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What is considered “proper opportunity”

Yes, his Honour responded by saying, in effect, that orders from above meant he should only lock up the mother as a last resort. Since his Honour had tried everything else, this was a clearly the last resort (par 15). 

I guess the practical take-away from this is that parents can expect the Court to do nothing about breaches for a long time before it does something. Even then, I wonder what would have happened if the mother had have been represented in previous contraventions - could she have more effectively presented herself as a victim and the father as a bully?

Bahan vs Pinder 2021 demonstrates yet another instance, where when no are children involved, a female judicial officer puts the 'sexual expenditure and consumption worth' of a female at the expense of the males estate.

Is it even possible to trump a females ignorance, speculation, allegation and innuendo, when it comes to a cash grab from the male by the part of the female party?

Clearly a lazy and bias verdict based solemnly on social expectations from a bygone time.

To start the crawl moving forward as a society, the court must across the board, clearly demonstrate the demand for female accountability.

This must be highly relevant where there is substantial assets brought into the relationship by the male (and children) and none by the female. Defaulting on the reliance of a females entitlement and privilege over a male (ad hoc father), as in the past, is simply not enough any longer.

It must be seriously considered time to bring back fault cause and effect.

Sorry to see what you are going through unfortunately at this time of year in an ordinary year would be very hard to get an urgent hearing and this is no ordinary year between the merger of the Family Court into the Federal Court and COVID the Court was already stretched to the limit. 

Without seeing what you submitted (which you should not post here in any case) its impossible to say what was not compliant).

Please click on this link and book a time for a call to discuss your matter over the phone so we can go over your options.

https://calendly.com/select_a_day_and_time/15min 

Elisabeth HA ( DerHou on FLAST) 

You need to get proper legal advice. To have the documents checked for the non-compliance issues and to fix will not cost $100,000. The sooner you get the initiating documents correct the better you will be because if you wait you will be giving the other party reasons to have the proceedings dismissed and then you will need to start again.


The full paragraph, as I understand it, says two things:

  1. Judges are entitled to decide what's good for the child based on the judge's own values (which may be very different from other judges' values).
  2. There's no perfect answer, a judge need only get it roughly right.

Interesting to think that if this the prevailing law with regard to residency decisions, why it should not be broadly understood by everyone as such.

The text of the paragraph is here...

151. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G[89], Lord Fraser of Tullybelton pointed out:

"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
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Its not possible to have a decision without orders UNLESS you consent. 

But we want orders. We don't want to spend all this money proceeding and still not get orders. Orders are our number 1 priority because mother is so changeable and unreliable for sticking to an agreement. I am worried that what will happen is there will be a decision that orders are not needed - is that possible?

 

1.  Yes there is always a way to avoid final orders if both parties agree down the track.

2.  You are best to seek clarification on the admisibility of documents with your lawyers, without seeing them its imposible for anyone to say with any surity.

3. You can present your own letters if they were submitted as calderbank offers to the OP.

4. In your case consider contacting Danny Mediator or booking a call here :

https://calendly.com/select_a_day_and_time/15min?month=2021-11 to discuss the option of private mediation with binding heads of agreement to be converted to consent orders for registration with the Court.

Via Stephen Monaro 

A letter written in negotiations is privileged - the words without privilege aren’t required. Can’t be used in evidence.
 
Consent orders aren’t expensive in the scheme of things.
 
It’s impossible to say whether and what orders you might get - depends upon the evidence.
 
Have a read of Part VII of the Act, especially s60CC
K B
 
Don't go to court. Try again put into place a parenting plan. Truly taking this to court when the OP has agreed to everything is the worst thing you can do. You'll regret it

Mediation 1 (2018): Mother initiated. Mother sought full parental responsibility and 100% care. Father refused. Mother withdrew from mediation.

No further action taken at this time.

Father spent 7 hours per week with child - aged 12 months at the time.

 

February 2020 - lots of complicated circumstances, but basically, because of COVID, care increased to 50/50.

From October 2020, mother seeks to reduce time with Dad. Dad declines. All of this is in informal emails between the parties.

 

Mediation 2 (through RA - 2021): Mother initiates, main dispute is where the child goes to school in 2022. Mother seeks that child goes to the school for which she is zoned. Father seeks a halfway point. Mother agrees to: Equal share arrangement, school half way between the two residences.

[in direct emails to father, mother withdrew support for school half way between, and raised concerns about a 50/50 shared care arrangement]

 

Mediation 3 (through RA - 2021): Mother agrees to: 50/50 shared care arrangement and school half way between, and parties agreed to make approaches to 3 schools to accept an out of zone enrollment

[mother withdrew from mediation. Father sought legal advice]

 

THEN

 

Father's lawyer wrote to mother with draft Consent Orders - father relocated to be within the same school zone as mother, to take school dispute out of the question. Key component of draft Consent Orders to formalise equal parenting and 50/50 shared care.

 

Mother's lawyer replies and says: Reduction in time from 7/7 nights a fortnight to 5/9 nights a fortnight in favour of mother because: 1) child is tired after being with father 2) father does not have a consistent routine and 3) child has a sibling at the mother's house and she wants them to grow up together

 

Father's lawyer responds and says, no to 5/9 and if mother won't agree, we should stop exchanging letters and commence proceedings. Father's lawyer refuted arguments 1) Childcare met with both parents and said both of the Mother's children fall asleep at childcare on mum's days 2) father produced 22 text messages demonstrating that he has communicated his routing with child to mother, and that actually the parents do co-parent well but for some areas of dispute 3) father is supportive of child's relationship with his sibling, but this should not rebut the presumption of 50/50 care for parents

 

Mother's lawyer replies, agreeing to everything and then saying because agreement has been reached, neither a parenting plan nor Orders are necessary

 

Father's lawyer replies saying Orders are essential, please reconsider your position

 

Mother's lawyer replies saying, Nope, not necessary, and now this matter is closed, and they no longer hold instructions for the Mother.

 

Father's lawyer writes to mother directly, saying, father believes orders are essential,  we will file proceedings in 14 days unless you respond saying you would like to enter into negotiations for Consent Orders.

**********************

 

Questions:

- If we commence proceedings, is there any way that we could still walk away without Orders?

- Are all those letters and is all that history able to come up in court? The letters from her lawyers did not have "Without Prejudice" written on them, but our first letter did.

- Can we present our own letters that have "Without Prejudice" written on them if we chose to?

- What happens from here? Do we have to go back to the start and have mediation? If she agrees to everything in mediation EXCEPT having a binding agreement, what happens then?

 

 

 

H K

It could be because she wants to trial the agreement to see how the child/ren will cope.
 
It’s easy for us adults to come up with arrangements that we think will be good for the kids but until it’s out into practice you never really know how the kids cope.
 
I’d say give it a go and re asses in time. If it works then great but if you see she’s not sticking to the orders or changing things or the kids aren’t coping then go to court.
 
Court is costly but if you find the agreement is working well then you can lodge the agreement to court to have them made into consent orders.

H M

I don’t know the technicalities in this situation but if it’s taken 6 months to agree I reckon you should get it locked in in orders. Wouldn’t they be consent orders? Which would preclude need for trial? As I said, don’t know about the legalities or technicalities but having orders is very very useful in providing certainty and stability.

You can also include a clause to review cosent orders at such and such a time.

M L

Why not try it her way? See if you can do things without orders and if not then push ahead.

Hi, 

Your question is unclear. 

What was the outcome of Mediation?

What Orders is the mother opposing?  

Why is it costly ?  What costs are associated with these orders?

If the letters were not part of the mediation process and not marked "without prejudice" then they can be used as evidence in Court.

As to how compelling it is, depends on how long a piece of string is.

Start what process and end up without orders? 

People oppose things for all sorts of reasons, here it seems to be due to costs according to what you said earlier.

Added a Digest 

Kurata & Commissioner, Western Australia Police [2021] FedCFamC1A 57 (19 November 2021)

The mother who came to Australia with her two children to visit friends and family decided to stay here contrary to what was agreed, the father filed  a return application which was granted and the mother ordered to return to the United Kingdom with the Children, she as filed an appeal from those orders requiring two children to return to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).  The Court, in deciding whether to grant the appeal, assessed the submissions on wrongful retention and grave risk of harm.

Facts:

The parents met in 2002 and subsequently married in Western Australia in 2005.  In 2007 the parties relocated to the United Kingdom in the course of the father’s employment.  Child A was born in the United Kingdom in 2009.  In 2012 the mother travelled to Australia with Child A for a job opportunity. The father remained working in the United Kingdom.  

Child B was born in State A in November 2012.  In January 2013 and following a visit to the mother’s family, the parents and the children returned to the United Kingdom.  The parents separated in November 2015 following an au pair complaining of inappropriate conduct by the father.  The father left the former family home in Area A.

Following separation the children lived with the mother and spent regular time with the father.  The parents and children regularly travelled together as a family after separation including to Country A in October 2016 and December 2018, and to Country C in July 2017.  In July 2019 the mother relocated with the children to the suburb of Area B in County A and the father remained living in Area A.  With the mother’s consent, the father began spending increased time with the children at the mother’s home in County A due to the father's unemployment.  

In June 2020 the father consented to the mother and the children travelling to Australia for the purpose of visiting their maternal grandparents, he claims, on the basis that the children would return to the United Kingdom prior to the commencement of school on 1 September 2020.  The mother’s contention, which was not accepted by the primary judge, was that her agreement to return the children for the start of school on 1 September 2020 was conditional upon the state of the pandemic in the United Kingdom.  

On 17 June 2020 the mother and the children arrived in City D, Western Australia and, in accordance with Australian government health regulations, entered a 14 day hotel quarantine.  The parents agreed to enrol the children in school in Australia and on 20 July 2020 the children commenced their schooling at School D.  In mid-August 2020 the mother informed the father she would be returning with the children to the United Kingdom by the end of August 2020.  At or around the end of August 2020 the father secured employment in the United Kingdom.

On 3 November 2020 the father completed his request to the International Child Abduction & Contact Unit, Office of the Official Solicitor in the United Kingdom for the return of the children to the United Kingdom pursuant to the 1980 Convention.  On 3 December 2020 the applicant SCA filed its Form 2 Application Initiating Proceedings.  On 10 December 2020 orders were made ex parte restraining the mother from removing the children from the Commonwealth of Australia, placing the children on an Airport Watch List and requiring the mother to surrender their passports. On 18 June 2021 the primary judge made the order for return and on 30 June 2021 the mother lodged her Notice of Appeal against the Order. 

Issue:

Whether or not the appeal filed by the mother should be allowed. 

Applicable law:

Family Law Act 1975 (Cth) ss 93A, 94 - has an effect that the appellate court shall have regard to the evidence given in the proceedings before the primary judge out of which the appeal arises; has power to draw inferences of fact; and, in its discretion, may receive further evidence on questions of fact. 

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16, 26 - pursuant to which the Return Orders were made. 
 
Fox v Percy (2003) 214 CLR 118[2003] HCA 22 - provides that within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  
 
Handbury v State Central Authority (2020) FLC 93-937; [2020] FamCAFC 5 - provides that subjective intention on the part of the person retaining the child is relevant only in cases of repudiatory retention.
 
House & The King (1936) 55 CLR 499[1936] HCA 40 - held that if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
 
In re C (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1[2018] UKSC 8 - Lord Hughes referred to the word “sanction”, to describe an exercise of custody rights that results in the lawful removal or retention of a child in another country. 
 
In re R (Children) (Reunite International Child Abduction Centre intervening) [2016] AC 76[2015] UKSC 35 - stated that there is no rule that one parent cannot unilaterally change the habitual residence of the child. 
 
LK v Director General, Department of Community Services (2009) 237 CLR 582[2009] HCA 9 - authoritatively settled the law in Australia relating to habitual residence for the purposes of the 1980 Convention.
 
Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128 - supported the proposition that the test is not for the court to apply a comparison of risk. 
 
TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515; [2000] EWCA Civ 337 - applied a list of factors to be considered on the exercise of the discretion to refuse return.
 
Warren v Coombes (1979) 142 CLR 531[1979] HCA 9 - provides that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. 
 
Zafiropoulos & State Central Authority (2006) FLC 93-264[2006] FamCA 446 - adopted the list of relevant factors in TB v JB.

Analysis:

The appellant mother concedes that the children are under 16 years old, the father has rights of custody pursuant to the laws of the United Kingdom and that he was actually exercising the rights of custody or would have exercised those rights had the children not been retained.  However, the mother does not concede the date of alleged wrongful retention (Ground 1) ; that the children remained habitually resident in the United Kingdom after 17 December 2020 (Ground 2); and that her retention of the children in Australia was in breach of the father’s rights of custody (Ground 3).  The mother alleges (but the father denies) that he agreed that the children could remain in Australia until 17 December 2020 or until the effects of the pandemic subside.

The Applicant’s case is that the Respondent wrongfully retained the children on or around 1 September 2020.  At the time the children left the United Kingdom, the Court was satisfied by the communications between the parents that they agreed for the children to travel to Australia, for a temporary stay only.  Further, they agreed the children would return to the United Kingdom, in time for the commencement of the school year.  It was reasonably open to the primary judge to find that the father's conduct was consistent with his requirement that the children be returned to the United Kingdom as promptly as practicable. 

At that stage, the father had only two options to secure the return of the children – namely, to persuade the appellant to return the children voluntarily; or to await the outcome of Hague Convention proceedings, which would take considerably longer.  The primary judge analysed the evidence carefully and came to the conclusion that the father was attempting to get the mother to commit to return the children voluntarily at a specific time.  Senior counsel for the mother specified that the grave risk of harm arises from making and implementing the return order because of the psychological effects on both children.  The mother bears the onus of proving that there are inadequate support services for Child A in the United Kingdom. 

The Court is satisfied that the trial judge’s finding that the mother had not discharged that onus was a conclusion which was open to the trial judge.  Evidence falls short of establishing that the degree of psychological harm could be characterised as substantial, weighty and comparable to an intolerable situation.

Conclusion:

Ground 1 fails, as there was ample evidence to support the primary judge’s conclusion that Ms Kurata wrongfully retained the children in Australia on 1 September 2020. The primary judge’s finding that the children habitually resided in the United Kingdom prior to their wrongful retention in Australia was patently correct, and hence Ground 2 fails.  The finding of acquiescence which Ground 3 contends ought to have been made by the primary judge, was not open on the evidence, and hence no error by the primary judge is established.  There is no substance to the contention advanced under Ground 4 that the return of the children to the United Kingdom would expose them to a grave risk of harm, or place them in an intolerable situation.  The Notice of Appeal is dismissed.

Added a Digest 

Valasco & Pellam [2021] FedCFamC1A 70 (19 November 2021)

The primary judge dismissed applications seeking to set aside a warrant for possession and consent orders.  The appellant opposed the orders of the primary judge alleging collusion and forgery against the respondents.  The Court, in resolving this dispute, assessed whether or not adequate notice was given to the appellant of the issue of a warrant for possession. 

Facts:

The parties have been engaged in parenting and property proceedings in the Federal Circuit Court of Australia since 2018.  On the 28 January 2020, a judge of the Federal Circuit Court made a suite of property settlement orders by consent (“the consent orders”) so that the respondent was to receive 65 per cent of the net proceeds of sale of the Suburb C property and the appellant 35 per cent. 

The parties’ share of the proceeds was to be paid to their lawyers in the first instance and not directly to them.  Otherwise each party was to retain the assets in their possession.  The orders provided for the wife’s credit card debts to be paid from the proceeds of sale before the division of the proceeds of sale. 

On 20 October 2020, the respondent sought an order requiring the appellant to leave and not to re-enter the Suburb C property so it could be sold. 

On 11 December 2020 the respondent sought the issue of a warrant for possession of the Suburb C property and the forcible removal of the appellant from it. 

On 23 December 2020, a writ of possession was issued to remove the appellant from a property subject of the consent orders so as to enable its sale pursuant to the consent orders. 

On 28 January 2021, he filed an application seeking to set aside the issue of the writ. 

By a further Application in a Case filed on 29 January 2021 the appellant sought to set aside the consent orders themselves.  He was unsuccessful and both applications were dismissed on 14 May 2021.  Appeal No. EAA 50 of 2021 is against that dismissal.  On 2 June 2021, the appellant filed an Application in a Case seeking a stay of the orders made on 28 January 2020 pending determination of Appeal No. EAA 50 of 2021. 

The respondent did not oppose an order staying Order 1(e) of those orders (which provided for the distribution of the net proceeds of the sale of a property at Suburb C (“the Suburb C property”) to the lawyers for the respondent as to 65 per cent and the previous lawyers for the appellant as to 35 per cent).  That order was an order that the net proceeds of sale be held in the trust account of the respondent’s solicitor pending determination of the appeal.  The application was otherwise dismissed.  Appeal No. EAA 75 of 2021 is against those orders.

On 28 January 2021 the appellant filed an Application in a Case seeking that the orders made on 23 December 2020 be reviewed and that a lawyer be appointed to represent the appellant.  On 29 January 2021 the appellant filed the application seeking to set aside the consent orders. 

Issue:

Whether or not adequate notice was given to the appellant of the issue of a warrant for possession. 

Applicable law:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b) - provides that a refusal to set aside consent orders is an interlocutory order and leave to appeal is required. 

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 - pursuant to which and in accordance with the direction of the registrar, the respondent produced a costs schedule claiming $6,880.30 which was, at the time of its preparation.

Edwards v Noble(1971) 125 CLR 296[1971] HCA 54 - where the findings were clearly open on the evidence. 
 
Lee v Lee (2019) 266 CLR 129[2019] HCA 2 - where the matters relied on by the appellant do not demonstrate that the primary judge’s findings are contrary to incontrovertible evidence or compelling inferences and are not glaringly improbable. 
 
Metwally v University of Wollongong (1985) 60 ALR 68[1985] HCA 28 - relied upon in the assertion that the transcript was not accurate was not made to the primary judge.  Had it been made, evidence could have been called on the issue and the audio obtained.  It is therefore now too late to raise this allegation

Analysis:

The appellant asserts that the transcript does not reflect what actually occurred.  He submits that the primary judge erred by not listening to the audio recording itself and instead relying on the transcript.  However, the appellant did not explain how the transcript, which is prepared by an independent organisation from its own recording, could be altered in such a significant way.  It was also contended that Mr B, the counsel for the appellant, had a conflict of interest because the appellant’s share of the sale proceeds were to be paid to him, yet Mr B gave evidence on behalf of the respondent.  

The consent orders do not permit Mr B to retain anything over and above whatever he might be entitled to retain.  They merely provide that the orders would be complied with by payment to the parties’ lawyers rather than directly to the parties.  The appellant agreed to this course when he signed the consent orders.  The fact that Mr B was called by the respondent to give evidence does not establish collusion of any kind.

An employee of the respondent’s solicitor, Ms R, deposed in her affidavit filed on 17 December 2020, that on 11 December 2020 she sent the appellant a copy of the Application in a Case and the supporting affidavits filed on 9 December 2020 by registered post and to four email addresses used by the appellant.  The appellant claims that he did not understand the later email.  That carries an implicit admission, contrary to his evidence, that he did receive the documents.  The appellant conceded that he received the email of 11 December 2020.  He was therefore properly served.

Conclusion:

The Court dismissed the Application in an Appeal filed on 26 August 2021.  The application for leave to appeal the orders made by the primary judge on 14 May 2021 and the application for leave to appeal the orders made by the primary judge on 18 June 2021 are likewise dismissed.  The appellant is to pay the respondent’s costs fixed in the sum of $6,880.30. 

Added a Digest 

Glover & Webster [2021] FedCFamC1A 69 (19 November 2021)

The parties entered into a Binding Financial Agreement.  In the hearing on whether there is property in existence not covered by the BFA, the primary judge declared that the BFA covers all the assets, liabilities, superannuation, financial interests and financial resources of the parties and there are no interests not covered by the terms of the BFA.  By a Notice of Appeal filed on 6 May 2021, the first appellant appeals that declaration. 

Facts:

The parties lived together from about 2010 and separated in 2015.  On 1 July 2010 the parties entered into the Binding Financial Agreement (“the BFA”) pursuant to Pt VIIIAB of the Act.  The agreement was to “deal with the division of their property and financial resources and the maintenance in the event of the breakdown of their relationship”.  In separate annexures to the agreement the assets and financial resources of each party is set out. 

It was stipulated in the settlement that the parties shall make no claim at law or in equity in relation to any further property that the other acquires in her sole name with money accumulated from her sole earnings or other income received by her during the relationship.  After the parties separated, the first respondent commenced proceedings seeking a declaration that the BFA was binding on him and the first appellant.  He sought that Q Pty Ltd (“the Q management business”) be sold and the net proceeds be divided between him and the first appellant.  The first appellant sought a declaration that the BFA was not binding on the parties and should be set aside. 

In the alternative, she sought a declaration that there was property which was not captured by the terms of the BFA and she sought orders altering the parties’ property interests.  On 17 December 2018 the judge declared the financial agreement to be binding on the parties.  It is the first appellant’s contention that shares in businesses operated by the first respondent’s Queensland businesses are owned by entities not listed in the first respondent’s schedule of assets and resources to the BFA, and further, that the shares were acquired as a joint venture by them and to which the first appellant made contributions.  The first appellant further contended that the first respondent had failed to provide full and frank disclosure.

On 8 April 2021 a judge of the Family Court of Australia declared that a BFA entered into between the parties on 1 July 2010, covered all the assets, liabilities, superannuation, financial interests and financial resources of them or each of them and, as a consequence there were no interests not covered by the terms of that financial agreement.  The effect of the decision was that there was no available property about which to make a property settlement order pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) as sought by the first appellant.   

By a Notice of Appeal filed on 6 May 2021, the first appellant appeals that declaration contending that the primary judge erred in finding that the evidence of the forensic accountant was relevant only to a consideration of the parties’ property interests, not to whether there exists property not covered by the BFA; that there was no property not covered by the BFA; and that corporate shareholdings and trusts are the same as personal holdings.

Issue:

Whether or not the appellant has standing to appeal.

Applicable law:

Family Law Act 1975 (Cth) s 90SM - provides that in property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:

(a)  in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or

(b)  in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property

Bankruptcy Act 1966 (Cth) ss 58(1)(b)60 - by virtue of which were these applications to be re-instated, then heard, and then successfully determined in her favour, any property received by her would vest in her trustee. 
 
Cummings v Claremont Petroleum Pty Ltd (1996) 185 CLR 124[1996] HCA 19 - provides that a money judgment entered against a bankrupt has the effect of increasing the amount of the debts provable in his estate.  
 
Guirguis v Guirguis (1997) FLC 92-726[1997] FamCA - where the Full Court accepted that a bankrupt party cannot appeal property orders where the subject of the orders vests or will vest in the trustee in bankruptcy, because the bankrupt lacks sufficient interest. 
 
O’Neill v O’Neill and Ors (1998) FLC 92-811[1998] FamCA 67 - provides that the answer to the question posed above depends on the characterisation of the order from which this appeal is brought and the interest in that order.

Analysis:

The appeal was against property settlement orders, with the appellant husband becoming bankrupt between the making of those orders and the filing of the Notice of Appeal, which was dismissed as the effect of the bankruptcy was to leave the appellant husband without the necessary interest to support the institution of an appeal in his own name.  It was submitted that a bankrupt party cannot appeal property orders where the subject of the orders vests or will vest in the trustee in bankruptcy, because the bankrupt lacks sufficient interest.  The orders comprised two categories.  First, those relating to the property of the bankrupt appellant husband, which vested in the trustee upon the making of the sequestration order, and secondly, those which related to a claim by the bankrupt appellant husband for property which would vest in the trustee if successful.   

Conclusion: 

In the circumstances discussed, the full Court held that there was no necessary interest to support the filing of the appeal.  The Court dismissed the appeal. 

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