Sunday 5 January 2014

New Year - history repeating

The New Year seems as good a time as any to reflect on that which makes the law at the same time marvellous and wearisome: the appeal process, aka history repeating.
 
 
Back in March 2013 my first post on this blog was about the complicated history of 'pre-nups' in Australia - and featured a reference to the 'pole dancer case'. I said:

"In this case the husband met the wife at a Sydney club around the time he separated from his first wife in the late 90s and they married some time later in 2005. They entered into an Agreement before marrying which provided for the wife to receive $3.25 million if their marriage broke down in four years. It ended within two. The husband, who apparently has a net worth of around $16 million, claims that the wife acted fraudulently when she said she wanted to spend the rest of her life with him and have children with him. However, he’s also relying on an allegation that his solicitor did not give him the necessary independent legal advice. In 2011 the Family Court determined that the Agreement stood. The husband is currently appealing that decision."

That we live in a country with a clear, well-practiced appeal process is something to celebrate. That it is not just the Parliament that can make the laws of this land, but that we have a judiciary that creates case law which reviews, modifies or even overturns Parliaments legislation, is a cornerstone of our democracy. That it can take 1-2 years for an appeal to be heard has been acknowledged as trying. That, Parliament and the Courts can drastically redirect the laws of this land in widely different directions in turn can test all concerned in the legal community.
 
In late 2013 the Husband's appeal was determined by the Full Court of the Family Court, and he was not successfull.
 
You might have noticed, in amongst the celebration of the Ashes white-wash, a news article headed 'Husband in bid to stop $3.2 million pre-nup'. The SHM journalist, Louise Hall, reported that the Husband is now applying to the High Court, the final Court of Appeal, for special leave to appeal the decision of the Family Court.
 
The Husband's application for leave is based on the argument that the 2009 amendments to the Family Law Act ( - in 2009 the Federal government responded to a 2008 Court decision about so called 'pre-nup agreements' by relaxing the requirements in the Family Law Act slightly in an apparent attempt to ensure that people could still enter into such Agreements even if there were inadvertent or minor technical errors - ) are inconsistance and uncertain.
 
In the SMH article, Louise Hall quotes the Husband's junior counsel, Bill Washington who says: ''Sadly, in trying to solve the problem in the prenup section of the Family Law Act, the federal government has made an appalling mess of it".
 
The Husband's application for special leave is likely to be heard in the first half of 2014. We in the legal community, including the Federal Attorny General, will have to wait a little longer to see if there will be another about-turn in this area of family law.

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