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FM Neville in Canberra

Since 2005, he has been an Australian Research Council Doctoral Scholar at the Australian National University.

Anyone been in front of FM Neville in Canberra?

Thoughtful it seems and dealing with some very difficult cases…

Executive Secretary - Shared Parenting Council of Australia
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Judge Neville - principles of Mareva orders

From a post made by Harrington Lawyers in 2008
Federal Magistrates Court case: principles of Mareva orders
The Federal Magistrates Court in Sheehan and Sheehan had to consider the question of whether a bank account, of the husband and his new wife, which the former wife had found out about in the course of the proceedings, could be frozen.

Federal Magistrate Neville did not draw any adverse inferences against the husband, even though there seemed to be over $200,000 in that account and he had not disclosed its existence despite being under an obligation to disclose the existence of the account, but ordered that half of the money in the account be frozen.

Part of the difficulty was that the account was held by the husband with his current wife, she had deposited susbstantial sums into it, and she wanted nothing to do with the property settlement dispute between the parties.

In ordering the freezing of half the monies in the account, Federal Magistrate Neville reviewed the laws dealing with asset preservation orders, commonly called Mareva orders.

His Honour especially cited two High Court judgments by Justice Kirby about the nature of asset preservation orders:

The particular reasons given in disposing of one claim for an asset preservation order should not be converted into universal principles with invariable application. The case law in this topic is a field of single instances cultivated in a garden of interlocutory orders, nurtured in a wilderness of broad discretions. Unlike many English gardens, this one has a measure of orders stamped upon it, brought by analogy from the equitable rules developed for general injunctive relief. But excessive order and rigid rules would endanger the relief in question and be alien to its essential character….

In framing asset preservation orders, certain features must be observed. They take effect in personam. They are thus distinguished from remedies such as tracing which affect proprietary rights. They are interlocutory orders subservient to the main proceedings, but potentially vital to their utility. The grant of such relief is discretionary. They must often be provided (or withheld) in urgent circumstances where a propensity to shift assets, apparently to defeat a judgment, has already been manifested. The plaintiff must establish a real risk of assets being disposed of. No such relief should be contemplated without the provision of an undertaking as to damages. This is protective both of the defendant and of non-parties made subject to such orders. It acts as a sanction against ill considered applications or unjustified orders. It is the duty of the lawyers of the parties to remind the judge of this prerequisite. Various qualifications to the operation of such preservation orders are now well settled. [Internal citations omitted.] …

His Honour, in a note, refers specifically to various exceptions to asset preservation orders as including legal fees, living expenses, and the payment of debts.

He then concludes part of this discussion by saying …:
    … these considerations require that a very large measure of latitude be allowed to judges as to when they consider it "appropriate" to provide such relief, with the aim of protecting the position of an actual or potential judgment creditor and the process of the Court itself. Few judges, asked for such orders, have the luxury of the extended reflection availed of by appellate courts. In expressing the applicable principles, we should not overlook the practical exigencies in which orders of this kind are typically made.



This last statement is a reminder that while it might seem a good idea going to court to freeze everything, is that absolutely necessary? What really needs to be frozen (if anything) to minimise risk and to preserve property?

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

FM Neville

From the AG's office

Dr Neville was admitted to the Supreme Court of New South Wales in 1979, practising until 1986 with Norton Smith & Co. where he became a litigation partner.

Between 1992 and 2004 he was Research Fellow and Head of the Research Department of the Australian Catholic Bishops Conference.

During that period Dr Neville was involved in a diverse range of matters, including appearing in High Court litigation as well as proceedings before State and Federal anti-discrimination tribunals. Since 2005, he has been an Australian Research Council Doctoral Scholar at the Australian National University.

Dr Neville will take up his appointment on 2 July 2007 and will be based in Canberra.

Executive Secretary - Shared Parenting Council of Australia
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FM Neville is in fact Santa

To one father in Canberra this week Federal Magistrate Neville opened his sack and delivered the best Christmas present of all and that was some regular interim contact for a very deserving father who has had an extraordinarily difficult time, through no fault of the court, in being reunited and a relationship restored with his child. I have been following this particular matter for some time. It is noteworthy and that some credit should go to FM Neville for his sheer patience in the particular case.

Executive Secretary - Shared Parenting Council of Australia
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Do not make clerical errors in front of Judge Neville. My advice, so you can take it or leave it at your discretion.

I think this goes for all courts so make sure your paper work is in order; that is page numbers are numbered correctly on both court orders, affidavit material and annexes. Numbers must run concurrently, sub numbering with letters, check format and layouts. On the site previously we have posted extensively as to the format affidavit material must be presented in to meet court rules. Check that files are properly completed with all annexed documents to be correctly attached. Make sure dates and times are correct and shown, and that if you are involved in service of another party please double check that service has been properly effected and that you have the correct service documents as well as any acknowledgement of service if required.

If you are not fully satisfied with service and that it has been done then I would be inclined to seek leave to set another date.

DO NOT supply documents to the other side when you are walking in and expect a good result. Comply with the dates set down and make sure the other side has had adequate time to read the documents.

There is no point in appearing and then having to spend most of the critical hearing time messing around sorting out paper work and procedural compliance issues. Paralegals need to be especially aware and careful that they cannot make mistakes in the paper work, as not only will his very competent associates pick it up but it reflects poorly on practitioners who may already be running difficult and complex matters.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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