Applications for nullity of a marriage are not very common in Australia. More often than not they are for religious reasons such as wanting to remarry where the person’s faith does not permit marrying in a church for a divorcee. Section 23B of the Marriage Act 1961 (Cth), as amended, sets out the grounds upon which a marriage may be void, which can be summarised as:
Prior to March 2004, it was the usual process for parties to each retain a valuer, whether it be for a business, the family home or any other asset that required valuing. If there was a difference between valuers they were then required to ‘hot tub’ and come up with a joint statement setting out any areas of agreement and any areas of continued disagreement. That process occupied a lot of court time and was quite expensive for the parties. In March 2004 there were a plethora of new rules introduced, most notably dealing with the appointment of single experts and also the requirement to disclose any other valuation evidence such as market appraisals, thus preventing parties from ‘shopping around’. Those rules have continued to evolve over time to the current rules, being the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). We now have a process where one party (usually the applicant) will submit the names of three proposed experts, the other party will choose, and then a joint letter of appointment is prepared. The parties should have minimal interaction with that expert, other than to provide the requested information or access.
Although strictly speaking it is not a ‘costs jurisdiction’ Costs Orders are often made where the circumstances warrant doing so, such as where a party’s conduct has lengthened proceedings or a party has continued to litigate notwithstanding a plethora of evidence suggesting that it would be preferable not to do so. Clients should be encouraged to think commercially in those circumstances.
Adoption proceedings are not common. Blended families are very much the ‘norm’ and have been for many years but there can sometimes be compelling reasons for seeking an Order for adoption. However, even where one of the proposed adopting parents is the natural parent they still need to go through the process, that is to seek leave from the FCFCoA to adopt the said child and then proceed through the relevant state court.
Unfortunately, the penchant for appeals is not solely confined to self-represented litigants. Practitioners should not expend costs opposing technical filing arguments where the substantive impact on their client is negligible.
Where a party has exhausted multiple avenues of appeal, including an unsuccessful application for special leave to the High Court, and then fails to participate in the final hearing of their own volition, a subsequent Notice of Appeal challenging those final orders was summarily dismissed for failing to identify any appealable error. Costs orders were made.
A Notice of Appeal where the applicant fails to file written submissions and instead makes oral submissions about perceived bias, is unlikely to survive a show cause hearing. Grounds of appeal must actually address the legal requirements for leave, not merely catalogue grievances.
Meint & B Pty Ltd — If a party’s application seeks orders that infringe the rights of an intervener or directly contradict a shareholders agreement, that party should withdraw those defective parts promptly when invited to do so, as delay in doing so will not shield them from a significant costs order in favour of the intervener — here, $99,916.55 at trial and a further $15,000 on appeal.
Meint & Lyall — A single expert report that fails to engage with the terms of a shareholders agreement will carry limited weight where other shareholders hold the power to set the sale price of the departing shareholder’s interest.
The Court cannot simply attribute no value to a superannuation fund where (allebit out of date) expert valuation evidence exists – doing so in this case, resulted in remittal. Practitioners should ensure valuation evidence is current and complete at trial, as gaps in evidence create appellate risk for both parties.
Frost & Frost (No 2) — Where a father poses an unacceptable risk of harm to a child, the Court will order no time even where supervised time is sought, and family violence will be taken into account as a factor in both contributions and the s79(5) adjustment. The parties’ failed attempt to discharge the single expert ultimately worked against them — having been unable to agree on a replacement valuation, the Court had no choice but to order the sale of the property.
Applications for nullity of a marriage are not very common in Australia. More often than not they are for religious reasons such as wanting to remarry where the person’s faith does not permit marrying in a church for a divorcee. Section 23B of the Marriage Act 1961 (Cth), as amended, sets out the grounds upon which a marriage may be void, which can be summarised as:
Prior to March 2004, it was the usual process for parties to each retain a valuer, whether it be for a business, the family home or any other asset that required valuing. If there was a difference between valuers they were then required to ‘hot tub’ and come up with a joint statement setting out any areas of agreement and any areas of continued disagreement. That process occupied a lot of court time and was quite expensive for the parties. In March 2004 there were a plethora of new rules introduced, most notably dealing with the appointment of single experts and also the requirement to disclose any other valuation evidence such as market appraisals, thus preventing parties from ‘shopping around’. Those rules have continued to evolve over time to the current rules, being the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). We now have a process where one party (usually the applicant) will submit the names of three proposed experts, the other party will choose, and then a joint letter of appointment is prepared. The parties should have minimal interaction with that expert, other than to provide the requested information or access.
Although strictly speaking it is not a ‘costs jurisdiction’ Costs Orders are often made where the circumstances warrant doing so, such as where a party’s conduct has lengthened proceedings or a party has continued to litigate notwithstanding a plethora of evidence suggesting that it would be preferable not to do so. Clients should be encouraged to think commercially in those circumstances.
Adoption proceedings are not common. Blended families are very much the ‘norm’ and have been for many years but there can sometimes be compelling reasons for seeking an Order for adoption. However, even where one of the proposed adopting parents is the natural parent they still need to go through the process, that is to seek leave from the FCFCoA to adopt the said child and then proceed through the relevant state court.
Unfortunately, the penchant for appeals is not solely confined to self-represented litigants. Practitioners should not expend costs opposing technical filing arguments where the substantive impact on their client is negligible.
Where a party has exhausted multiple avenues of appeal, including an unsuccessful application for special leave to the High Court, and then fails to participate in the final hearing of their own volition, a subsequent Notice of Appeal challenging those final orders was summarily dismissed for failing to identify any appealable error. Costs orders were made.
A Notice of Appeal where the applicant fails to file written submissions and instead makes oral submissions about perceived bias, is unlikely to survive a show cause hearing. Grounds of appeal must actually address the legal requirements for leave, not merely catalogue grievances.
Meint & B Pty Ltd — If a party’s application seeks orders that infringe the rights of an intervener or directly contradict a shareholders agreement, that party should withdraw those defective parts promptly when invited to do so, as delay in doing so will not shield them from a significant costs order in favour of the intervener — here, $99,916.55 at trial and a further $15,000 on appeal.
Meint & Lyall — A single expert report that fails to engage with the terms of a shareholders agreement will carry limited weight where other shareholders hold the power to set the sale price of the departing shareholder’s interest.
The Court cannot simply attribute no value to a superannuation fund where (allebit out of date) expert valuation evidence exists – doing so in this case, resulted in remittal. Practitioners should ensure valuation evidence is current and complete at trial, as gaps in evidence create appellate risk for both parties.
Frost & Frost (No 2) — Where a father poses an unacceptable risk of harm to a child, the Court will order no time even where supervised time is sought, and family violence will be taken into account as a factor in both contributions and the s79(5) adjustment. The parties’ failed attempt to discharge the single expert ultimately worked against them — having been unable to agree on a replacement valuation, the Court had no choice but to order the sale of the property.
