Q6: DISTRIBUTION OF PROPERTY
The family Law Act 1975 (Cth) provides the Family court and Federal circuit court of Australia with the power of making orders in relation to property of the parties. There has been a distinction between property and financial resources. In the present case scenario, Janet who had received $160,000 from her grandmother’s inheritance she uses for a frequent flight trip to her family at Brisbane. This is her resource and not her sole property which Jack is subject to1. Under section 79 (4) clause (a-c), property adjustment is done when the home-maker or the mother of the children does not have subsequent financial resources to maintain herself and her child after separation. This contribution is to be done by the male earner or the husband for the welfare of the family. Part VIII A of FLA allows two adults to enter in a legal union comprising of financial agreement that includes maintenance and substitution of the property. Similar case was observed in case of Kane v Kane 2013 where the parties had been married for 30 years2. This agreement under part VIII also involves child maintenance complying with Child Support Act. With the present case scenario, Jack who previously used to work for an IT firm, now owns his own IT consultancy business is very successful is liable to take care of the children and his wife under section 90K(3). Positive material changes in circumstance of one party will eventually influence the case in terms of maintenance3. In the case of Janet, children were contemplated before the agreement was made prior to two days of marriage which further heightens Jack’s financial and social responsibility with the ‘material change in circumstance’.
However with too many material changes following the case, the children’s custody along with their right to parental property was at stake.
With their mother’s involvement with another man and their plans to get married might affect the court’s decision. Whereas, Jack’s illegal relationship with Tamara and his investment into them also would be influencing the hearing. Similar incident was noticed in the case of Bevan v Bevan4. As the former did not ignore her parental responsibility and the twin’s fondness for their grandparents the children’s custody has high chance for Janet. Grandparent’s involvement in the context of children and the grandmother’s distribution of property to Janet worth 130,000 helped her pay for her flights with her children to Brisbane. On the contrary, as per Family Law Act 1975, a husband should be contributing to the family expenses, maintenance of his home maker wife and children.
Jack is the only son of a wealthy couple has a property worth of $950,000 which was gifted by his parents to him on his 21st birthday. Janet moved into this house of his in Surrey Hills where she conceived and later got married in the same. Before the marriage, she was made to sign a document of one page that said in case of separation each of the party would leave with their own amount of contribution in the marriage. Therefore according to the signed contract, Janet would only leave with furniture of $12,000 that she brought with her and $8500 in her bank account. Janet was made to sign the contract on an up surging pressure created by jack that he would not marry her without the contract being signed. As she was already conceiving his children, she had no other option but to sign it. Even before the legal union took place, Jack had already contemplated divorce which apart from being emotionally abusive, it is also case of fraudulent under the Family Law Act 1975 (Cth). Section 23 and 23B along with section 51 of FLA addresses decree of nullity of marriage where one party was made to sign a contract under pressure. The present case study has Jack holding more legal ground than Janet irrespective of his misconducts with his children and wife and immoral activities. However as the agreement made before the marriage is null and void because of the presence of children and legal bond between the two parties, Jack is liable to take financial responsibility of both his wife and the children5. In this case Janet who does not own any property but has limited resources from her grandmother would be considered liability of Jack and can rightfully claim economical support for her and children under section 74(A) and 75(2) of FLA.
Q6: DISTRIBUTION OF PROPERTY