the property to recover:
        •    The ashes of his deceased parents; and
        •    Any other sentimental accoutrement from the memorial garden.

Conclusion
The ultimate order in a family law property adjustment matter is required to be just and equitable between the parties on the facts before the Court.

The Court found a way to compromise the wishes of the parties here to give the husband the ashes of his deceased parents and any other sentimental accoutrement from the memorial garden, while ultimately enabling the wife to retain the property on which they were currently held. That compromise was held to be the most just and equitable outcome between the parties on the facts before the Court.

Decisions such as this one can often be difficult to make. However giving proper weight to items of sentimental value can aid significantly in planning family law property adjustments and can help ease the burden of the emotional difficulties dealing with such matters can cause.

Ross Bowler LLB

The unique features of Family Law litigation have previously been discussed, as have the similarities to criminal law and civil law litigation, in terms of the role of the barrister.  Clients in Family Law litigation often talk of settling or compromising the matter at a much earlier stage than is the case in much of the criminal law and civil law litigation. That has an impact on how legal representatives are required to prepare that litigation.

We have already established from our previous discussions about criminal law, civil law and family law litigation that:
•    The client is entitled to be advised as to all the forms of mediation and alternative dispute resolution available in respect of the case.
•    Only when:
    •    Full instructions have been taken from the client in the subject case; and
    •    A conference is held with the barrister and solicitor and client discussing all aspects of the case;
    is the client in a position to make an informed decision as to:
    •    The merits of the case sought to be run; and
    •    What the client might wish to do in respect of that case.
•    The client is then optimally enabled to discuss:
    •    The extent to which mediation and alternative dispute resolution is appropriate in the case; and
    •    What the client may stand to gain or lose by compromising the matter.

In the circumstances any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:
•    Necessarily deny the client the opportunity to be fully informed about their matter; and
•    Colour any compromise accordingly.

It is even conceivable that in some circumstances the compromise might be able to be subsequently set aside by a Court as being one that was made without proper appreciation of the rights available to the client at the time.

Conclusion
Given the impact such a decision can have on your relationship with your children and/or your personal property, would you want to compromise your family law rights without being fully informed?

Ross Bowler LLB

Having discussed criminal law and civil law, I now propose to talk about family law and the demands it might make upon a barrister.

Whilst family law has its own unique features, it is most definitely a constituent part of the litigation arm of the law and those aforementioned rules of litigation apply to family law, as we shall see.

No decision can be made by a Court exercising family law jurisdiction without it being based on the evidence lawfully before the Court.  That evidence gets before the Court through witnesses, whether that occurs by way of affidavit or the witnesses giving evidence in the witness box.

On that basis the similarity with criminal law and civil law matters is significant and the extent to which family law matters might be subjected to a similar regime of obligations as those in criminal law and civil law matters is interesting.

In the circumstances I see no reason to distinguish between the obligations that will apply to advising a civil law client and a family law client when it comes to assessing the matter and being prepared for trial.

Accordingly in my view a family law client can expect to be advised by the barrister on these issues:
•    The strengths and weaknesses of their own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The possible impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge;
•    Whether there was some unanswerable problem that the witness might confront in giving evidence;
•    Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
•    How the Client would conduct themself as a witness;
•    How any other witness might conduct themself as a witness;
•    The likely impression of the Client upon the Judge, when the Client gave evidence;
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

In order for the family law client to be given such advice that client would need to talk to a solicitor. The solicitor could then use their professional skill and judgment to obtain all the relevant material for the advice, omit all the irrelevant material and compile it into a coherent brief for the barrister. Upon reading and considering the contents of that brief the barrister is then in a position to confer with the solicitor and the client. Using their professional skill and judgment gained from going to Court and arguing such matters, the barrister is able to discuss the case with the solicitor and the client and advise them in respect of it. At the end of that conference the family law client would be fully informed as to the strengths and weakness of their case and what options might be available in respect of it.

That interplay of professional skills and responsibilities between the barrister and solicitor best serves the family law client in answering their enquiries and educating them as to their position.

Ross Bowler LLB

It is said that love is blind.  It is also said that love can make people do some funny, perhaps even crazy things.  Those observations might explain why acts are done within families and personal relationships that would not be advised by a sage, circumspect legal practitioner.  Often those acts within families occur without any contemplation of the love apparently underlying those acts ever going wrong.  It is usually only when that love has gone wrong that the family members seek legal advice to recover the goods, possessions and / or money that were part of the original transaction.  Sober, dispassionate attention is required when considering such family arrangements and the introduction of that attention to the family fold is not always greeted with great love and affection by the family members.

Almost without exception the ultimate question the Court will ask in respect of those now seemingly controversial family arrangements is whether in all of the circumstances “the parties intended to subject their agreement to the adjudication of the courts”.   (See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [9])

A Court charged with the responsibility of determining whether particular family arrangements enjoy the benefits and responsibilities that derive from an intention to create legal or contractual relations will tell you that for there to be a legally enforceable duty the following must be present:  
•    Identifiable parties to the arrangement;
•    Certainty in the terms of the arrangement; and
•    Generally, real consideration for the agreement, unless recorded as a deed.
(See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [7])

The Court will make an objective assessment of the state of affairs between the parties to determine what the terms of any family arrangements may mean, rather than enquire as to what each of the parties subjectively intended to achieve. (See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [7])   The onus of proof lies on the party alleging that legal relations have been created. (See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [10])

Relevant considerations for an inquiry in relation to the existence of such an intention are as follows:  
•    The subject matter of the agreement;
•    The status of the parties to the agreement;
•    Their relationship to one another; and
•    Other surrounding circumstances.
(See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [7]

Two areas where one might see family arrangements lead to enquiries about litigation are:
•    Leasing real property to family and friends; and
•    Lending money to family and friends .

Leasing Real Property To Family and Friends
It is not uncommon for families to let out real property they might possess to family or friends. Often such an endeavour is undertaken without anyone involved obtaining legal advice as to the implications of the arrangements or perhaps even recording the arrangements in writing. Should that relationship not progress as planned, such as the tenant not making the rental payments in accordance with the agreement, the landlord might seek to enforce the tenancy agreement he or she contends is in place.  In those circumstances the Plaintiff Landlord would need to demonstrate that:
•    Legal relations have been created between the Plaintiff Landlord and the Respondent Tenant; and
•    The subject tenancy agreement was always one where the Tenant would be sued in the courts for any outstanding rent.
A failure to do so will invariably lead to the Court concluding that no relevant intention to create legal relations existed between the parties.   The Landlord would then not be able to rely upon that avenue of potential recovery.

Lending Money To Family and Friends
Other family dealings worthy of consideration here are those that involve the lending of money to family or friends.  Once again it is not uncommon for money to be loaned to family members or friends in circumstances where none of the participants involved obtain legal advice as to the implications of the arrangements.  Further it is also not uncommon for those arrangements not to be recorded in writing.

Should a situation arise within that relationship whereby the lender contends that the borrower has not made relevant payments under the loan agreement, the lender may wish to have recourse to the courts in order to recover the money he / she says is outstanding under the loan agreement.  Unless the Plaintiff Lender can prove that he / she would subject that Defendant Borrower to being sued in the courts for the return or repayment of the money, the Court is unlikely to find a relevant intention to create legal relations existed between the parties.   What was contended by the lender to be a loan would be seen to more akin to a gift.  Once again the borrower would then not be able to rely upon that avenue of potential recovery.

Conclusion
When relationships sour and/or love goes wrong the parties involved tend to look at their relevant relationships differently from when they were first created.  Return or recovery of goods, possessions and/or money is sought in circumstances where it may not have been, had the relevant relationship conformed to its originally planned path.  The path the court takes in such circumstances is not one similarly prone to change.  If it can be demonstrated that the parties intended to subject their agreement to the adjudication of the courts, then the courts will continue to entertain the matter. A failure to demonstrate that intention to create legal relations on the part of the relevant parties will invariably leave the parties without the assistance of the courts to resolve their dispute.

Those seeking to embark upon family dealings which do not manifest an intention to create legal relations would do well to consider the implications of that failure before they conclude their dealings.

Ross Bowler LLB

In Provident Capital Ltd v Anderson & Anor [2012] NSWSC 525 Adamson J was asked to consider the following legal concepts: Family Law; Interlocutory injunction; priorities; personal property; restrain from dealing; contract; equity; purchaser for value without notice not bona fide; delay; lack of frank disclosure to the Court.

The Facts
By Deed of Loan dated 21 December 2006, Provident (“the Plaintiff") lent the First Defendant (“D1") the sum of $5.7m. On the same day, in order to secure the monies advanced, D1 granted a goods mortgage to Provident (the Goods Mortgage) and a real property mortgage over the property known as "Barry Station".

The effect of the Goods Mortgage was to charge all of the personal property of D1 that was intended to be, or which was in fact, used for his farming business, wherever it was conducted.

On 25 June 2010, by short form of statement of claim for possession against a mortgagor, Provident commenced these proceedings against D1 seeking a judgment for possession of Barry Station (the Possession Proceedings)

On 26 August 2010, D1 and the second Defendant (“D2") filed consent orders in proceedings brought by D1 against D2 in the Family Court (the Family Court Consent Orders)

By application filed on 11 May 2011 in the Possession Proceedings, Provident applied for an order to join D2 as second defendant and also sought orders restraining her from disposing of cattle which have been removed from Barry Station. D2 was joined as second defendant to those proceedings.

On 30 April 2012, it came to the attention of Provident that D2 had advertised four items for sale on an Internet site, one of which was already listed as sold.

By letter dated 2 May 2012, solicitors for the Plaintiff brought this matter to the attention of solicitors for D2 and requested undertakings that no further items be sold and that the proceeds of any sold items be paid into court or into a controlled money account.

On 3 May 2012, solicitors for D2 advised solicitors for Provident that three of the four items had in fact been sold and gave the undertakings sought until 17 May 2012.

By oversight, the solicitors for Provident did not take any further action to obtain either an extension of the undertakings of an order of the Court until 15 May 2012, when the solicitors for Provident realised the imminent expiry of the undertakings.

On 16 May 2012, Provident sought an extension to those undertakings which was not forthcoming.

Accordingly, on 16 May 2012, Provident approached the Court for short service.

On 17 May 2012 the interlocutory application was heard.

The Law
The task to be undertaken in an application such as this is to determine:
•    Has the Applicant established that it has a prima facie case; and
•    Where does the balance of convenience lie.
•    Are there any disentitling matters which may make the grant of relief inappropriate?

Prima Facie Case
 “The plaintiff must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial."
(See Beecham Group Ltd -v- Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622-623 & Australian Broadcasting Corporation -v- O'Neil [2006] HCA 46; 227 CLR 57 per Gummow and Hayne JJ at [65])

In determining the facts relevant to such an application, the Court is not entitled to determine facts on any final basis.
(See Shercliff -v- Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 724 and 1st Fleet Pty Ltd -v- Australian Cooperative Foods Ltd [2006] NSWSC 881 per White J at [5])

Balance of Convenience
Relegation from secured creditor to unsecured creditor was sufficient prejudice to warrant the interlocutory injunction orders being made in this case.

Disentitling Matters
The Court found there were no disentitling matters, such as delay, which would make the grant of relief inappropriate.

Result
The Court granted the relief sought by The Plaintiff.

Conclusion
Of itself this case may not be particularly remarkable. However it is a useful reminder that the reach of the family law goes well beyond the Family Court and into the commercial law arena.

Ross Bowler LLB

Matters involving The Hague Convention On The Civil Aspects of International Child Abduction (“the Convention”) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) are wont to attract some excitement by practitioners, litigants and the community at large. However the law is applied in those matters as it is applied in any other matter.

Garning & Director-General, Department of Communities (Child Safety Services) [2012] FamCAFC 35 (9 March 2012) [2012] FamCAFC 35 was such a matter and it involved an application for a return order under Regulation 15.  In dealing with the subject application the Full Court of the Family Court of Australia reminded us of the following:

The Criteria
The Court must make an order to return the children if the Court was satisfied:
•    an application for a return order:
    •    was made; and
    •    had been filed within one (1) year after the removal or retention of the children; and
•    the Central Authority satisfied the Court that the removal or retention of the children was wrongful under sub-regulation (1A) of Regulation 16.

(1A)   For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
    (a)     the child was under 16; and
    (b)     the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
    (c)     the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
    (d)     the child's removal to, or retention in, Australia is in breach of those rights of custody; and
    (e)     at the time of the child's removal or retention, the person, institution or other body:
        (i)    was actually exercising the rights of custody (either jointly or alone); or
        (ii)    would have exercised those rights if the child had not been removed or retained.

That mandatory return is made subject to the conferral of discretion not to order the return of the children if the person opposing the return of the children establishes one or more of the matters prescribed in sub-regulation (3) of Regulation 16.

(3)     A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
    (a)     the person, institution or other body seeking the child's return:
        (i)     was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
        (ii)    had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
    (b)     there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
    (c)     each of the following applies:
        (i)     the child objects to being returned;
        (ii)    the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
        (iii)   the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
    (d)     the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

The Court has the power to order any conditions that it considers necessary to give effect to the Convention (See Regulation 15 (1)(c))

Conclusion
Those are the relevant criteria for consideration by the Court. Those are the criteria that will be discussed in argument before the Court. Those are the criteria that should be the subject of the material that purports to support any such application. Attacking the application in that fashion may give lawyers and litigants some respite from the excitement that those cases can generate.

Ross Bowler LLB

Footnote
This article has been published by CCH Australia in its Tracker Series

Ross Bowler, CCH, Australian Family Law Tracker, Issue 5, May 2012 "International Child Abduction, Overseas Travel and Parenting Arrangements"

Family Law practitioners may have thought that the introduction of the Personal Property Securities Act 2009 (Cth) ('PPSA') would not have any significant impact upon them. This article seeks to show the inaccuracy of that assessment.The scenario is adapted from facts outlined in this blog article  and this previous blog post. I have massaged those facts to suit my purpose.

There are many ways I could have approached this topic. I have chosen to observe a property adjustment as it might unfold with the PPSA now in play. It seemed to communicate the impact more clearly than a case note.

The Boat and Some Less Than Smooth Sailing
The Husband and the Wife had ended their fifteen year marriage. They were now in dispute over what arrangements ought be made in respect of the property from that relationship.  Proceedings had been commenced in the Federal Magistrates Court, but no trial date had been set for the matter.  As a result of interlocutory proceedings the Court had made orders for the sale of a business owned by the parties.  The proceeds of the sale of that business were to be paid into the trust account of the solicitor for the Husband. The Wife did not have a solicitor, she was conducting her case by herself.

Not long after those orders were made the parties signed a contract to sell the business to The Purchaser. Prudently the solicitors for the Purchaser did a search of the Personal Property Securities Register ('PPSR') to ensure the Vendors were able to sell all of the business items without any relevant charge over them.

The search revealed that a Finance Company had registered a Security Interest on the PPSR over "all present and after acquired property" of the Vendors. That registration included the boat of the Vendors. That boat was the subject of a fixed charge by a Finance Company and had been in place prior to the PPSR commencing on Monday 30 January 2012. Significantly the debt the subject of the charge had been settled with the Finance Company prior to the PPSR commencing on Monday 30 January 2012.

At the relevant time that fixed charge was registered with ASIC and at REVS. When the PPSR started some errors occurred in the migration of fixed charges from ASIC and REVS registrations. The registration of the fixed charge in respect of the boat of the parties was one such error. The PPSR showed that charge as being a current security interest held by The Finance Company in respect of the boat.

Even though the boat was not included in the sale of the business, the PPSR registration affected the sale.  Without a release of the security interest relating to the boat, the Purchaser would not get a clear title to the business it wished to purchase. The Vendors necessarily became affected by this development, in addition to the Purchaser.  The "add on" that the Finance Company had included for "all present and after acquired property" meant that the Vendors could not sell their other items unencumbered or free from any mortgage or charge.

The Finance Company had no authority to maintain the registration of the Security Interest in the boat as it appeared on the PPSR.

The solicitor for the Purchaser wrote to the Wife requesting that she and the Husband take appropriate steps to correct the position in relation to the incorrect registration of the security interest registered in respect of the boat.  The Wife did not respond to that correspondence from the solicitor for the Purchaser.

The solicitor for the Purchaser the wrote separately to the Husband and the Wife formally requesting that they give The Finance Company an Amendment Demand (See S.178) to correct the boat security registration situation.  That correspondence pointed out that any Seriously Misleading Defect in data relating to the registration of a security interest will cause a registration to be ineffective (See s.164 & s.165).

That correspondence from The Purchaser to the Husband also said if no appropriate action was taken within seven (7) days The Purchaser would make an application under s.182 to the Federal Magistrates Court for Orders correcting the situation and would seek its costs of so doing from the Husband and the Wife.

The Wife told the Husband privately that she would do nothing to correct the situation in relation to the boat, that the Husband would have to do it all himself.

The solicitor for the Purchaser also wrote to The Finance Company similarly requesting that the boat security registration situation be corrected.  That correspondence also said The Finance Company may be liable to the Purchaser for any damages the Purchaser suffered as a result of the delay in the sale of the business due to the incorrect registration of the Security Interest.  The Finance Company did not respond to the correspondence of the solicitor for the Purchaser.

The solicitor for the Husband then formally wrote to the Finance Company giving it an Amendment Demand (See S.178) to correct the boat security registration situation. That correspondence further stated:
•    The Finance Company would be required to register a Financing Change Statement on the PPSR;
•    That The Registrar may give the Secured Party an Amendment Notice of the amendment demanded (See s.180 (1) & (5)); and
•    That it was expected the Financing Change Statement will be registered after five (5) days of the Amendment Notice being given (See s.181)

Whilst the Finance Company eventually changed the registration, the sale was delayed by over a week. At settlement of the business transfer transaction the purchase/sale price was adjusted to compensate the Purchaser for the loss suffered by the Purchaser as a result of the incorrect registration of the security interest in relation to the boat.

The Husband took the view that the amount of compensation he had to pay to the Purchaser for the incorrect registration of the security interest in respect of the boat and its impact on the transfer of the business transaction did not warrant him commencing proceedings to recover that compensation from The Finance Company. However he took a different view with respect to the Wife. He had his solicitor write to the Wife informing her that he would be seeking an appropriate adjustment at their property settlement trial in due course, commensurate with her lack of cooperation in relation to correcting the registered security interest position with respect to the boat.

Ultimately the Federal Magistrate hearing the property adjustment trial agreed with the Husband on that point and adjusted the property of the Husband and Wife accordingly.

Conclusion
Whilst this might not be the way you would conduct such a matter, it may be an approach that finds favour with your opponent. Knowing how to respond to the challenges raised above is an important aspect of the job of a litigation lawyer. Being caught short or not knowing is a mistake your client may not forgive.

Ross Bowler LLB

Footnote
This article has been published by CCH Australia in its Tracker Series

Ross Bowler, CCH, Australian Family Law Tracker, Issue 5, May 2012 "The Business, The Boat, The PPSA and The Family Law Property Arrangement"

Ross Bowler, CCH, Australian Corporate, Company and Securities Law Tracker, Issue 5, May 2012 "The Business, The Boat, The PPSA and The Family Law Property Arrangement"

In Eaton & Eaton [2012] FMCAfam 9 (17 January 2012) Jarrett FM had before him an application for property adjustment under s.79 of the Family Law Act 1975 (Cth). Relevantly this is what he found.

Insofar as married couples are concerned, the law in relation to property adjustment is relatively settled and the approach to the determination of such an application is well established.
(See:
•    In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626;
•    In the Marriage of Ferraro (1993) FLC 92-335;
•    In the Marriage of Clauson (1995) FLC 92-595;
•    In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; and
•    C v C (2005) Fam LR 414.)

Generally speaking there are four (4) stages to the proper consideration of an application for property adjustment under s.79 of the Family Law Act 1975 (Cth):

1 Identify the property, liabilities, and financial resources of the parties at the time of the hearing.

2 Evaluate the contributions of the parties as defined by s.79(4) of the Act, with particular reference to those matters listed in s.79(4)(a), (b) and (c).

3 Evaluate the matters to which the Court is directed by s.79(4)(d) to s.79(4)(g), and in particular, s.75(2) of the Act, insofar as any of those matters are relevant.

4 Be satisfied that the order that is proposed to be made is just and equitable in all the circumstances.

The justice and equity of the actual orders proposed to be made is what the Court must consider. (See Russell v Russell [1999] FamCA 1875; (1999) FLC 92-877)

The preferred approach is to:
•    Deal with the superannuation assets and the non-superannuation assets separately; and
•    Apply the four step process set out above to each class of assets.

However the parties to such an application often agree for the Court to approach the matter on the basis that there was one pool of assets, which included both superannuation and non-superannuation assets.

Ross Bowler LLB

Overseas travel is a reasonably common occurrence in Australian life today. That travel can be either for business or pleasure, sometimes it is for both. Matrimonial or relationship disharmony need not be a complete impediment to such travel including the children of separated or divorced parents.

Application by a Parent To Take a Child Out of Australia Temporarily
In Fink & Abernathy [2011] FMCAfam 1467 (16 December 2011), amongst other issues, Scarlett FM dealt with an application by a parent to take a child out of Australia temporarily.  After having recourse to Kuebler & Kuelber [1978] FLC 90-434; [1978] Fam LN 4; Line & Line [1997] FLC 92-729; and Sefu & Gyasi [2010] FMCAfam 1004 the Court found the following to be relevant considerations in such an application:

- The degree of risk that the child will not be returned to Australia; and
- Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

In Bray & Constable [2011] FMCAfam 1397 (16 December 2011) Kelly FM found the Court should also consider whether:
- The proposed destination may expose the child to any risk or threat of harm; and
- The travelling parent has satisfied the Court regarding their bona fides.

Degree of Risk
Scarlett FM found further that the degree of risk that the departing parent may choose not to return to Australia is considered in light of the following:
- The existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate; the existence of business interests, or the residence of close family and friends here);
- The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues); and
- The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate; the existence of business interests; or the residence of close family and / or personal friends there)

Cash Security
Insofar as providing a cash security in such an application is concerned, Scarlett FM found the purpose for so doing is to provide a sum:
- Which will realistically entice the person removing the children to return; and
- To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

PACE Alert / Airport Watch List
Touching briefly of the issue of PACE Alerts, in addition to the foregoing, relevant considerations in any application for a PACE Alert or for the names of the children to be placed on the Airport Watch List are whether:
- The restrictions as sought by the applicant are unnecessary and unduly restrictive.
- To do as the applicant proposes will doom the parties to further litigation in the future; and
- That further litigation will not in the best interest of the Child.

Conclusion
Like the best travel experiences good preparation can improve the outcome immensely. Properly addressing the issues raised above in your application material will provide the Court with the opportunity to fully consider whether the requested temporary overseas travel with the children of the relationship is appropriate.

Ross Bowler LLB

Footnote
This article has been published by CCH Australia in its Tracker Series

Ross Bowler, CCH, Australian Family Law Tracker, Issue 5, May 2012 "International Child Abduction, Overseas Travel and Parenting Arrangements"