By Rosemary Dalby, David Barker
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Additional info for Essential Family Law, 2nd edition (Essential)
Creditors Section 79(A)(1) enables any person affected by an order made under s 79 to apply to the court to have it altered. In Bailey (1990), claimants in a controversial medical negligence case sought leave to intervene in property proceedings concerning the deceased doctor’s estate. The Full Court cited a number of cases dealing with unsecured creditors’ rights to support their finding that establishing what is ‘property’ for the purposes of the prerequisite stage in making s 79 orders, means establishing net assets.
His Honour warned that if in fact the sections had been intended to prejudice the interests of third parties, then it would have been necessary to examine their constitutional validity. However, his Honour went on to consider the position where the rights of a third party constitute a sham, brought into being as a device to evade obligations under the Act: Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.
Global approach or asset by asset approach Different considerations will apply in circumstances other than the typical ‘long marriage with children’ scenario where assets are blended and found to have been contributed to equally. The court’s discretion to make orders altering property interests is governed by the ‘just and equitable’ requirement. Hence, cases arise where it would be manifestly unjust and inequitable not to find assets held separately and apart (see Wilson and Dawson JJ in Norbis).
Essential Family Law, 2nd edition (Essential) by Rosemary Dalby, David Barker