Final Exam June 2020, questions PDF

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FINAL EXAM – AUTUMN SESSION 2020 School of Law EXAM INSTRUCTIONS Read all the information below and follow any instructions carefully before proceeding. Clearly indicate which question you are answering.

UNIT NAME:

Family Law

UNIT NUMBER:

200633

NUMBER OF QUESTIONS:

4

VALUE OF QUESTIONS:

Part A – Short & Long Answer Question 1 – short answer, worth 7 marks Question 2 – short answer, worth 7 marks Question 3 – long answer, worth 12 marks Part B – Multiple Choice 12 multiple choice questions, worth 24 marks (2 marks each) Exam questions are worth a total of 50 marks.

ANSWERING QUESTIONS:

You must answer all questions in this examination.

LECTURER/UNIT COORDINATOR:

Brett McGrath

TIME ALLOWED:

2.5 hours

TOTAL PAGES:

8

RESOURCES ALLOWED Only the resources listed below are allowed in this exam.

Any printed or digital material

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PART A – SHORT & LONG ANSWER QUESTIONS Read the factual property dispute scenario below and answer Questions 1 & 2 (worth 7 marks each) and Question 3 (worth 12 marks) in the Examination Answer Booklets provided.

Factual Property Dispute Scenario John (35) and Kylie (34) have been married since May 2018. They bean living together the night they were married. They separated in May 2020. Before they were married Kylie did not work and was on a government pension. John was a successful businessman before they were married and continued to run his business during the relationship. Kylie tells you that the marriage was a whirlwind romance and that she felt lots of pressure to have the perfect wedding. Although Kylie is an Australia citizen, she was born in Durban in South Africa and her first language is Afrikaans, with English being her second language, although she is fluent in the latter. A week before the wedding to John in May 2018, John told her he wanted a financial agreement and that he had arranged for her to see a lawyer friend of his to sign-off on it with her. She questioned him as to why he asked her just a week before the wedding to sign a prenup, and he replied “it is just like in South Africa where you have to nominate how you want your property to be divided before you get married, so it’s just a formality. But if you don’t, I’m going to wonder if you are marrying me because you love me, or for my money”. Kylie was uncomfortable with signing the document, and started to panic that the wedding would be called-off if she didn’t sign. She went to John’s lawyer friend who gave her advice for about 20 minutes in his office, after which she then executed the financial agreement, took it to John who then had his lawyer execute the agreement with him. 3 days later, they were married in a lavish ceremony on Sydney Harbour. They did not have children. Kylie did not work during the relationship. Kylie and John had a house keeper, a grounds keeper, and a chef. John would take Kylie on a yearly holiday to Europe over the summer months and Kylie had her hair done each week, had Botox every 3 months, lash extensions every 2 weeks, and a personal trainer each week. Kylie and John did not own property together. John owns a large house in Vaucluse which is subject to a mortgage. John has continued to pay the mortgage, rates and insurances post separation. John earns $4 million dollars a year for his role as CEO for his company, he has $1.5 millions dollars in a managed share portfolio, he has an investment property in Bondi that is positively geared and has a personal savings account of $850,000.00. John has $130,000 in superannuation. Post separation John has moved out of the house in Vaucluse and he rents in Point Piper. Kylie remains living in the Vaucluse house while they negotiate a property settlement. John continues to pay the mortgage, rates and insurances in relation to that property. Kylie does not have any personal wealth and is now in receipt of a government pension of $250 per week. She uses this for her utilities and basic needs. John has cancelled the chef, house keeper and grounds keeper.

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QUESTION 1 (7 marks) Kylie seeks your advice about making a spousal maintenance claim against John so that he pays for the following: 

The chef



The house keeper



The grounds keeper



Her personal trainer



Her Botox



Her lash extensions

Advise Kylie as to whether she is entitled to spousal maintenance from John, and her prospects of success with respect to claiming the above expenses. Refer to the legislation and case law in your answer.

QUESTION 2 (7 marks) Kylie seeks your advice as to whether the financial agreement she entered into is binding or enforceable. Refer to the legislation and case law in your answer.

QUESTION 3 (12 marks) If there was not a Financial Agreement in place, provide Kylie with your advice as to the likely range of outcomes she might expect if the matter proceeded to the Family Court, and what steps the Court takes in determining what would be a fair property distribution for her. Refer to the legislation and case law in your answer.

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PART B – MULTIPLE CHOICE (24 MARKS) You are required to answer all 12 multiple choice questions. Each multiple choice question is worth 2 marks.

1. You are acting for a client who has recently separated from her husband. She says that she been forced to leave the former matrimonial home and is sleeping on the couch at her friends house. She has no income as her florist business recently went into liquidation, and is unable to draw down on her superannuation as yet. She has remaining $500 in her bank account. Her husband works for the NSW Police is still has a solid income and $50,000 in his bank account. She has access to no other funds. She desperately needs money to live of and potentially find somewhere to live. Would you advise her to: a. Instruct you to write to the Husband and invite him to attend Family Dispute Resolution as required under the 60I of the Family Law Act 1975. b. Instruct you to file an Initiating Application in the Federal Circuit Court seeking final property orders and a cash adjustment in her favour pursuant to s79 of the Family Law Act 1975. c. Instruct you to file an urgent spousal maintenance application in the Federal Circuit Court pursuant to s77 of the Family Law Act 1975. d. Ask to her provide you with a $500 deposit into your firms’ trust account before you commence acting for her. 2. The alteration of property interests for de facto couples is made by the Court pursuant to which section of the Family Law Act 1975? a. Section 75(2) b. Section 79(4) c. Section 90UD d. Section 90SM(1) 3. You are appearing before Registrar Hayward for a Case Assessment Conference in a financial matter in Sydney. You act for the Husband. The barrister for the Wife is making submissions to the Registrar that the Wife believes that the Husband ‘wasted’ $250,000 by gambiling it away playing poker machines at the Rooty Hill RSL over the course of 4 years. The Registrar asks the barrister to confirm what case law she is relying upon for her submission, to which the barrister replies ‘umm… Coghlan, Registrar”. The Registrar politely turns to you and says that it would be ‘tremendous’ if you could confirm to the Court what you understand to be the lead case in relation to ‘waste’ in financial matters. You state that the lead case in relation to a ‘wastage’ argument is: a. Potter v Granger [2005] HCA 5 b. Kowaliw & Kowaliw (1981) FLC 91-092 c. Famer & Bramley (2000) FLC 93-060 d. Chancellor & McCoy [2016] FamCAFC 256

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4. The case of Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337 (2 February 1981) relates to: a. The Court does not have jurisdiction to alter the interest of third-parties, unless it can be established that the third-party interest is a sham, puppet or that a party has control of the third party. b. The lead case in relation to the impact of family violence on the income earning capacity of a party pursuant to s75(2)(o) of the Family Law Act 1975. c. The case that outlined the requirement for the Trustee in Bankruptcy to become a party to financial proceedings before the Court and determine which creditors are paid at what time, and that a creditor cannot independently apply to become a party to proceedings if a Trustee is already appointed. d. That the jurisidiction of Courts administering the Family Law Act 1975 extends to joining third-parties to proceedings. 5. A prospective client comes to you with final consent orders made by the Family Court of Australia in October 2019, which they freely entered into with independent legal advice and having exchanged full and frank financial disclosure with their ex-partner. The total property pool that was disclosed was valued at approximately $1,250,000, of which they received 50% in the final distribution. However, a week ago they discovered that at the time of entering into the final consent orders, their ex-partner wrongly disclosed the value of a company they held a 100% interest in, worth $500,000, and which they used joint funds to invest in. They are asking how they can get the orders ‘undone’. You advise them, that” a. There is nothing they can do about the final consent orders now, as they are final and the Court cannot reopen them. b. They can bring an application to the Court pursuant to s79A of the Family Law Act seeking the setting aside of orders altering property interests pursuant to subection s79A(1)(a). c. They can bring an application to the Court pursuant to s79A of the Family Law Act seeking the setting aside of orders altering property interests pursuant to subection s79A(1)(b). d. They can seek to have the agreement set aside or terminated pursuant to s90K of the Family Law Act 1975. 6. When making an Iniatiating Application in the Federal Circuit Court of Australia seeking final orders with respect to property, you must file the following suite of documents: a. An Initiating Application; Financial Statement; Affidavit of your client. b. An Application in a Case; Financial Statement; Affidavit of your client. c. An Initiating Application; Balance Sheet; Financial Statement; Statutory Declaration of your client. d. A Notice to Admit Facts; Application in a Case; Balance Sheet; Affidavit of your client.

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7. The case of Kennon & Spry HCA 2008 held that: a. Frequent Flyer points are a financial resource for the purposes of calculating their value in the asset pool, subject to the s75(2) considerations. b. Where due administration of a Trust included the power to distribute the entirety of the trust property to either spouse as beneficiary, then the value of that right constituted the value of the trust property, and that the Court may characterise the trust as property to be included for division under s79 of the Family Law Act 1975. c. That if a party to a marriage has suffered severe family violence at the hands of their spouse, then the Court is open to consider a further percentage adjustment in that victim’s favour, if it can also be proven that it impacted their ability to make contributions to the marriage of the kind set out in s79(4) of the Family Law Acty 1975. d. That interest the wife had in the Spry Self Managed Superannuation Fund was deemed to be 50 percent considering the length of the marriage over long and the parties had in-effect a ‘partnership’ which warranted a 50-50 overal division of property, despite her not making an equal financial contribution to the marriage during that time. 8. You are appearing in a Concilation Conference before Registrar Basitani in the Family Court of Australia in Sydney. You act for the wife. During the course of negotiations, the solicitor acting the husband suggests that a way to reach a settlement may be for your client to consider accepting a superannuation splitting order, whereby she would receive approximately $50,000 of the husband’s superannuation into her superannuation account. The Registrar believes that the offer is ‘somewhat grounded in reality’ and would fall within the range of what would be considered just and equitable. Your client accepts the offer as a way of finalising the matter. It is a compromise, however your client can live with the decision. Registrar Bastiani asks that you begin drafting the final terms of settlement for her to consider making into final orders. You begin drafting the superannuation splitting order pursuant to: a. Section 90MT b. Section 79(1) c. Section 90SM(1) d. Section 90XT 9. In which case did the Full Court allow an appeal on the basis of the fact that a party to property proceedings has a duty to make full disclosure their financial affairs, and where there is clear evidence of non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party? a. In the Marriage of Weir (1992) 16 Fam LR 154 b. Descas & Descas [2013] FMCAFam 69 c. Stanford v Stanford [2012] HCA 52 d. Thorne and Kennedy [2017] HCA 49

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10. In the case of Bonnici v Bonnici [1992] FLC 92-272, which dealt with a 21 year relationship where the Husband received an inheritance two and a half years prior to separation and a second inheritance one year prior to separation. The Full Court stated that the inheritance was part of the property pool to be divided. However, the Court also decided that: a. if there are sufficient funds in the property pool to reach a just and equitable settlement, then an inheritance received late in a relationship could be treated as an entitlement of the recipient, and the Wife having made no contribution to the inheritance, was not to receive any benefit of it in the settlement. b. the inheritance monies received by the Husband were to be taken into account despite the Wife having made no contribution to the receipt of those monies, and she received a further adjustment of 7%. c. if the inheritance comprises the vast-majority of the property pool, then the party who has the care and custody of the children is to receive the bulk of the inheritance funds. d. the Wife would receive a further adjustment of the superannuation pool to compensate for the value of the Husband’s inheritance windfall. 11. Congratulations! You’re legal career has taken off, and you have been appointed to the Full Court of the Family Court of Australia, where you will hear Appeals. An appeal has been lodged in a property matter where the value of the former matrimonial home was in dispute. The Judge at first instance was prone to indulding mysticism, and accepted the evidence of the Wife in the matter that the former matrimonial home was worth $100,000 less than what the expert who valued the property had determined because her bedroom in the house was haunted. The Husband appealed this decision, arguing that the Judge at first-instance erred in applying the law. Do you: a. Disagree with the appeal – you wouldn’t buy a house that was haunted, and if you had to, you would certainly want a discount. b. Disagree with the appeal – the Judge was correct in applying the decision of Descas & Descas [2013] FMCAFam 69, which makes it clear that the determination of the value of matrominal property is what the ‘market’ will pay for it, not necessarily what an single expert would think at the time of the valuation. c. Agree with the appeal – the Judge at first instance was incorrect to accept the reduction in value of the former matrimonial home by $100,000, as it should have had an even-lesser value of $150,000, because ghosts scare you too. d. Agree with the appeal – the case of Descas & Descas [2013] FMCAFam 69 is applicable, where the wife’s asserting of the haunting was unbelievable and the Judge was satisfied the Wife had fabricated the claim for an ulterior purpose, as an attempt to influence the valuer to return a low valuation of the former matrimonial home, so that she may retain it.

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12. In the ‘5 step process’ for deciding property proceedings in family law matters, is it correct in relation to step 4 that: a. The Court considers that matrimonial property is common property, so therefore there is a presumption of equality when assessing how to divide property – that is, you start your assessment at a 50-50 division to each party, and work back from there. b. The Court considers the financial, non-financial, and parent and homemaker contributions of the parties pursuant to s79(4). c. The after the Court considers the ongoing needs of the parties, that it must the decide if it is just and equitable to make a decision as to whether there should be a property division. d. After assessing the contributions of the parties, and before determining what division of property would be just and equitable in all of the circumstances, the Court must look at the future needs of the parties by considering the factors outlined in s75(2).

END OF EXAMINATION

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