LS370 Family Law Exam Notes -UNE

LS370 Family Law Exam Notes - UNE

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INTRODUCTION TO FAMILY LAW (CH 1, 2, 3) – SEMINAR 1 ............................................................. 5 MARRIAGE, DIVORCE AND NULLITY (CH 4, 5) – SEMINAR 2 ......................................................... 10 CHILDREN AND PARENTS ......................................................................................................................... 15 PARENTAGE (CH 6) – SEMINAR 3 ............................................................................................................ 15

Children – parentage ................................................................................................................................ 15 Presumptions of parentage under the FLA .................................................................................................... 15 Children – Proving Parentage .......................................................................................................................... 15 Children – Artificial Conception ........................................................................................................................ 16 Surrogacy ............................................................................................................................................................. 16

CHILDREN AND PARENTS: THE LEGISLATIVE FRAMEWORK (CH 7) – SEMINAR 3 .............. 17 The United Nations on the Rights of the Child (p 250 Text) .................................................................... 17 Proceedings in respect of children under the Family Law Act 1975 ....................................................... 17 Parental Responsibility ............................................................................................................................ 19 Parenting Agreements .............................................................................................................................. 20

PARENTING ORDERS ...................................................................................................................................... 21 LEGISLATION EXTRACTS – SS 60B, 60CA, 60CC, 61DA, 65DAA ................................................................ 25 PART VII—CHILDREN ................................................................................................................................... 25

60B Objects of Part and principles underlying it ..................................................................................... 25 Subdivision BA—Best interests of the child ................................................................................................... 25

60CA Child’s best interests paramount consideration in making a parenting order ......................... 25 60CB Proceedings to which Subdivision applies .................................................................................... 26 60CC How a court determines what is in a child’s best interests ........................................................ 26 61DA Presumption of equal shared parental responsibility when making parenting orders ........... 28 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances .................................................................................................................. 28

CHILDREN AND PARENTS: THE EXERCISE OF DISCRETION IN REALLOCATING PARENTAL RESPONSIBILITY (CH8) – SEMINAR 4 ............................................................................. 31

SEMINAR 5 ..................................................................................................................................................... 41 ‘SPEND TIME WITH’ ORDERS ................................................................................................................. 41

Relocation Cases ...................................................................................................................................... 44 CHILD MAINTENANCE AND CHILD SUPPORT .................................................................................... 47

CHILD MAINTENANCE: SS 66B-66N FLA ............................................................................................ 47 66D Principles—when step-parents have a duty to maintain ............................................................... 47 66E Child maintenance order not to be made etc. if application for administrative assessment of child support could be made ....................................................................................................................... 47 66F Who may apply for a child maintenance order ................................................................................ 48 66G Court’s power to make child maintenance order ............................................................................ 48 66H Approach to be taken in proceedings for child maintenance order ............................................. 48 66J Matters to be taken into account in considering financial support necessary for maintenance of child ............................................................................................................................................................. 48 66K Matters to be taken into account in determining contribution that should be made by party etc. ......................................................................................................................................................................... 49 66L Children who are 18 or over ............................................................................................................... 50 66M When step-parents have a duty to maintain ................................................................................... 50 66N Determining financial contribution of step-parent ........................................................................... 51

CHILD MAINTENANCE AND CHILD SUPPORT ................................................................................. 52 CHILDREN AND PARENTS: THE LEGISLATIVE FRAMEWORK (CH 7) – SEMINAR 6 .............. 55

THE LESS ADVERSARIAL TRIAL ........................................................................................................... 55 69ZN Principles for conducting child-related proceedings .................................................................... 55

Question 2 – How is child’s voice heard? ................................................................................................ 56


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68LA Role of independent children’s lawyer ........................................................................................... 57 Family counseling in respect of children ................................................................................................. 58 Expert Evidence ........................................................................................................................................ 58 Interim Residence Orders ......................................................................................................................... 58 Enforcement of orders in relation to children .......................................................................................... 59 International Child Abduction .................................................................................................................. 60 Q. 8 - Hague Convention and Family Law (Child Abduction Convention) Regulations, 1986. .............. 60 INSERT PRINTED SECTIONS OF DIVISION 12A AND DIVISION 13A .............................................. 61 Family Law (Hague Convention on child abduction) Regulations 1986 ................................................. 61

FINANCIAL MATTERS: PART VII FLA – SPOUSE MAINTENANCE AND PROPERTY SETTLEMENTS FOR MARRIED COUPLES ............................................................................................ 64 SPOUSAL MAINTENANCE (CH 9) – SEMINAR 7 ................................................................................... 64

LEGISLATION – SPOUSAL MAINTENANCE ...................................................................................................... 64 PART VIII—PROPERTY, SPOUSAL MAINTENANCE AND MAINTENANCE AGREEMENTS ................................ 64

71A This Part does not apply to certain matters covered by binding financial agreements ............ 64 72 Right of spouse to maintenance .......................................................................................................... 64 74 Power of court in spousal maintenance proceedings ....................................................................... 64 75 Matters to be taken into consideration in relation to spousal maintenance .................................. 66 77 Urgent spousal maintenance cases .................................................................................................... 67

Jurisdiction and types of maintenance orders .......................................................................................... 68 Entitlement to spouse maintenance ................................................................................................................ 68 o Threshold: Section 72 ................................................................................................................................. 68

72 Right of spouse to maintenance .......................................................................................................... 68 o The court’s power under s 74 and s 75(2) factors ...................................................................................... 69

Spouse maintenance orders ...................................................................................................................... 72 80 General powers of court ........................................................................................................................ 72

Variation ............................................................................................................................................................... 73 82 Cessation of spousal maintenance orders ......................................................................................... 73 83 Modification of spousal maintenance orders ...................................................................................... 73

PROPERTY DISTRIBUTION ON THE BREAKDOWN OF MARRIAGE ............................................ 76 - (CH 12) ............................................................................................................................................................ 76

DEFINING MATRIMONIAL PROPERTY ............................................................................................................. 76 - UNDER THE FLA – COURT HAS POWER TO DECLARE AND ALTER THE INTERESTS OF PARTIES TO A MARRIAGE IN ‘PROPERTY’. THE ACT DEFINES THE TERM IN SECTION 4(1): .................................................... 76 DECLARATION OF PROPERTY INTERESTS ....................................................................................................... 76

PROPERTY DISTRIBUTION ON THE BREAKDOWN OF MARRIAGE: ADJUSTMENT ISSUES (CH 13) .............................................................................................................................................................. 77 PROPERTY UNDER THE FLA .................................................................................................................... 77

PROPERTY SETTLEMENT: THE PROCESS ......................................................................................................... 78 STEP 1: Identify and Value the Property and Resources ......................................................................... 78 Step 2: Assessing Contribution ................................................................................................................. 79 STEP 3 - Adjustment for ‘Future Needs’ .................................................................................................. 81 STEP 4 – orders must be “just and equitable” – s. 79(2) ........................................................................ 81

PROPERTY DISTRIBUTION ON THE BREAKDOWN OF MARRIAGE: ADDITIONAL ISSUES (CH 14) – SEMINAR 8 .................................................................................................................................... 88

Spousal Agreements .................................................................................................................................. 88 Consent orders ................................................................................................................................................... 88

FINANCIAL AGREEMENTS UNDER THE FLA (2000-PRESENT) ........................................................................ 88 Question 2 – What is a BFA? How they work? How to set aside ............................................................... 88


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90G requirements; .............................................................................................................................................. 89 Question 2 – BFA’s- When set aside? s. 90K ................................................................................................ 89 Question 3 – Pre-nuptial agreements ............................................................................................................. 89

SUPERANNUATION ......................................................................................................................................... 90 Question 4 – How is superannuation dealt with? .......................................................................................... 90

INJUNCTIONS, THIRD PARTIES AND PROPERTY .............................................................................................. 91 Injunction .................................................................................................................................................. 91 Question 9 – Injunctions against 3rd parties ............................................................................................ 92 Question 10 – action to set aside transaction to defeat claim .................................................................. 92

90AE Court may make an order under section 79 binding a third party ............................................. 93 90AF Court may make an order or injunction under section 114 binding a third party .................... 94

Division 4—Other matters .................................................................................................................... 95 90AG Orders and injunctions binding on trustees .................................................................................. 95 90AH Protection for a third party ............................................................................................................... 95 90AI Service of documents on a third party ............................................................................................. 95 90AJ Expenses of third party ..................................................................................................................... 95 90AK Acquisition of property ...................................................................................................................... 96 106B Transactions to defeat claims .......................................................................................................... 97

SETTING ASIDE PROPERTY ORDERS ............................................................................................................... 99 PROPERTY DISTRIBUTION ON THE BREAKDOWN OF A DE FACTO RELATIONSHIP (CH 15) – SEMINAR 9 ................................................................................................................................................. 100

Statutory scheme ..................................................................................................................................... 100 Question 1 – definitions under PRA ....................................................................................................... 100 Question 3 – What is de facto relationship under FLA? ........................................................................ 102

DE FACTO MAINTENANCE UNDER PART VIIIAB FLA ................................................................................. 104 Support of De Factor Partners (Ch 9) ................................................................................................... 105 • Statutory maintenance entitlements prior to the commencement of the Pt VIIAB in 2009 ........... 105 • Statutory maintenance entitlements after the commencement of the Pt VIIAB ............................ 105 - Section 90SI sets out circumstances where a maintenance order can be modified ...................... 107

90SI Modification of maintenance orders ............................................................................................... 107 - Child Bearing Expenses ................................................................................................................ 109 - SEE Pages 491-493 ....................................................................................................................... 109

FAMILIES CHILDREN AND WELFARE – FAMILY VIOLENCE ...................................................... 110 (CH 15,13, 8.23-8.33) – SEMINAR 10 .......................................................................................................... 110

FAMILY VIOLENCE ....................................................................................................................................... 110 Family Violence – Question 1: How is family violence taken into account in children’s matters? ....... 111

INJUNCTIONS ................................................................................................................................................ 112 PROTECTION ORDERS UNDER STATE AND TERRITORY LEGISLATION ............................................................ 113

INDIGENOUS AUSTRALIANS AND FAMILY LAW; ADOPTION; CHILD WELFARE PROCEEDINGS (CH 8, 4, 16 – EXTRACT) – SEMINAR 12 .................................................................. 116

INDIGENOUS AUSTRALIANS AND FAMILY LAW ........................................................................................... 116


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PART A – 2 Essay Questions (Pick from 4) = 10 marks

- On the principles

- No adoption/care proceedings

- No topics from essay topics

PART B – 2 problem questions = 30 marks

- One parenting order question

- One property question

TOPICS - Week 1: Introduction to Family Law

- Week 2: Marriage, Divorce and Nullity

- Week 3: Children and the Law - Week 4: Children and the Law - Week 5: Children and the Law - Week 6: Children and the Law - Week 7: Financial Matters: Part VIII FLA – Spouse maintenance and

property settlement for married couples

- Week 8: Financial Matters continued

- Week 9: Maintenance and Property Settlements and Non-Married Couples

- Week 10: Family Violence

- Week 12: Indigenous Australians and Family Law; Adoption; Child Welfare

Proceedings

- Week 13: Current Issues in Family Law


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Introduction to Family Law (Ch 1, 2, 3) – Seminar 1 Question 1: What is “family”? - No definition of family in the Family Law Act (FLA). - Y & M in chapters 1 & 2 suggest that certain sections (eg s. 43) and some decisions reflect that

certain types of family sit easier within legal framework. - Legal framework is changing – single parent families, greater recognition of same sex

relationships. Is it keeping up with social change? - “Family Law” - FLA does not deal with regulation of families as such but what happens on relationship

breakdown: o formal termination o parenting issues o financial issues.

Question 2 – centrality of marriage - Y & M pp. [1.1-1.5] outline centrality of marriage to family – why ? Financial and religious

reasons – need to preserve family wealth, marriage as a means of financial support. Traditional focus in law has been on marriage – married couples with children.

- Women traditionally subordinate [1.41]. Why? - See Paras 1.42 – 1.52 of text – de-facto/same sex relationships. Law has slowly come to

recognise and build legal framework for other relationships. Marriage arguably less important. Marriage and other relationships - See traditional common law definition of marriage [1.42] suggests marriage has special status –

“the voluntary union for life of one man and one woman to the exclusion of others” . - Y&M suggest this is an idealised view given easy access to divorce. See by contrast the view

expressed in Seidler v Schallhofer at [1.43]. - Family and relationships - Property (Relationships) Act 1984 NSW – financial/property settlement rights for heterosexual

and same sex de facto couples (incorporated in 1999) [see 1.47]. Why could these property rights not be covered under the FLA?

- All defacto property settlements where termination after 1 March 2009, now under new - Part VIIIAB FLA...how was this possible? [1.49]. Family and relationships - No recognition of same-sex marriage in Australia (para 1.52 – 1.54). Why is this so? - Same sex marriages recognised in other countries (eg Canada, Netherlands, Belgium) and

some Australian states have civil partnership legislation. What were some of the issues re the ACT legislation?

Development of Family Law in Australia - Much of what we call “family law” really developed from “marriage breakdown” law in England. - Marriage an economic imperative both in terms of social support and inheritance – only those

born of marriage entitled to inherit. - Modern divorce didn’t really emerge until 1857 in England – Divorce and Matrimonial Causes

Act. Adopted by Australian colonies (each colony own legal system). - Set grounds for divorce – fault based – adultery etc. Easier for H. than W. Women usually

disadvantaged. Development of Family Law in Australia


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- Federation 1901 – Constitution. Fed Plt given powers under s. 51 including: 51 xxi marriage power 51 xxii “divorce & matrimonial causes”(see[2.3]). - But Fed parliament left states as they were pre 1901 and did not enact any laws until 1959 –

Matrimonial Causes Act 1959 (Cth) (MCA) and then the Marriage Act 1961 (Cth). - Family Law Act 1975 (Cth) replaced MCA in 1976. Question 3 Marital Breakdown prior to FLA - Matrimonial Causes Act 1959 (Cth) applied (see [2.5-2,7]). - MCA provided for 14 separate grounds of divorce including adultery, desertion, cruelty,

insanity…and one “no fault ground” - “irretrievable breakdown” evidenced by 5 years separation.

- By 1970s, unhappiness with “fault” system – MCA not seen as meeting social needs of the time.

- Family Law Act 1975 – introduced “no fault” divorce. Did away with the MCA’s 14 grounds and has one single ground – “Irretrievable breakdown” evidenced by 12 months separation.

Question 4 Significance of s. 43 FLA - Section 43 FLA sets out the principles that the court is meant to have regard to in deciding

cases. - Text suggests that the principles seem weighted toward marriage and traditional view of family

and limits scope of operation of FLA. Consider this as we look later in course at how court has dealt with non-traditional families.

Principles s. 43 FLA 43 Principles to be applied by courts The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure safety from family violence; and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children. Family Law Act 1975 and Family Court of Australia - FLA came into force 1976. Major reform of resolution of disputes arising from marriage. - “No fault”, focus on principles of “welfare”. - Applies to ALL states (NB WA has its own FC) - Created Family Court. Conceived as “people’s court” Is it so today? FLA and FCA - Family Law matters dealt with in Family Court, Federal Magistrates Court and also Local Court. - Who hears matters ? FCA - Deputy Registrars, Registrars, Judicial Registrars, Judges (powers

determined by FLA & Rules). - FMC – Federal magistrates - Local Court - Magistrates - Judge of FCA same status as Fed Ct. or State Sup. Ct. Judge. FCA is “superior court of record”


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- Appeal from FCA to Full Court FCA then High Court of Australia (HCA) with special leave or certificate from Full Court (see 2.23-2.32]).

- Family law highly discretionary – can appeal FCA decision (usually single judge) to Full Ct FCA – must be question of law or important public policy (for HCA).

- Jurisdiction limited by Cth parliament’s power to make law in this area under Constitution. FLA and the Federal Magistrate’s Court and Local Court - FMC – introduced in family law matters to make simpler/quicker. - Which court…FCA or FMC? Determinant is complexity/time. Appeal to Full Ct FCA. - All divorces currently through FMC. - Current issue – plan to phase FMC out of family law matters – full circle. - Local Court – hears FLA matters subject to jurisdictional limits – no final child orders unless

consent, limit re value of property. Tactically, good for interim orders – costs, time. The FLA and dispute resolution - Strong emphasis on alternate dispute resolution in FLA (ie that parties resolve the matter

without having to go to court, or if proceedings commenced, before hearing). - Why? Costs, emotional strain, imposed solution v own solution. - Lawyer obligation to advise client re ADR, brochures. - Can’t commence parenting matter until certificate from family dispute resolution practitioner

obtained (s. 60I FLA) subject to exceptions. - Property matter - “Pre-action procedures” – must put offer to other side, receive response

before commencing. - Each step along way, parties urged to resolve (eg Conciliation conference). - Difficulty of application of adversarial framework of our legal system to family law – what issues

arise? - Attempts to make FLA less adversarial (eg LAT in child matters – Part VII Div 12A FLA) Question 5 - Conciliation – third party helps parties resolve – has input re law and options. - Mediation – 3rd party has little input. Gets parties to explore & present options but doesn’t

comment on merits or law. - Arbitration – arbitrator hears each side and makes decision – imposed decision like court but

some party input re venue, arbitrator. - So why do you think alternate dispute resolution or “family dispute resolution” is so important in

family law? - Note too recent developments re Collaborative Law – what is it? [See 2.60] FLA and FCA :Jurisdiction - s.31 FLA - FCA has jurisdiction re matters under FLA and jurisdiction conferred on it by other

Acts (eg Child Support, ex-nuptial children). - Act was predominantly concerned with disputes between those who are married or disputes

arising from marriage. - Jurisdiction re children’s matters s.69E (note child does not have to be an Australian citizen). Family Law Act 1975 and Family Court of Australia - divorce: s.39(3) must be satisfied. No need for marriage in Australia BUT one party must be

citizen, domiciled in Aust. or ordinarily resident. No jurisd. if married in Aust. but neither party citizen, domiciled or ordinarily resident.

- other matters (eg property) s.39(4) – no need for any property in Aust. If other requirements met.

- Initial jurisdictional challenges to FLA and FCA – what is a “matrimonial cause” ? Are we stuck

with the same meaning as in 1901(see [3.1-3.3]?


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- Cases such as Russell v Russell and Farrelly v Farrelly (see [3.30-3.43]) challenged FLA and led to amendments. Need for a link to the marital relationship, link to divorce “principal relief” for property. Look at Matrimonial cause today in s. 4 – further changes.

Question 6 – Constitutional Power to enact FLA and FCA jurisdiction - Power to enact FLA from Constitution. - s51 xxi – marriage power - s.51 xxii - divorce and matrimonial causes; and in relation thereto parental rights and the

custody and guardianship of infants. - s.51 xxxvii – referral by states:

s.51 xxxviii – matters incidental to any power: eg. child support Powers not entirely clear and had limitations (see Chapter 3).

- 6 a) Initially, FLA could not cover ex-nuptial kids. All States (except WA) referred powers re ex-nuptial children to Cth between 1986 and 1999. Non-married parents can now access FLA re kids.

- 6 b) No coverage for property if not married because no connection to matrimonial cause. All states (except WA and SA) have since referred powers – new Part VIIIAB now (from 1/3/09) deals with de-facto property in same way as married (subject to pre-requisites).

Question 7 – Cross Vesting and its demise - Under FLA as enacted, despite referral of ex-nuptial child matters by states, a non-married

person could not bring property dispute with their child dispute and married couple could not bring “state” action (eg damages for assault). This led to development in 1987 of the cross vesting scheme (CVS).

- CVS allowed Fed court (eg FCA) to hear related state matter at same time as a Federal matter (eg de-facto property at same time as parenting dispute) and vice-versa.

- (see [3.87 – 3.101]) In Re Wakim: Ex parte McNally (1999), HCA found that the part of the CVS allowing Fed courts to hear state matters was outside of the constitution and invalid. No longer could related state matter be brought in FCA eg No de-facto property disputes or common law assault damages cases alongside an FCA dispute.

- Since Re Wakim issues of associated (s.33 FLA) and accrued jurisdiction (see [3.78 – 3.80] became important (Warby (2001)) – “single justiciable issue” to bring non Federal matters before FCA.

Question 8 – Parts of the FLA - PartVI Divorce and Nullity - Part VII Children - Part VIII Property and Spousal Maintenance - Part VIIIB Superannuation - Family Dispute Resolution – mostly under Part II but also requirements re parenting matters in

Part VII Div 1 Subdivision E. So…What is “family law”? - Relationship breakdown - FLA and state de-facto law where relevant, child support law.

Associated case law. - Separate yet intertwined state areas of Adoption, domestic violence, welfare (“care

proceedings”). - Range of issues fall under broad umbrella of “family law”, but not all “family disputes” (eg Family

Provisions Act claims) are “family law” matters. - Not just the reported decisions – only 5% of matters go to final hearing. - Often difficult, sometimes unpopular area of law for lawyers: emotion, “best interests”. - Special emphasis on dispute resolution. - Interacts with many other areas (eg tax, super, company law)


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- Area of ONGOING CHANGE - see paras 2.39 – 2.49) – 1996 and 2006 changes emphasis on “shared parenting”, pre action dispute resolution, greater enforcement, less adversarial process. 2009 new part VIIIAB.

What do family lawyers do? - Advise/represent - in court and/or in negotiation, mediation, conciliation - Many myths, misconceptions, criticisms of Family Ct. and lawyers:

o wife always gets the house/kids o men don’t stand a chance o lawyers promote fight (“everything was OK until he/she saw their lawyer”) o lawyers “making money out of misery

- Many misconceptions arise from failure to understand factors court and lawyers required to have regard to under law.

- Lawyer the client’s first contact – need to explain concepts and court’s approach in accordance with law – not always easy

- What do family lawyers do? - Family lawyer’s skills. Different to other areas? Not really but context different. - Often client emotional, difficult to take instructions from. Need to focus client (and self). Data

collection, use of chronology, instruction sheets esp financial information. - Listening, questioning, giving advice – law, cost, practical considerations, obligations re FDR

and FLA/Rules requirements.


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Marriage, Divorce and Nullity (Ch 4, 5) – Seminar 2 Marriage - Monahan and Young at [4.1] marriage as the “basis of the legal family”. - Marriage has moved from something utilised for economic purposes to modern conception of a

union based on affection with purpose of raising kids, and mutual economic and emotional support.

- 1986 extract [4.2] – spoke of changes …even further change 20 years on. - Marriage rate declining, marrying later, more de-factos. Given this and greater legal recognition

of non-married couples. Should marriage still have any “special” status? [4.3] - Marriage still popular. Remarriage creating new issues. - So what is marriage under Australian law? - Cth has power to make laws re marriage under s.51xxi Constitution – marriage power - What is marriage? Question 1 – What is marriage? - Until 2004 only Common Law definition: - “ The voluntary union for life of one man and one woman to the exclusion of the other” - From Hyde and Woodmansee (1886) LR 1 P&D 130 - Marriage Act 1961 (Cth) had no definition until 2004 . Introduced by Liberal govt. - adopted

common law definition - Section 5(1) of MA (as amended by Marriage Amendment Act 2004) now says: "marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. - Same sex marriages not recognised. Question 2 – Ruddock’s comments at [4.2] - “Marriage is a central and fundamental institution…” - The “vast majority of Australians would agree [with the Hyde definition]…” - What do you think? Marriage – the requirements Monogomy - Note “one man and one woman to the exclusion of all others”– marriage is monogomous [ 4.5] - Polygamous mariage not valid – Aboriginal customary marriage not valid [4.5]. What are

implications? - Polygamous marriages valid overseas are recognised here for FLA purposes (eg child disputes,

financial disputes) – s. 6 FLA. – see [4.6 - 4.8]. Heterosexuals only - SSM was not recognized prior to amendment in any event (and celebrants words at s. 46 MA

mirrored common law) but there was no statutory clear definition and there was a growing push for recognition from some groups.

- Note comments of McHugh in Re Wakim (1999) (text at [4.10]) – meaning of marriage in 1901 not same as today – could in future be “a voluntary union for life between TWO PEOPLE…”

Same sex marriage - S. 88EA MA (inserted 2004) foreign same sex marriages not recognised in Australia. Why do

you think this was done? “s. 88EA Certain unions are not marriages


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A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia” Same-sex Marriage - Note Re Kevin (2003): a post-operative transsexual should be regarded as a member of his or

her reassigned sex. (see [4.25] ). - Note steps toward “marriage-like” civil partnership in some states and ACT discussed in Ch 1

last week. - FLA now recognises same sex defacto property disputes on very similar terms to married

people. Question 3 Reasons for and against recognition of same sex and Aboriginal customary marriages - Same sex – any reason why they should not be allowed to marry? Any legal disadvantages

now ? Emotional disadvantages? Discrimination? What does community want? - Aboriginal customary marriage - disadvantage re property cured by Part VIIIAB FLA? Is it really

something “white fella” law should be involved in? What does community want? - ALRC recommendations in 1986 re recognition of polygamous Aboriginal customary marriage

for FLA purposes not yet adopted. - What legal/constitutional barriers re same-sex and/or Aboriginal customary marriage

recognition? Marriage requirements “Voluntary union for life” - “Voluntary union” [4.11] – must be consent or it is void – S.23B(1) MA “consent” of parties

necessary. Consent can be invalid if fraud, duress, mistake, mental incapacity - will be discussed later in context of nullity.

- “for life” (text [4.11] – enough that parties intended it. No issue at law – a “pious hope”? - Remember Seidler v Schallnoffer (1982) “…an arrangement terminable by either party on one

year’s separation, really one year’s notice.” Marriage - What is position re promise to marry? Is it actionable? [4.12 – 4.15] - What about recovering gifts? - Section 111A MA (see [4.15]) abolishes action in damages for breach of promise but leaves

open right to recover gifts made in contemplation of marriage. Recognition of Overseas Marriages - Ss 88C, 88D. 88E MA: - subject to exceptions, marriage recognised O/S as valid in is valid in Australia (exceptions

include – one party already party to marriage recognised as valid in Australia, one party domiciled in Australia and either not marriageable age, prohibited relationship) (text [4.69 – 4.74])

Marriage – Requirements & Formalities Formalities of Marriage are set out in MA - “marriageable age” – ss.11,12, 13, 14, 15 and 16 of MA – set out age and exception with

order/consent (and text [4.29-4.39] and [5.52 – 5.54]). - 18 years but court can give Ok where one party under 18 but at least 16 if “exceptional and

unusual circumstances” warrant it. Pregnancy per se not enough. - MA ss25-59 inc “authorised celebrant”, witness requirements, Notice of intention to marriage

(see text [4.54-4.57]). See the seven requirements [4.57].


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Marriage - Formalities - Note if authorised celebrant was NOT authorised, marriage not invalid if parties believed he/she

was authorised - “prohibited relationships” s23B(1)(b) siblings/half siblings (blood), ancestors, descendants

(applies to adoptions too). Question 4 What is polygamy/bigamy? - Polygamy – being married to 2 or more persons. FLA s.6 – Polygamous marriages recognised

in Aust. for Family Law purposes if valid in country where celebrated. Not offence if valid in country of marriage.

- Bigamy – offence to marry someone else whilst already married - s. 94 of MA - OR to marry someone you know is already married – limited defences including belief spouse was dead (s. 94(2) MA (see [4.40 & 5.18] but the defence doesn’t validate the marriage.

Question 5 – other relationships recognised at law? - All states and territories have own defacto legislation that includes recognition of same sex

couples. Parenting and property rights now under FLA for “defacto” relationships terminated after 1/3/09 (must meet requirements and definition)

- Some states also recognise “close personal relationships” – some property rights (see Property Relationships Act in NSW).

- Civil partnerships [see 4.96]. What are implications? Question 6 – difference between divorce and nullity? - Nullity is declaration that marriage void from the start – never valid. Divorce is the formal

termination of an otherwise valid marriage. Nullity - S.51 of FLA. Nullity declared if marriage found to be VOID. Rare in practice. Why? - When will marriage be void? S. 23B (1) of MA sets out grounds (see text at [5.13]) – already

married, prohibited rel/ship, non-compliance s.48 MA formal requirements, no real consent, party not marriageable age).

- What is meant by “not a real consent”? - 23B(1)(d) - Duress or fraud - Mistake as to identity or nature of ceremony - Party mentally incapable of understanding. Question 7 – nullity and duress/fraud - Duress/fraud (see text [5.25-5.39]): - Cooper v Crane (1981) – need to be “so perturbed by terror that her mind was unhinged and

she did not know what she was doing”. “powers of volition paralysed”. Scott v Selbright (1886) fitted those facts, but threat by groom to blow his own brains out (in Cooper v Crane) not enough.

- S and S (1980) – arranged marriage – mental pressure enough – test relaxed. - Question 7 – duress and fraud - Teves and Compomayor (1995) – confirmed S and S – does not have to be physical threat –

“sufficent oppression” [5.30]. Time lapse crucial. - Fraud – deception as to identity or nature of ceremony. What happened in Deniz(1977) [5.32]

and subsequent cases? (see text at [5.34] ff). Question 7 – nullity and mistake


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- Mistake: What sort of mistake will make marriage void? (cases at [5.41]ff) – identity, nature of ceremony.

- What was the “mistake” in C and C? - Mental incapacity: see [5.45 – 5.51]. - Test in In the Estate of Park; Park v Park (1954) – “was [the person married] capable of

understanding the nature of the contract he was entering or was his mental condition such that he was incapable of understanding it?” [5.46]. Possibly includes intoxication.

Divorce - Jurisdiction S.39(1) - either party must be an Aust citizen or domiciled in Aust or ordinarily resident (lived in Aust last

12 months). If none of these apply can’t divorced in Aust. even if married in Aust. - S.44 FLA – proceedings by way of application. Question 8: Grounds and evidence - Grounds – s.48 (1) “irretrievable breakdown”. Evidenced by parties living separately and apart

for a continuous period of not less than 12 months immediately preceding the date of filing the application. (s.48(2)). (see [5.60]).

- NO FAULT. Why? Divorce - NB – 12 months starts from day AFTER separation. Note Bozinovic and Bozinovic (text at

[5.72]. - No likelihood of resumption of cohabitation (s48(3)). Question 9 – separation under one roof – the test. - What is separation? S.49. Can be under one roof (text [5.73 – 5.83]). - Falk (1977): party may have reasons for staying under one roof, Tye (No.1) (1976), Lane

(1976). Importance of difference between “now” and “then” – “before and after” approach. Todd (No.2), Pavey [5.79].

- “breakdown of the marital relationship” Divorce – separation - Need for INTENTION to separate as well as physical separation. Intention that marriage is over

and act on it. Lane (1976) Clarke (1986). - Every marriage is different. Are there essential elements? (Pavey (1976)) - Merely living together for sake of childcare arrangements might not prevent court from finding

separation: Potter (1976). See also Hunt (1977) [5.83] where parties couldn’t afford to live separately.

- Sexual rel’ship or domestic duties – but not conclusive as to whether separated or not. See Carretti (1977) and Hodges (1977) (text [5.83])

- S.48(3) – reasonable likelihood of resumption of cohabitation – must be bilateral intention to resume: In the marriage of Bates and Sawyer (No.2) (1977). Onus is on party who asserts: Todd (No.2)(1976).

- Meeting on weekends & having sex not resumption of cohab: Feltus (1977) [5.84]. Divorce - Onus on parties where sep. under one roof or resumption of cohab. to provide convincing

evidence of separation to court. - Resumption of cohabitation s. 50 – One period of not more than 3 months. - Only ONE period allowed or 12 months starts again, if various periods, the “one” is the “first”:

Keyssner (1976).


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Divorce - Other requirements

o S44(1B) certificate where marriage less than 2 years. Leave to waive (44(1C)) (note Kelada (1984) (text [5.89])

o S.55A(1)(b)(i) FLA declaration where kids under 18. Decree nisi wont be made absolute until court satisfied satisfactory arrangements made re kids (Maunder (1999) see [5.99]).

Divorce Legal consequences of divorce - Time limits re property/maintenance . 12 months from DA unless leave (s.44(3)). - What circumstances might warrant leave ? - s.44(4) – hardship, inability to maintain w/o pension/benefit. - Impact on wills. Question 10 - S. 88E MA – marriage valid in Aus if valid in Mexico. Jill has jurisdictional grounding to apply

(Jack is Aus citizen) BUT, not yet separated 12 months. Have to wait for 12 month sep. Question 11 - Need 12 month sep. Sep under one roof OK (s. 49) but will need to satisfy court – what test

applies? - Period of recohab wont mean they have start again if not more than 3 mths (s. 50B FLA) but

can’t count in calculating the 12 months. What date will 12 months be up? - Would normally be 3 June 2010 – 12 months plus one day - (if sep under one roof accepted)

BUT must add the 2 months recohab…first date 3 August 2010. - Note too issue re 44(1B) re 2 years (44(1C) waiver possible) and, when she does apply court

must be satisfied re s. 55A before granting.


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CHILDREN AND PARENTS

PARENTAGE (CH 6) – Seminar 3

Children – parentage - Historically, a distinction between rights/responsibilities re legitimate and illegitimate children. - 1970’s distinction removed. All children equal legal status in Australia. - Presumptions of parentage.

o The presumption attributed paternity of a married women’s child to her husband. o The presumption could be rebutted where the husband and wife were separated at

the time of conception

Presumptions of parentage under the FLA - FLA Part VII, Division 12, subdivision D - 69(P)(1) – presumption arising from marriage: child born to a woman during marriage is child of

the woman and husband (also applies if born within 44 weeks of death of husband, divorce, annulment or period of cohabitation after separation).

- 69Q – presumption arising from cohab: if woman gives birth between 20 and 44 weeks from last cohabitation with a man, that man is presumed to be father.

- 69R – presumption of parentage by entry on register as parent (doesn’t matter who entered). - 69S – presumption of parentage arising from finding by court. - 69T – presumption of paternity by acknowledgment by man (ie executed instrument saying he

is father). - 69P, 60Q, 69R, 69T rebuttable by proof on balance of probabilities. - The role of the presumptions is to assist the courts in determining questions of parentage in

circumstances where there is no direct evidence of parentage before the court - Context of parentage order/what avenues available? - Why might someone need to seek such an order? - When might someone want to contest parentage? - What happens if a party refuses/what avenues ? See following slides.

Children – Proving Parentage - FLA Part VII, Division 12 subdivision E: Evidence of Parentage. - 69V – Court can make order requiring person to give evidence and/or orders under 69W for

parentage testing. - 69VA – power to make declarations as to parentage. - 69X – orders associated with testing order – eg who to attend, when etc - Testing regulated. Reports as evidence - Testing usually by swab – DNA analysis. - Carried out by licensed lab. - Gives % possibility report. No need for mother to adduce evidence excluding possibility that

anyone else is the father. - If refusal to comply – court may draw inference (s. 69(Y)(2)). See also [6.11] G v H – depends

on the circumstances, no automatic inference that person is parent.


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- The Family Court will not automatically order for parentage testing that the applicant seeks – the parentage of the child must be a question at issue in proceedings: Marriage of Diggins

- In Marriage of F and R it was held that there must be a honest, bona fide and reasonable belief that there is doubt as to the child’s paternity before a parentage order will be made.

Children – Artificial Conception - IVF – in vitro fertilisation: conception takes place outside womb, - AI - Artificial insemination: sperm introduced by artificial means. - AIH – AI by husband. - AID – AI by donor. - AIH no legal issues, H is father. - Common law problems with both IVF and AI – see [6.17]. - How are parentage issues re IVF and AI dealt with under law? - S. 60H(1) FLA – child born to a woman as a result of an artificial conception procedure carried

out with consent of husband or defacto or “other intended parent” is the child of the woman and her husband or defacto or “other intended parent”

- 60H amended - “other intended parent” added 1 March 2009…what is significance? - Has been said that a male sperm donor is not a parent for FLA purposes (Guest J in Re Patrick

(2002)) but in Tobin v Tobin (1999) full Court took different view. This view was preferred in Re Mark (2004) and Guest’s view in Re Patrick rejected.

- Similar legislation in all states/territories makes husband or defacto husband father where AID and, where IVF, woman who carries child, not owner of egg, is recognised as the mother.

- In WA, NT and ACT recognise same sex de facto partner who consents to artificial conception procedure as “parent” – 60H FLA now does that too. Prior to amended 60H, no recognition (see [6.22]).

- Note comment re “frozen embryo” cases at [6.23] and impact re inheritance. - Access to assisted reproduction – discrimination issues – [6.29-6.31]. Assisted reproduction

treatment originally confined to heterosexual couples. Some states still technically do this. - McBain (2000) case, High Court said this was unlawful discrimination [6.29]. - Note “infertility” requirement – should “social” infertility be accepted (ie wont become pregnant

because of sexual preference). - [6.32-33] Access to donor information – anonymity of donor v right to know.

Surrogacy - Surrogacy [6.34] – one woman carrying another’s embryo – carrier/birth mother, NOT donor of

sperm/egg seen as parent – would have to adopt. - State issue - No uniform approach across states – ‘altruistic’ surrogacy illegal in Vic but no laws

one way or other in NSW. - Push to create uniform laws - Commercial surrogacy will be illegal across the states, but

regulated altruistic surrogacy OK. . - New s. 60HB FLA recognises owner of egg/sperm as parent if recognised under state law but

no state laws yet.


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Children and Parents: The Legislative Framework (CH 7) – Seminar 3

- Relevant legislation: Family Law Act 1975 (Cth) - PART VII of the Act

The United Nations on the Rights of the Child (p 250 Text) - Australia has ratified (17 Dec 1990) the United Nations Convention on the Rights of the

Child - Therefore have committed to examining existing laws/policies at state/federal level to

comply with the Convention’s articles - Reporting requirements - Significant in shaping the first wave of reforms in 1996 - United Nations Convention on the Rights of the Child (UNCROC) [7.3 – 7.6]. - Australia signed UNCROC. Does not make UNCROC domestic law but indicates

commitment to enact law to reflect UNCROC. Australia has complied in some areas. - Significantly reshaped FLA – in particular Family Law Reform Act 1995 changes to part VII

FLA. - B and B: Family Law Reform Act (1997) indicated UNCROC significant to interpretation.

[7.5] - In B and B v MIMIA (2004) Full Court saw obligation of Family Court in light of UNCROC

meant that FCA did have power to make orders releasing children from detention. High Court disagreed.

- UNCROC important to interpretation of part VII FLA. - UNCROC and the 1996 Reforms to FLA - Substantial changes via Family Law Reform Act 1995. Largely reflected 1989 UNCROC

- Key provisions of UNCROC included: - Art 3 (1) “best interests” - Art 7 right to know/cared for by both parents - Art 9 (3) right to maintain relations/contact

Proceedings in respect of children under the Family Law Act 1975 o The Law Before the Family Law Reform Act 1995

- Since the FLA cam into effect, court’s have had a wide discretion to make orders to resolve parenting disputes. Anyone concerned with the welfare of the child could apply for a parenting order.

o 3 types of orders: guardianship/custody/access orders - If parents were in dispute – court look to the child’s ‘welfare’ as the paramount

consideration. – checklist in s 68F(2)

o Background to the Family Law Reform Act 1995 Reforms - Family Law Council Report – Access – Some options for parents - Concerns that parents were looking at themselves as winners and losers in the battle - Prevailing belief that parents had a prima facie right to have access to the child


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- Therefore, on many occasion parent which was not granted custody was almost guaranteed access even if not in child’s best interest

- Second report followed – recognized the importance of children maintaining contact with both parents

o Key changes made by the Family Law Reform Act 1995

- The Family Law Reform Act 1995 (Cth) effected the most substantial reforms to the FLA since the inception of the original Act

- Part VII was repealed and replaced with a new Part VII - ‘parental responsibility’ replaced ‘guardianship/custody/access’ concepts - New focus on ‘parenting plans’ - ‘best interests’ replaced ‘welfare’ - Parenting orders could be made that covered residence - Section 60B was inserted (complete new section) - Children – UNCROC 1989 and 1996 Reforms to FLA - B and B: Family Law Reform Act (1997) - test case for interpretation of FLA as amended by

FL Reform Act. - Affirmed UNCRC not wholly incorporated but relevant/useful for interpretation. Also held

amendments not just “window dressing”. - Part VII: 1996 Reform - Key changes inc. changes to “objects and principles” provisions (60B(1) and 60(B)(2) and

new terminology. - Emphasis on “shared parenting”. - “best interests” replaced “welfare” - 65E FLA (now s. 60CA) : “ In deciding whether to make a particular order in relation to a

child, a court must regard the best interests of the child as the paramount consideration”. - “residence” replaced “custody” - “contact” replaced “access” - “parental responsibility”/”specific issues” replaced “guardianship” - New s. 60B –objects and principles [7.14]. - Emphasis on ‘Shared Parental Responsibility’. - BUT shared parenting NOT 50/50 time. - Recognition of family violence as a relevant factor in FLA for first time. - Recognition of Aboriginal culture for the first time in FLA as relevant to parenting matters. - Change in terminology to assist in breaking down the winner/loser dichotomy. Proprietary

connotations of “custody”. In keeping with principles of UNC. Re-focus on rights of CHILD not PARENT.

- 1996 reforms – interpretation - B and B (1997) court said the “right” of child under 60B not legally enforceable and must be

subject to the “best interests” principle.

o Background to the Family Law Amendment (Shared Parental Responsibility) Act 2006 Reforms - 2006 Reform

Family Law Amendment (Shared Parental Responsibility) Act 2006 2003 parliamentary enquiry into “shared custody” – lobbying from interest groups unhappy that 1996 reforms not far enough – wanted presumption of equal time with both parents.

- Released report in 2005 “every Picture Tells A Story” - Found that shouldn’t be automatic 50/50 time but recommended major changes to Part VII

and to child support scheme.

o Key Changes made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 - 2006 changes to Part VII FLA


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- Key features: - Terminology change again – “live with” and “spend time with” instead of “residence” and

“contact” - Automatic presumption of “equal shared parental responsibility” – s. 61DA – subject to

exceptions (violence, abuse) - If presumption applies, court must consider equal time or ‘substantial and significant time’

,subject to ‘best interests’– 65DAA.

- 2006 changes – key features - “best interests of the child” still the ‘paramount consideration’ – 60CA. - 60B(1) – objects and 60(2) – principles amended. Objects in particular significantly

expanded – See [7.21]. - Need to ensure child has benefit of “meaningful involvement” of both parents (s.60B(1)(a))

o S. 60B(1) (b) – protection from harm. o How determine “best interests”? o Amended so that Part VII aims to ensure the best interests of a child are met by

having maximum possible involvement with both parents, protecting children from violence and so on.

- Court looks at ‘primary considerations’ at 60CC(2) – they reflect 60B(1)(a) and (b) – ‘meaningful relationship with both parents’ and ‘protection from harm’ – how achieve this balance?

- Must also look at 60CC(3) – additional considerations – a “checklist” of factors like old s. 68F(2) – see 60CC(2) and (3) set out on pages 281-282.

- Compulsory Family Dispute Resolution (FDR) – s. 60I – can’t go to court unless certificate from FDR practitioner showing attempt at FDR – exceptions re urgency, violence, abuse.

- Also new ‘Less Adversarial Trial’ (LAT) procedure for child matters under Part VII Div 12A – rules of evidence not applicable, judge largely determines relevant issues and evidence. Faster time frame.

- A new 60B (3) also added re ATSI children and s. 60CC(3)(h) recognition of right of ATSI children to know and enjoy their culture - Substantial adoption of 1997 “Bringing Them Home Report” recommendations (will look at in detail week 12).

- Emphasis on shared parenting, a ‘meaningful relationship’ with both parents as the first of the ‘primary considerations’, the automatic ESPR, consideration of “equal time” or substantial and significant time…have all lead some people to criticise the reforms as “pro contact”. Why? And why is this seen as a negative thing by some?

Parental Responsibility - 61B Meaning of parental responsibility

o In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

- 61C Each parent has parental responsibility (subject to court orders) o Each of the parents of a child who is not 18 has parental responsibility for the child.

- Under s. 61C both parents have PR but parent with care at particular time has resp re day to day matters – no need to consult.

- See page 264 re discussion on how parental responsibility to be exercised - Y & M suggest now with 61DA (ESPR), less clear what/how much consultation must go on

re long term matters [7.31] - Parental responsibility ends when a child turns 18 - see page 268 re mature minors


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Parenting Agreements

- Under Pat VII of the Act parents are encouraged to reach agreement with regard to parenting arrangements (s 60B(2)(d)). Reinforced in section 63B

- 63B Parents encouraged to reach agreement The parents of a child are encouraged: (a) to agree about matters concerning the child; and (b) to take responsibility for their parenting arrangements and for resolving parental conflict; and (c) to use the legal system as a last resort rather than a first resort; and (d) to minimise the possibility of present and future conflict by using or reaching an agreement; and (e) in reaching their agreement, to regard the best interests of the child as the paramount consideration. Note: Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.

- To deal with child support – the document must be a combine parenting plan and child

support agreement: ss 63C and 63CAA - Parenting plans may be later revoked or varied by written agreement: s 63D

o Institution of proceedings and procedure

- Section 69C outlines who may institute proceedings 69C Who may institute proceedings

(1) Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.

(2) Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:

(a) either or both of the child’s parents; or (b) the child; or (c) a grandparent of the child; or (d) any other person concerned with the care, welfare or

development of the child. - Required jurisdictional connection

69E Child or parent to be present in Australia etc. (1) Proceedings may be instituted under this Act in relation to a child

only if: (a) the child is present in Australia on the relevant day (as

defined in subsection (2)); or (b) the child is an Australian citizen, or is ordinarily resident in

Australia, on the relevant day; or (c) a parent of the child is an Australian citizen, is ordinarily

resident in Australia, or is present in Australia, on the relevant day; or

(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or


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(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

(2) In this section: relevant day, in relation to proceedings, means: (a) if the application instituting the proceedings is filed in a

court—the day on which the application is filed; or (b) in any other case—the day on which the application

instituting the proceedings is made.

Parenting Orders

- A parenting order = an order that deals with any aspect of parental responsibility for a child - Div 5 of Pt VII FLA - Section 64B outlines matters that can be covered by parenting orders

64B Meaning of parenting order and related terms (1) A parenting order is:

(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or (b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

(2) A parenting order may deal with one or more of the following: (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; (e) the communication a child is to have with another person or other persons; (f) maintenance of a child; (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i) a child to whom the order relates; or (ii) the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order; (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

- Section 64C: may be made in favour of parent or “some other person”. Section 65C Who may apply for a parenting order A parenting order in relation to a child may be applied for by:

(a) either or both of the child’s parents; or (b) the child; or (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child.


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- Section 65D: Court can make such parenting orders “as it thinks proper”

65D Court’s power to make parenting order

(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.


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o Exercise of the court’s jurisdiction: the best interests of the child as the paramount

consideration - Under section 60CA the court must consider the best interests of the child as the

paramount consideration in making a parenting order - Section 4 defines interest as matters relating to the care, welfare or development of the

child. Broad concept. - When court is considering who will have a parenting responsibility in respect of major long

term decisions it is now presumed to be the case that the child’s best interests will be served by this being shared equally among the parents: section 61DA

- Section 60CC sets out relevant factors that a court must take into account when determining what is in the child’s best interests

- Primary considerations are in s 60CC(2) and additional in s 60CC(3) 60CC How a court determines what is in a child’s best interests Determining child’s best interests (1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Additional considerations (3) Additional considerations are: (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; (b) the nature of the relationship of the child with: (i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; (f) the capacity of: (i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; (h) if the child is an Aboriginal child or a Torres Strait Islander child:


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(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; (j) any family violence involving the child or a member of the child’s family; (k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person; (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant.


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Legislation Extracts – ss 60B, 60CA, 60CC, 61DA, 65DAA

Part VII—Children

60B Objects of Part and principles underlying it

(1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a

meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture

with other people who share that culture).

(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and

developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture.

Subdivision BA—Best interests of the child

60CA Child’s best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.


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60CB Proceedings to which Subdivision applies

(1) This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. Note: Division 10 also allows a court to make an order for a child’s interests to be

independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.

(2) This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies.

60CC How a court determines what is in a child’s best interests

Determining child’s best interests

(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s

parents; and (b) the need to protect the child from physical or psychological harm from being

subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects

of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3) Additional considerations are: (a) any views expressed by the child and any factors (such as the child’s maturity or

level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child); (c) the willingness and ability of each of the child’s parents to facilitate, and

encourage, a close and continuing relationship between the child and the other parent;

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative

of the child), with whom he or she has been living; (e) the practical difficulty and expense of a child spending time with and

communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child);


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to provide for the needs of the child, including emotional and intellectual needs; (g) the maturity, sex, lifestyle and background (including lifestyle, culture and

traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture

(including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family; (k) any family violence order that applies to the child or a member of the child’s

family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person; (l) whether it would be preferable to make the order that would be least likely to lead

to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant.

(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to

the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to

the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Consent orders

(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:


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(a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and

developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture.

61DA Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Note: The presumption provided for in this subsection is a presumption that relates

solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.


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Substantial and significant time

(2) If: (a) a parenting order provides (or is to provide) that a child’s parents are to have

equal shared parental responsibility for the child; and (b) the court does not make an order (or include a provision in the order) for the child

to spend equal time with each of the parents; and the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and (b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in

occasions and events that are of special significance to the parent.

(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a) how far apart the parents live from each other; and (b) the parents’ current and future capacity to implement an arrangement for the

child spending equal time, or substantial and significant time, with each of the parents; and

(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant.


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Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));

(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.


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Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility (CH8) – Seminar 4

- The statutory framework in which court must decide where “best interests of the child”

(60CA) lie. - Goode v Goode (2006) sets out the process court must follow:

- 61DA presumption (yes or no?) - 65DAA – consideration of equal or substantial & significant time (subject to best

interests) - 60 CC (2) & (3) primary and additional considerations, - All in light of 60B (objects and principles)……ultimate issue is child’s best interests.

o Goode v Goode

- The starting point for all parenting applications – be they interim or final – is consideration of the presumption in favour of equal shared parental responsibility: s 61DA

- if equal shared parenting is ordered – automatically triggers operation of s 65DAA and consideration of equal parenting time

- where court finds neither equal or substantial time appropriate then consider s 60B and s 60CC

- same whether interim or final order - paramount consideration is the best interests of the child - but held that should consider provisions first and then look at the Goode v Goode approach

o Applying the presumption of equal shared responsibility

- First look at best interests: s 60B and s 60CC - Then look at presumption of equal shared parental responsibility: s 61DA - Once it is found the presumption is not rebutted then it must apply. - In U v U it was held that a court can order shared parental responsibility even if it is not

actually sought by either party. - The presumption does not apply where there are reasonable grounds to believe there has

been abuse of the child/family violence: s 61DA(2) - Situations where presumption may be rebutted:

o Where the parties are not able to communicate in any effective way about the relevant matters

o Where primary care is given to a non-parent o Where a parent has only played a minor role in the child’s life

o The operation of section 65DAA – the move to greater shared parenting

65AA Child’s best interests paramount consideration in making a parenting order Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

- The historical preference for mothers as custodians

o Historically, courts applied a principle in favour of females – ‘preferred role of the mother’

o Especially in young children, or young and growing girls – the presumption was strong o But later it was held that it is the psychological relationship and not the biological tie –

therefore no maternal deprivation - Epperson v Dampney (page 362-362 text)


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o However, court discarded this principle and in Sanders v Sanders it was held that placement of the child must be determined in line with best interest of the child

o This presumption was based on society’s view at the time that it was ‘natural’ that a young child’s needs would be met by the mother

- Section 65DA and shared parenting o Aimed to displace the historical presumption in favour of the mother o For time to be ‘substantial and significant’ with a parent as per s 65DA(3) need to look

duration of contact and how structured not just quantum of contact


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o Relevant Considerations in the exercise of the court’s discretion

- Determining child’s best interest must be in line with the provisions – court’s powers are highly discretionary and must be decided on the facts of each case

- Primary v Additional Considerations

o The primary considerations do not outweigh the additional o All considerations must be taken into account with particular emphasis on the primary

Ø Primary Considerations o The benefit to a child of a meaningful relationship with both parents

- ‘meaningful’ held to be important or significant and of value to the child and to be determined qualitatively (Mazorki v Albreight)

- How much of an advantage or benefit it will have on the child

o Protection from harm and family violence - also provisions in s 60CC(3)(J) AND (K) - Family violence is defined in section 4(1) as:

• family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

• Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

- This is an OBJECTIVE TEST (Reasonable person test) - The provisions of s 60CC(3) must be read together with ss 60CF and 60CG - Section 60CG imposes a duty on a person who is a party to the proceedings to

inform the court of any family violence order, of which that person is aware, applying to the child or member of the child’s family: s 60CF(1)

- Pursuant to s 60CF(2) persons who are not party to the proceedings who are aware of the relevant family violence order may inform the court of the family violence order. Failure to inform the court of a family violence order does not affect the validity of any order made by the court: s 60CF(3)

- Section 60CG states that in considering what order to make, the court must to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

• a) is consistent with any family violence order; and • b) does not expose a person to an unacceptable risk of family violence:

s 60CG(1) 60CG Court to consider risk of family violence

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family

violence. (2) For the purposes of paragraph (1)(b), the court may include in the

order any safeguards that it considers necessary for the safety of those affected by the order.


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1. Additional Considerations o Wishes of the Child: section 60CC(3)(a)

- ‘any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views’

- The wishes of the children are not decisive - The court is to have regards to the views of the child regardless of the age: Marriage of

Joannou - Must be considered (Marriage of Harrison and Woollard (1995)) and weight to be given will

depend on factors like strength, duration, maturity of child…Must give clear and cogent reasons if overriding child’s wishes [8.37].

- Can’t just ignore but can override if not in best interests. - [8.37] No “magic” age – (Jouannou (1985). “Best interests” principle will override wishes (Allen

v Allen Hargraves (1984), B and B (1997)). - Older children, more weight likely (ZN v YH and Child Representative (2002)) [8.37] kids aged

14,12 and 9 – mother wanted to move them to the US - R and R: Childs Wishes (2000) – must be given significant consideration - needs to be good

reason for departure. - Section 60CD – How court informs itself 60CD How the views of a child are expressed (1) Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child. (2) The court may inform itself of views expressed by a child:

(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or (Family Report) (b) by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or (Independent Representative) (c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate. (Talk to the child)

Note 1: Paragraph (a)—subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report. Note 2: Paragraph (b)—paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.

- Section 60CE: Children not required to express views.

o Relationship with Others: section 60CC(3)(b) - Parents and others (inc grandparents) Historically – there was once a “tender years”

presumption in favour of mother. - Now – no presumption in favour of mother OR parent for that matter Rice v Miller (1993) [8.52]

and [8.56], KAM v MJR (1999), Gronow (1980), Re Evelyn (1998). - Quality and strength of the relationship is the key. - But…Does 60CC(2)(a) suggest favour of parents over other relationships? Note discussion

[8.55-8.57]. - Parents and other significant persons. Importance of child maintaining ties with each parent –

Brown and Pederson (1991) – reinforced by 1996 and 2006 reforms. - See discussion Re Patrick (2002) – donor not a parent but the relationship was important [8.59]. - 60 CC (3)(b) Relevant to relocation cases – greater the bond, more disruption if change.

o 66CC(3)(c) – willingness and ability to facilitate/encourage relationship with

other parent. - New provision – consistent with new 60B and the 60CC (2) Primary Considerations.


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- Suggests party who does not facilitate/encourage will have that count against them. - Called the “friendly parent” provision – concern that 60CC(3)(c) could be used against a

parent who doesn’t agree to what other side wants re time with kids – fear to raise concerns re violence/abuse – “unfriendly”.

o Disturbing the status quo: section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances including the likely effect on the

child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

- widespread support for the need for stability - Raby(1976) and Jurrs (1976) - gravity of disturbance to status quo – any change required close

and anxious attention. - Must be adequate reasons to disturb Marriage of Peters and Castuera (1994). Loss of friends,

school, sporting ties etc also important. - BUT - No presumption in favour of status quo – best interests prevail. Change might be seen as

warranted if not promoting rel’ship with both parents (Raby’s case [8.43]) - This section remains relevant but in a rather reduced way

o Separation of siblings: section 60CC(3)(d)(ii) - As a general proposition separation of siblings is not seen as desirable - Separation from siblings generally regarded as NOT in best interests (Heidt (1976), Hayman

(1976), Dyer (1977) &H and H (1994)). - Some circumstances court will separate. See cases at [8.47] – strong attachment to one parent,

strong wishes, difference in age. o Cattanach and Leavens

§ Brother and sister – mother to move to US – even though they had a strong bond it was held that there was a need for separation as the boy had a strong bond with the dad and the girl with the mum

o Fitzgerald and Robinson § Wishes of the children

- Courts have held there is a difference between separating children and when there has already been separation

o H and H § Held that the unit of the three children should be preserved even though one

son moved out couple of weeks prior o The fact that kids may fight from time to time is not enough reason to separate them

Note separation from grandparents now specifically included.

o Cost/practical difficulty of time with each parent – Section 60CC(3)(e) - Also relevant to relocation cases. Reluctance to make order which will make cost/practical

difficulty of time with both parents prohibitive (B and B (1997)). - Increased relevance with greater emphasis on both parents having “meaningful

relationship” (60B(1)(a) and 60CC(2)(a)).

o Capacity to provide – Section 60CC(3)(f) - Emotional, physical AND intellectual needs. Not “who has best house/car/capacity to buy

gifts/ send to top school etc. (note age of children very relevant here). - No presumption in favour of mother Rice v Miller (1993) Gronow (1980) nor, indeed any

parent.


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o 60CC(3)(g) – maturity, sex, background inc culture - Child’s age, ethnic, traditional background, extended family, religion (see further discussion

under 60CC(3)(m)).

o 60CC(3)(h) – Aboriginal and TSI culture - Reference to A & TSI only inserted with ’95 amendments. - Early cases – Sanders (1976) – trial judge found by majority to have placed too much

weight on environmental issues – but not all judges agreed. - Marriage of McL (1989) – can’t judge accom. Standards by European standards – benefits

of extended family. - B and R and Separate Representative (1995) MUST recognise aboriginality, to fail to do so

is “less than equal justice”. - 95 Reform act – introduced ATSI culture into 68F(2)(g). - Re CP (1997) need for court to understand cultural background –evidence – extended

family – community. - 60CC(3)(h) amended in 2006. Also new reference in 60B – takes need for connection to

culture as a given rather than have court establish whether there is any need. - Changes reflect recommendations of Bringing Them Home Report and FLC report. - Will discuss further in week 12.

o 60CC(3)(i) attitude to child and responsibilities of parenthood.

- Matrimonial conduct (eg who leaves who, adultery) not relevant except as impacts on

child’s best interests Smythe (1983) – violence, abuse etc relevant. [8.61]. - Patsalou (1995) – derogatory comments re spouse –irresponsible attitude, bad example. - Conduct re contact-reasonableness. Inappropriate /irresponsible behaviour around children.

Lack of recognition of their needs, putting own priorities first. Overlap with new 60CC(3)(c)? - Kidnapping – doesn’t necessarily preclude “live with” or “time with” order – depends on best

interests (Schenck (1981) and Kress (1976)). See [8.64] - But, it is generally frowned upon – not in interests of child, reflects poorly re 60CC(3)(i) and

60CC(3)(c). - 60CC(3)(j) –(k) Family Violence and family Violence orders.

o Parents, third parties and the role of biology in decision making - Third parties can apply for a parenting order under ss 65CA(ba) and 65CA(c) - No presumption or preference in favour of natural parent: Rice v Miller - Australian courts have tended to give priority to the claims of natural parents – especially since

s 60CC(2)(a) refers to ‘maintaining relationship’ with both parents - See page 393 for cases - It is only where parents do not have a relationship with the child, or present some grave risk or

are otherwise considered unsuitable that they are likely to lose care of the child to a third party o Carlson v Bowden

§ Care to grandmother in case where both the parents were drug addicts o See page 397 – other cases o The conduct of the parties

- Wide interpretation – covers not only matrimonial conduct but other aspects such as promiscuity; drunkenness or drug use; and unconventional lifestyles.

- See pages 389-399 (sections 60CC(3)(f); s 60CC(3)(i); (3)(j); (3)(m))

o Matrimonial conduct - No fault


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- Will only be considered where it affects the welfare and best interests of the child including promiscuity or adultery.

o Kidnapping

- will not of itself disentitle a parent – need to look at paramount consideration - see page 401

o Unconventional Lifestyle

- Again need to look at how affects welfare of the child

o Homosexuality - Should not in theory disadvantage - See pages 402-405

o Religion - Contemporary approach is for the court not to get involved unless there is evidence that is

necessary in the interests of the child - See pages 405-408


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WEEK 4 LECTURE NOTES Before Applying – Family Dispute Resolution

- Must comply with Family Dispute resolution procedures – part VII, division 1, subdivision E, in particular s. 60I.

- Can’t commence proceedings unless certificate from FDR practitioner indicating attempt to resolve via FDR…unless coming under one of the exceptions in 60I (9) – risk of abuse or violence.

- Once matter goes to hearing, court must determine what is in child’s best interests (60CA) but how?

Relationship between 60B and 60CC

- Note 60B(1)a) and (b) principle are amplified by repetition in 60CC(2)(a) and (b). - The 60B objects will guide 60CA best interests and 60CC considerations. - Courts should promote “meaningful involvement of both parents to the maximum extent

possible” (60B) except where it must be ordered otherwise to protect the child. - Greater emphasis on involvement of both parents – generally regarded as being in best

interests if benefit to child. Procedure in child matters

- Evidence in child matters – procedure under Part VII Div 12A, rules of evidence largely do not apply in child matters. Representation by child admissible despite being hearsay (69ZV).

- Rules of evidence do not apply, much more judge control – issues, witnesses required. - Less adversarial. - Will look at this week 6.

Question 1 – How does court determine “best interests”? What is process?

- See pp. 286 – 288 [7.66-7.68]. Will involve application of 60CC, 61DA, and 65DAA …all in light of 60B objects…with 60CA (best interests) as the paramount consideration.

- Goode v Goode (2006) – first test case for 2006 changes – actually concerned interim parenting orders (more in week 6), but seen as providing the framework for court’s approach to part VII post 2006 (see [7.66] and [8.5]).

- Taylor and Barker (2007) (see [7.68] and [8.5]) court said that findings should be made on matters in 60CC first before looking at the 61DA – 65DAA process, but not mandatory to follow that order.

- 60CC(1) for determination of what orders will be in best interests (s. 60CA), court must have regard to the factors set out in:

o 60CC(2) – primary considerations, and then… o 60CC(3) – additional considerations o in light of the s. 60B principles.

- Section 61DA – presumption of equal shared parental responsibility - ESPR (subject to exceptions – violence, abuse by parent or person living with parent – 61DA(2)).

- If 61DA, doesn’t apply, must go to s. 60CC factors to determine what orders are in the child’s best interests).

- If 61DA applies then, under 65DAA, court must consider equal shared parenting time and, if not, must consider “substantial & significant time” (see [7.68]. Equal time or substantial and significant time will only apply if in best interests and reasonably practicable – 65DAA(5).

- What is “substantial and significant time”? (see 65DAA(3)). - Note discussion at [7.68] – - If abuse or violence, unlikely that equal time or subst/significant would be ordered because

exception to 61DA but …there is still, under 60CC(2)(a) emphasis on “meaningful relationship”

- 60CC(2) considered and 60CC(3) factors applied to decide what form that relationship will take.


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- 65DAA does not require party to ask for equal or subst & signif. time. Unlikely but possible if no ESPR.

- Note that best interests are the paramount but not sole consideration AMS v AIF (1999). Question 2 – presumptions re care

- See discussion [8.11 – 8.16]. - Traditional perception that mother is best person to care for children, particularly young

children: “the mother principle” – persisted until recently (see Epperson v Dampney (1976) [8.12].

- Current psychological theory stresses importance of emotional attachment and the “psychological parent”, regardless of gender role or biological connection.

- High court in Gronow and Gronow (1979) confirmed that there was no principle or presumption that a young child was best off in the ‘custody’ of the mother.

- “tender years” presumption – traditional notion that young children better off with mother – no longer supported.

- “parental presumption” – that child best off with a parent – no such presumption (see Nicholson’s comments in Re Evelyn (1998) p. 366).

Question 3 – FLA bias against men?

- No bias in legislation – gender neutral - BUT…note discussion in text at [8.14 – 8.16] – importance placed on maintenance of

stability of care …given gender roles in society, women more commonly in carer role. Sections 60CC(a), (b) and (c) will usually positively favour person who has been major carer – father or mother.

- 2006 changes – some have suggested unfairly weighted toward men – emphasis on shared care over need for protection, impact on women’s mobility, men using the new law to push for more time as a “power” issue.

Question 5

- Protection from harm now elevated to primary consideration status – 60CC(2)(a). Also part of 60B objects. Must be considered under 60CC(3)(j).

- Early view was that family violence not relevant unless kids were direct victims (Marriage of Heidt (1976)). Now accepted that this view is wrong. Jaeger’s case(1994) marked change in attitude.

- 1996 - first time specific consideration in FLA - 2006 reforms – strengthen but also weaken aspects.

Family Violence (text 6.8.1-6.8.5)

- Protection elevated to “primary consideration” but is it second fiddle to maintaining relationship?

- New definition of “family violence”(s.4). - Difficulties of proof. - “Pro-contact” emphasis. - 60CC(3)(c) impact. - S. 117AB costs orders. - New 60CC(3)(k) interim non-contested orders (ie consent or ex parte) wont be considered.

Will look at Family Violence (and types of orders) in week 10 in more detail. - Test for harm : “is there an unacceptable risk?” formulated by HCA in M and M (1988) –

leading case re sexual abuse. Adopted for risk of violence cases. - Not investigation into factual truth so much as whether an unacceptable risk. - A and A (1998) Court can examine allegation to decide whether unacceptable risk but not

court’s task to decide truth of allegation. - Will examine in more detail week 5.


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- 60CC(3)(l) – order/s less likely to lead to further proceedings Orders that can be complied with. Not complicated.

- 60CC(3)(m) Any other fact/circumstance

Questions 8 and 9 Religion – [8.69-8.75]

- irrelevant except in so far as impacts on “best interests of child” Paisio (No.2) (1979) – neutrality – court wont favour one religion over another (Sheridan (1994), but court may examine teachings of a religion for purpose of deciding “best interests” (Firth (1988).

- For an interesting discussion see more recent case of Elspeth and Peter (2006) re Exclusive Brethren.

- Court there said a religion cannot stop children having meaningful relationship with parents in contradiction to law.

60CC(3)(m) and Homosexuality Homosexuality [8.67]

- L and L (1983) – checklist for homosexual parents – treated as needing to have sepecial safeguards not applied to hetero parents.

- Doyle (1992) – didn’t dismiss the checklist but indicated homosexuality not relevant except where impacts on best interests.

- Unconventional lifestyle [8.65-8.66] - Horman (1976) – don’t have to fit a “norm” but how lifestyle will impact on child’s interests

is relevant.


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Seminar 5

‘SPEND TIME WITH’ ORDERS - Process same as “live with” orders. “spend time with” formerly known as “access” or “contact” –

apply same provisions – 61DA, 65DAA, 60B, 60CA, 60CC. - Section 64B(2)(b): Court may order child ‘spend time with a nominated person’ - Text [8.83-8.84] suggest early position that under FLA “access” was a parent’s right. (Marriage

v D’Agostino) - Cotton (1983) – not access for access sake. Must promote best interests – move to see it as

the child’s right, not parent’s. - Brown and Pederson (1992) [8.86]: court must look at what will benefit child – contact not a

right of the parent only to be denied for good and compelling reasons…but note court’s comment that time with both parents prima facie in child’s best interests.

- Irvine (1995): refusal of contact – violence –unacceptable risk – not in child’s interests.

o Question 1: Impact of reforms on spend-time with orders - 1996 changes [8.87] – 60B made it clear that children have a “right of contact on a regular basis

with both parents” and other significant people…unless contrary to best interests. - Note comments p. 417 re N and S (1995) – right to contact does not mean that it has to

happen. Rather, a right not be prevented from contact if that contact is in child’s interest. - [8.88] – describes 1996 changes as strengthening the “pro contact approach”. Studies cited

suggest reforms led to fewer no contact orders and more restriction on relocation. - Text suggests that 2006 amendments “fortify” the “pro-contact” approach [8.90], in particular

60B (1)(a) and the 60CC(2)(a) primary consideration re “benefit of meaningful relationship with both parents”.

- Combined with 61DA presumption and 65DAA, net effect has been that orders are being made giving more sharing of time. Scope for more time with the “spend time with” parent.

- Suspension of contact less likely. - Restriction on relocation. - Sanctions if stop time with other parent – 60CC(3)(c) “friendly parent”.

o Orders for children to spend time with non-parents - Marriage of E and E (No 2) – application for access by child’s aunt and uncle who had assisted

in caring for the child for a number of years - The position of third parties has been strengthened in the amendments where they can

demonstrate that they are a person ‘significant to the care, welfare and development of the child: s 60B(2)(b)

- Specific reference to grandparents ins ss 65C and 69C(2) - More inclined to give orders – will look at express wishes of child; nature of the relationship and

the degree of contact - Reissner case – V.Imp – see page 419 (US)

§ Order for child to return to US twice a year for two weeks to visit grandma - Long held that child could benefit from order allowing time with someone other than a parent

(remember s. 65C FLA – parent, child, grandparent or any person interested in child’s care, welfare and development may apply).

- Position of third party contact strengthened by 1996 reforms and 2006 reforms [8.92]. - Grandparents specifically mentioned at 60CC(3)(b)(ii) and 60CC(3)(d)(ii) as well. - Note approach in DG, DFYCC v Reissner (1999) – court ordered time with grandparent in US

with father (who had moved with child) to fund 80% travel costs.


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- Note cases of Jacks v Samson (2008) and Church v S Overton (2008) where grandparent took non separated parents to court to get “time with” order. Two different approaches [9.93].

o The impact of a child not wanting to spend time with a parent

- Question 2 – when would “no time with” be ordered? - Text suggests less likely that NO time be ordered post 2006 changes. - Would have to be clearly in child’s best interests NOT to have the time – no meaningful benefit

to child. - Note cases at [8.94] – [8.95] where child does not want time with a parent – wont be ordered if

child does not want and child is of sufficient age, maturity, free from other parent influence.

o Other issues re “time with” - See [8.96-8.97] – difficulties re enforcement where parent breaches orders. Cases focus on

“live with” parent not allowing time or other parent returning late/refusing return. - What about parents who don’t exercise the time ordered: “…it is even more difficult to force a

parent to see a child as ordered, than it is to force a parent to hand over a child to the other parent as ordered.” (p. 424). Technically a breach…should it be enforced?

o Allegations of child sexual abuse in contested child proceedings

- For the purposes of contested child proceedings under the FLA the best interests of the child are the paramount consideration (s 60CA) and in determining the child’s best interests, the court is required to have regard to the need to protect the child from physical or psychological harm caused or that may be caused by being subjected to or exposed to abuse: s 60CC(2)(b).

- This primary consideration reflects s 60B(1)(b) which states that one of the objects of Pt VII is to ensure children’s best interests are met by providing such protection.

- Pre-amendment case law continues to apply - Some key problems of dealing with such allegations discussed [8.100 – 8.101]

o Number of practical difficulties o Typically, there are no independent witnesses – the abuser will vigorously deny o Abusers often seek to preserve secrecy by threats/promises to the child o Therefore, children find it difficult to discuss the topic especially with strangers o Where young children are involved doubts may be raised about reliability o Medical evidence is not conclusive o Also risk of deliberately false allegations being made by a parent, as a desperate

strategy in gaining an advantage in proceedings o Making a false allegation would involve a serious risk of having the child placed in the

care of the other parent o Moose v Moose

§ Found no unacceptable risks of abuse, judge was bound to consider the possibility of making orders that fostered a meaningful relationship between the father and the children. The implication of this is that, had an unacceptable risk of abuse been found to exist, the obligations in relation to building the parent-child relationship would give way to the protection of the child.

§ The court will look to every possible avenue to maintain the relationship between a child and parent, even when it finds there is some risk of abuse – that is the court will attempt to eliminate the risk by modifying the form of contact, usually by requiring some sort of supervision

- M and M (1988) leading case – High Court established principle of “unacceptable risk” - No need to prove the allegation, only determine the risk – ie not make an order re “custody or

access” in favour of a party if to do so would expose child to unacceptable risk. - What are some of the issues/problems with the test? Discuss. - We can see therefore that determining child placement in disputed cases, or whether a parent

should be permitted to spend time with a child, in the context of an unsubstantiated claim of sexual abuse, is an exceedingly difficult task for the Family Court


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- The approach of the court has been to focus on the risk of a child being subjected to abuse and to ensure that the child is protected from exposure to ‘unacceptable risk’ rather then focusing on the person accused of perpetrating that abuse and determining that person’s guilt. While this approach may be in conflict with the presumption of innocence, and may in some circumstances operate unfairly against a person whom an unfounded allegation has been made, it is an inevitable one, given the obligation on the court to regard the best interests of the child as the paramount consideration. The 2006 amendments to Pt VII have not altered the approach to be adopted in these cases.

- There are two primary issues that need to be addressed in cases where there has been an allegation of child sexual abuse.

o First, precisely what needs to be established in relation to the alleged conduct. § In the 1998 HC case of M v M involved an application by the father to spend

time with the child, but access was denied as a result of allegations of child sexual abuse against the father. There was no conclusive evidence of abuse. Although the trial judge was not satisfied on the balance of probabilities that the father had abused the child, he considered that there was a possibility that the father had done so. He consequently made orders denying contact so as to eliminate any risk of abuse.

§ Subsequent appeals bought by the father and ultimately to the HC were dismissed, the appellant had argued that the court must, in the frist instance determine whether the alleged sexual abuse has occurred and only if so satisfied on the balance of probabilities does the court proceed to consider whether there is a real and substantial risk of abuse occurring.

§ The HC held that the paramount consideration is whether the making of the order is in the best interests of the child not the allegation of sexual abuse.

§ The court held that in determining what is in the child’s best interest the role of the court is to determine the risk of sexual abuse occurring and the magnitude of the risk.

§ Test: A court will not grant custody or access (now parenting orders that a child live or spend time with another person) if that custody or access would expose the child to an unacceptable risk of sexual abuse.

§ Issue: in practice there are difficulties in determining what is an ‘unacceptable risk’ – circular in operation – an unacceptable risk is one that is not acceptable – the test does not define the point at which a risk of abuse becomes unacceptable – up to the discretion of the judge to decide

§ Napier and Hephburn • In applying the test need to give ‘real and substantial consideration’ to

the facts of the case and decide whether those facts could be said to raise an unacceptable risk – such factors as nature of events; who made allegation; level of detail; period of time involved; effects on child; basis of allegations; expert evidence etc

o Secondly, what is the required standard of proof. § W and W (abuse allegations: unacceptable risk)

• High standard of balance of probabilities • See pages 429-430

§ B v B § Supervised access? P 430 § Discussion on whether supervised contact is worse b/c child forced to see

abuser – is paramount consideration being compromised?? § Question 5 – Criticism of Re W

• See [8.108] (at p. 432) to [8.109]. • Balance between right to contact and right to protection from abuse.


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• Termination of relationship with parent as a “last resort”. Court suggested a “false negative” finding with “appropriate safeguards” better than an “erroneous positive” finding leading to cessation of relationship.

• Authors and others critical of approach in Re W – underestimates impact on kids of being forced to spend time with abusers.

• Note comments by Brown J in McCoy and Wessex (2007) (see p. 433). • Authors express concern (p. 434) that it is now more likely that abused

children wont be protected than it is that contact will be stopped. § M and H (1996) – not for alleged abuser to have to disprove allegations. § As to how to apply the test, see quote from Fogarty J in In the marriage of N

and S (1995) on p. 429 § [8.106] W and W (2005) and WK v SR (2004) and other cases confirm that

court does need to be satisfied on balance of probabilities that something has actually occurred.

§ Note text indicates W and W (abuse allegations: unacceptable risk)(2005) – provides useful summary of the law.

o Special procedure for such cases. See Part VII, Div 8, Subdivision D (Discussed at [8.112])

o S. 67Z notification – must serve prescribed notice on other side. Registrar must notify relevant child welfare authority (eg DOCS in NSW). Authority can then intervene.

o Section 92A o Child can be examined (s. 68M), but restrictions – s. 102A o Issues as to presentation of evidence, exception to hearsay, admissibility of police

evidence, impact on child of medical/psychological examinations see [8.115-117]. o Note FCA has no ability to investigate allegations other than via family consultants

(counsellors), medical and psych reports – no Federal Child Protection service. o Issues complicated by:

§ potential sanctions for unproved allegations – s. 60CC(3)(c) and s. 117AB costs order.

§ conflicting pressure of “maintaining relationship with both parents” versus “protection from harm”.

o Too much emphasis on the time with both parents aspect post 2006 at expense of child safety?

Question 6 – problem question: Requirements to disclose? (see subject outline) - Any obligations on you to disclose the suspected abuse? Not unless acting as children’s lawyer

(see 67ZA). - If disclose without consent you may be breaching confidentiality (rule 2 Solicitors Rules). - Counsel client, question more on basis of fear – other evidence? Try to get permission – point

out children’s interests paramount. Also must warn re 117AB. - Could sign up to property orders then make application for parenting orders limiting contact. - The prior agreement will be used in court as evidence of what the intention of parties was at the

time. - Issues re s. 60CC(3)(c) and s. 117AB. - If going to raise, must issue s. 67Z notice.

Relocation Cases - Common dispute – parent with major care wants to move.


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- Gender dimension – more impact on mothers as they more often the main carer. No restriction on “time with” parent (ie no cases stopping “contact” parent from moving because move will impact contact). Restriction of movement – strengthened by 1996 and 2006 changes.

- Relocation – pre 1996 - Pre 1996 cases favored freedom of movement of custodial parent eg Craven (1976) (see

[8.122]. - Holmes (1988) O/s move OK if bona fide and party will still promote relationship with other

parent - if custodian unhappy, will impinge on others in household. - Fragomelli (1993) custodial parent should be left to live life freely. - Relocation – 1996 reforms - 1996 Reforms – greater emphasis on joint involvement (see discussion [8.122 – 8.126] - B and B (1997) – test of 96 reforms – best interests paramount, not parent’s freedom but

forcing parent to stay put may subject family to hardship – not in child’s best interests. - AMS and AIF: AIF and AMS (1999) – no need for compelling reasons, best interests paramount

but not the only concern. o Child’s best interest remains the paramount consideration and it is not appropriate for a

court to demonstrate a ‘compelling reason’ to move – move overseas will not necessarily be restrained p 439

- Martin and Martruglio (1999) - freedom of movement cannot prevail over best interests of child. - Relocation post 1996 - A and A: Relocation Cases (2000) – summarised principles to apply and suggested there is 3

stages: 1. Identify relevant competing proposals. 2. For each 68F(2) (now 60CC) factor, set out relevant evidence and submissions with

attention to how each proposal has advantages/disadvantages for that factor and find as see fit having regard to 60B.

3. On basis of prior steps, determine/explain why one of the proposals is to be preferred, having regard to “best interests” principle.

- U v U (2002) – High Court endorsed earlier decisions but emphasised that mobility of resident parent must defer to paramountcy of child’s best interests – Kirby and Gaudron JJ suggest this detrimental to resident parents (more often than not mothers). Gaudron – asked why possibility that non-resident parent should relocate was not explored. (Indian couple)

- Court said it wasn’t bound by parents’ proposals – could make arrangement that best promoted child’s interests.

- U v U still leading case. - Question 7: Relocation post 2006 – impact of reforms. - Text at [8.126] says must look at U v U in light of 2006 changes. - Impact of 60B(1)(a) and 60CC(2)(a) – meaningful relationship with both parents. - 60B(2) (b) – spend time on regular a basis. - Where does 65DAA fit in with relocation? If relocate, what happens re equal or substantial and

significant time? - Post 2006, court has suggested Goode v Goode approach must be applied. - Sampson v Hartnett (No 10) [2007] Fam CA 1365, (see p. 442 of text). Full Court said court had

power to both restrain and order relocation. Trial judge ordered SPR and said mother should relocate to Sydney with child to be closer to father so they could both have role.

- Mother appealed. Full court confirmed that court did have power (even though coercive) to order mum to move, but should not have exercised here – must consider impact on mother as well.

- On appeal, Kay J stated: - “It requires a choice of which parent is to be the primary care giver, that is, with which

parent the children are to live, and then a choice of what opportunities should be provided to the other parent to have the children spend time with them.”


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- Relocation post 2006 - Family law Council submissions re reform [8.127] - Suggest specific provisions for relocation. - Authors of text not sure necessary as all matters can be considered as law presently stands. - Note comments at [8.29] – conflicting evidence as to whether, in reality, relocation orders are

harder to get.

o Change of child’s name - At common law – child took the father’s name - Question 8 - Change of child’s surname - “best interests” applies. - Surname is “major long term issue” s4 (1) – if ESPR (61DA), both parents have say. - As a matter of law, name change can’t be registered w/o consent of both parties. - If one party applies to court to force issue, “best interests” applies – Chapman v Palmer (1978)

leading case - name that will best promote interests of child [8.134] and cases at [8.135]. - Chapman v Palmer

o Guidelines § Welfare of the child as paramount consideration § Short and long-term effects of change in name § Any embarrassment to child if name is different to parent living with § Any confusion of identity that may arise § Any effect on the relationship between the child and the parent who’s surname

had during the marriage § The effect of frequent or random changes of name


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CHILD MAINTENANCE AND CHILD SUPPORT

CHILD MAINTENANCE: SS 66B-66N FLA 66B Objects (1) The principal object of this Division is to ensure that children receive a proper level of financial

support from their parents. (2) Particular objects of this Division include ensuring:

(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

(b) that parents share equitably in the support of their children. 66C Principles—parents have primary duty to maintain (1) The parents of a child have, subject to this Division, the primary duty to maintain the child. (2) Without limiting the generality of subsection (1), the duty of a parent to maintain a child: (a) is not of lower priority than the duty of the parent to maintain any other child or another person; and (b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

(i) himself or herself; or (ii) any other child or another person that the parent has a duty to maintain; and

(c) is not affected by: (i) the duty of any other person to maintain the child; or (ii) any entitlement of the child or another person to an income tested pension, allowance or benefit.

66D Principles—when step-parents have a duty to maintain

(1) The step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step-parent to have that duty.

(2) Any duty of a step-parent to maintain a step-child: (a) is a secondary duty subject to the primary duty of the parents of the child to

maintain the child; and (b) does not derogate from the primary duty of the parents to maintain the child.

66E Child maintenance order not to be made etc. if application for administrative assessment of child support could be made

(1) A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.

2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).


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(3) This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

66F Who may apply for a child maintenance order

(1) Unless subsection (2) applies, a child maintenance order in relation to a child may be applied for by:

(a) either or both of the child’s parents; or (b) the child; or (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child.

(2) A child maintenance order in relation to a child who is under the guardianship, or in the care (however described), of a person under a child welfare law may only be applied for by:

(a) the child; or (b) a parent of the child who has the daily care of the child; or (c) a relative of the child who has the daily care of the child; or (d) a child welfare officer of the relevant State or Territory.

66G Court’s power to make child maintenance order

In proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper.

66H Approach to be taken in proceedings for child maintenance order

In proceedings for the making of a child maintenance order in relation to a child, the court must:

(a) consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J); and

(b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in section 66K).

66J Matters to be taken into account in considering financial support necessary for maintenance of child

(1) In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

(a) the matters mentioned in section 66B; and (b) the proper needs of the child (this is expanded on in subsection (2)); and (c) the income, earning capacity, property and financial resources of the child (this is

expanded on in subsection (3)).

(2) In taking into account the proper needs of the child the court: (a) must have regard to: (i) the age of the child; and (ii) the manner in which the child is being, and in which the parents expected

the child to be, educated or trained; and


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(iii) any special needs of the child; and (b) may have regard, to the extent to which the court considers appropriate in the

circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must:

(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

(b) disregard: (i) the income, earning capacity, property and financial resources of any other

person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

(ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.

(4) Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

66K Matters to be taken into account in determining contribution that should be made by party etc.

(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

(a) the matters mentioned in sections 66B, 66C and 66D; and (b) the income, earning capacity, property and financial resources of the party or

each of those parties (this is expanded on in subsection (2)); and (c) the commitments of the party, or each of those parties, that are necessary to

enable the party to support: (i) himself or herself; or (ii) any other child or another person that the person has a duty to maintain;

and (d) the direct and indirect costs incurred by the parent or other person with whom the

child lives in providing care for the child (this is expanded on in subsection (3)); and

(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:


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(a) any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

(b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

(a) by way of lump sum payment; or (b) by way of transfer or settlement of property; or (c) in any other way.

(6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

66L Children who are 18 or over

(1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:

(a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child.

The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:

(a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child.

(3) A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.

66M When step-parents have a duty to maintain

(1) As stated in section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.

(2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.

(3) In making an order under subsection (2), the court must have regard to these (and no other) matters:

(a) the matters referred to in sections 60F, 66B and 66C; and (b) the length and circumstances of the marriage to, or relationship with, the relevant

parent of the child; and (c) the relationship that has existed between the step-parent and the child; and (d) the arrangements that have existed for the maintenance of the child; and


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(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

66N Determining financial contribution of step-parent

In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child, the court must take into account:

(a) the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and (b) the extent to which the primary duty of the parents to maintain the child is being,

and can be fulfilled.


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CHILD MAINTENANCE AND CHILD SUPPORT o CHILD MAINTENANCE: SS 66B-66N FLA

- Two schemes for financial support of kids – FLA Child maintenance and the Child Support

Scheme. - FLA - Part Vll, Division 7 deals with Child maintenance. - Child support scheme (CSS) is under Child Support (Assessment) Act (CSAA) and Child

Support Registration and Collection Act (CSRCA). - Child Maintenance/ Child Support UNDER FLA - S.66B objects – parents equitably share proper level of financial support for kids. - s.66C FLA – liability of parent to maintain child. - Duty to maintain not lower priority than duty to maintain any other child/person (eg spouse of

subsequent relationship). - 66H – Court’s approach - Two steps: - consider financial support necessary for child’s maintenance - determine financial contribution necessary for child’s maintenance that should be made by a

party. - Question 9: Child Maintenance/ Child Support - FLA - 66E – can’t make order for CM if CS Scheme applies. - Because CSS applies to all kids born after 30 Sep 1989 (21 years ago), FLA provisions now

only apply to Step parent maintenance (66M) and maintenance for kids over 18 (66L). - Step parent only has duty to maintain step child if court order. 66D and 66M. Duty to maintain

step child is secondary to duty re own children. - Child Maintenance/ Child Support FLA - S.66J (1) – matters to be taken into account in determining support necessary: (a) 66B objects (b) proper needs of child (c) income, earning capacity prop. and fin. resources of the child. - 66J (2) and (3) respectively expand on 66J(1) (b) and (c). - Second Step – determining contribution of parent – 66K - Court looks at matters in 66B, 66C and 66D AND: - income, earning capacity, prop and fin. resources of parent, commitments to support self and

any child /person where duty to maintain, actual costs incurred by parent who child lives with. - Liability ceases at 18 but court has power to go beyond 18 in special circumstances 66L. - Child Support - CS Scheme (CSS) now applies to all kids other than step child orders or over 18s. - CSS administered by Child Support Agency (CSA). - CSA linked to ATO –check income of parents. Payee applies for administrative assessment.

Formula applied, payer advised must pay – if PAYG owner payments could be deducted from wages

- Background to CS Scheme - 1970’s and 80’s – increased divorce, people living together – 90% rise in single parent families

1974 -1987. - Number of soc sec dependant families rose 40%-70%. - Only way to get fin. contrib from ex-partner/spouse was via court under FLA – costly, time

consuming. - Theory behind scheme – make it easier to get contribution from parent. Reduce social security

dependency. Force both parents to contribute.


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- Payee applies - Administrative assessment. - If either party not happy may apply for review. If still not happy after exhausting review process

can apply to court for departure from administrative assessment (s.116 CSAA). - Must fall under one of the special circumstances in s. 117 CSAA. - If a special circumstance established court must decide if a change is “just and equitable” and if

otherwise proper to make the order (Marriage of Gyselman (1991)). - Q. 10 - Child Support Scheme criticism - Criticism and reform of CS Scheme. - Criticism:

o bureaucratic, “anti-man”, $$ not linked to age of child, no control over expenditure of $$, limited scope for “in kind” payments, link to number of nights (no discount for payer who has kids on days – no discount until at least 30% or 110 nights/yr) , formula not properly taking into account both parents’ incomes.

- Child Support - 2003 enquiry into parenting issues also looked at numerous complaints re CS. - Child Support task force set up to review scheme - “Best Interests of the Children” report 2005. - Reforms 2006 -2008: - New minimum amount, new formula, greater scope for “in kind” payments, differentiation re age

of kids (less for under 12s), calculation of combined income. - Reduction in liability once payer has child at least 1 night per week – reducing scale. - Overall reduction in monies payable. - Question 11 – Magill’s case - Mr M. paid CS for 3 kids – found out later , 2 not his. Sued for damages for psychological

injury, lost income – relied on tort of deceit. NOT about CS repayment (available under s. 143 CSAA…but note, M was behind anyway).

- Mr M successful at trial BUT Appeal Court overturned trial judge on technical point. - Court discussed whether tort of deceit is appropriate in family context – what if lie for ‘good of

family” – which deceits should actionable? - Should a lie like Mrs M’s made to keep family together put her at a legal disadvantage? Ø CHILD SUPPORT - See text p 560 re objects in section 4 - Children to whom the administrative assessment applies - ‘eligible children’ – ss 19-21 – born on or after 1 October 1989 – parents have separated on or

after 1 October 1989 or child is born prior to 1 October 1989 but had younger siblings born after 1 October 1989

- Notion of separation has same meaning as under FLA - Child must be under 18; ‘not a member of a couple’; and either present in Australia on the day

application made or an Aus citizen/ordinary resident on that day: s 24 - Parents who may apply for administrative assessment - Ss 25 and 25A (see p 562 text) – basically a parent who is not living with the parent from whom

payment is sought - Persons who may be liable for administrative assessment - Can only be made against a person who is a parent of the child and resident in Australia on the

day the application is made - See pp562-563 text - Recovering money wrongly paid under administrative assessment - See page 563 - Processing applications for administrative assessment - See p 566 - Child support period - P 566 - Statutory formula for administrative assessment of child support


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- See pp 566-567 - IMP READ THESE PAGES - Departure from administrative assessment - See pages 570-573 V.IMP READ THESE PAGES


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Children and Parents: The Legislative Framework (CH 7) – Seminar 6

THE LESS ADVERSARIAL TRIAL - Aim of introduction of Pt VII Div 12A is to mitigate the adversarial nature of child proceedings

and to make them more child focused, less formal, more flexible and potentially less costly. - Question 1- Pt. VII Div 12A Less Adversarial Trial (LAT) - Introduced with 2006 amendments - based on the “children’s cases program” (CCP) which ran

2004-2005. Features set out [7.74]

69ZN Principles for conducting child-related proceedings

Application of the principles

(1) The court must give effect to the principles in this section: (a) in performing duties and exercising powers (whether under this Division or

otherwise) in relation to child-related proceedings; and (b) in making other decisions about the conduct of child-related proceedings.

Failure to do so does not invalidate the proceedings or any order made in them.

(2) Regard is to be had to the principles in interpreting this Division.

Principle 1

(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Principle 2

(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned against family violence, child abuse and child neglect; and (b) the parties to the proceedings against family violence.

Principle 4

(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.


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Principle 5

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

- Rules of Evidence do not apply (s. 69ZT) unless exceptional circumstances (s. 69ZX – eg

criminal sanctions for breach) - Greater judge control – relevant over issues and witnesses to be called. Same judge stays in

matter. - Judge may interview child in chambers. - Child hearsay allowed (69ZV). - Applies to proceedings wholly or partly under Pt VII (ie could be about kids and property) s.

69ZM. - 69ZN sets out principles to apply:

o Needs of child, impact of proceedings. o Active control/management of court. o Conduct proceedings in way that safeguards against violence, neglect, abuse. o Promote co-operation, child-focussed parenting. o No undue delay, low formality/technicality.

- BUT must still observe procedural fairness (Truman (2008) and also Crestin (2008)) [7.76].

Question 2 – How is child’s voice heard? - Representation of Children [7.77-7.92]. - S. 68L – Court can appoint “independent children’s lawyer” (ICL) (formerly ‘separate

representative’ or ‘child representative) – broad power to appoint except but only appointed in exceptional circumstances where international child abduction (s.68L(3)).

- ICL not a direct representative – not obliged to act on child’s instructions but to make submissions to court re child’s “best interests”.

- Unusual role for a lawyer. Likened to counsel assisting a commission (Bennett and Bennett (1990) see [7.86]) – help court secure outcome that is in child’s best interests.

- Re K (1994) [7.81] was leading case as to when child rep would be appointed: o laid down 13 categories of cases including where allegations of child abuse, intractable

conflict between parents, child of mature years with strong views, complete denial of contact by one parent.

- Re K still applies considerations still apply – appointment matter for court’s discretion. - Who pays? Legal Aid will organise lawyer (panel) but will seek money from parties [7.83] –

disincentive to seek appointment? - What does ICL actually do?

o See [7.84-7.90]. Lyons v Boseley (1978) – lawyer’s job is to cross examine parties & their witnesses, present direct evidence to court about the child, present (in appropriate cases) evidence of child’s wishes. Should meet/confer with child(ren).

- 2003 – Guidelines published [7.89] – suggest that child’s interests normally served by lawyer involving them in decision process.

- 68LA (inserted 2006) now spells out the role more clearly – makes it clear that it is an independent “best interests” role.


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68LA Role of independent children’s lawyer When section applies

(1) This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.

General nature of role of independent children’s lawyer

(2) The independent children’s lawyer must: (a) form an independent view, based on the evidence available to the independent

children’s lawyer, of what is in the best interests of the child; and (b) act in relation to the proceedings in what the independent children’s lawyer

believes to be the best interests of the child.

(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4) The independent children’s lawyer: (a) is not the child’s legal representative; and (b) is not obliged to act on the child’s instructions in relation to the proceedings.

Specific duties of independent children’s lawyer

(5) The independent children’s lawyer must: (a) act impartially in dealings with the parties to the proceedings; and (b) ensure that any views expressed by the child in relation to the matters to which

the proceedings relate are fully put before the court; and (c) if a report or other document that relates to the child is to be used in the

proceedings: (i) analyse the report or other document to identify those matters in the report

or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court’s attention; and (d) endeavour to minimise the trauma to the child associated with the proceedings;

and (e) facilitate an agreed resolution of matters at issue in the proceedings to the extent

to which doing so is in the best interests of the child.

Disclosure of information

(6) Subject to subsection (7), the independent children’s lawyer: (a) is not under an obligation to disclose to the court; (b) cannot be required to disclose to the court;

any information that the child communicates to the independent children’s lawyer.

(7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.

(8) Subsection (7) applies even if the disclosure is made against the wishes of thechild.


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- See [7.91] for cases where ICL removed for inappropriate behaviour – eg acting contrary to child’s interests, unprofessional behaviour, lack of professional objectivity, conflict of interest.

Family counseling in respect of children - Pt II of FLA - Family counseling is defined in s 10B as a process by which ‘family counsellor’ helps people

deal with the ‘personal and interpersonal’ issues surrounding marriage, separation and divorce, including issues that relate to the care of children. People can off course access non-court based counselors at any time but under s 13C the court may order one or more parties at any time to attend counseling in relation to child matters. Under s 65F(2)(a) a court must not make a parenting order unless the parties have attended counseling.

- Q. 2 – Hearing the child’s ‘voice’ via other means. - Under 65F(2), court cannot make a final parenting order unless parties have been to “family

counselling” (unless urgent need or special circumstance – eg violence). - Counsellors can listen to child’s concerns. - Counselling is CONFIDENTIAL except for the few exceptions provided in s.10D (see [7.93]). - “family consultants” (used to be “family court counsellors”) work in FCA system. Things said to

them are admissible (see [7.94) – s. 11C.

Expert Evidence - Q. 2 – Hearing the child’s ‘voice’ via other means - Expert reports - Parties used to be able to call own experts (eg psychologist). - Epperson v Dampney (1976) (see [7.96]) - Court cannot relinquish adjudicatory role to experts

– court must evaluate not just blindly accept. - Since 2004, Pt 15 of Family Law Rules provides for appointment by parties of a single expert

whose primary duty is to court, not the parties. Party can’t get own expert without the leave of the court.

- Saves people shopping for “hired guns”. - Q. 2 – Hearing the child’s ‘voice’ via other means – expert/consultant reports - S. 68M – child’s rep can ask child to be made available for examination (eg physical,

psychological). - S. 62G court may order a report from a family consultant on such matters relevant to the

proceedings as the court thinks desirable. Parties can cross examine author. Usually ordered only where no independent expert evidence.

- Marriage of Hall (1979) – no magic in a court report

Interim Residence Orders - Q. 3 - Interim Residence Orders - Are considerations different to final orders? - Pre 2006 cases: - Cilento (1980) “status quo” seen as important – not a full investigation into factors but best

interests still paramount. - D and Y (1995) , C and C (1996) – not final in nature


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- Cowling (1998) – limited examination of factors only, if settled, status quo should prevail unless not in best interests [7.113].

- Goode v Goode [2006] FamCA 1346 (see [7.114]): whilst interim applications still only abridged proceedings (ie can’t hear full evidence on all factors), the 2006 amendments (esp new 60B amendments, s. 61DA and s. 65DAA mean that interim matters cannot now be dealt with on basis that status quo should normally prevail.

- still need to see if joint PR. If it applies, need to look at substantial involvement of both parents (unless contrary to interests).

- approach of Cilento and Cowling re status quo rejected. - Note problems pointed out in text at 7.115 and 7.116 – how to deal with ‘relocation’ cases and

sexual abuse fairly on an interim basis if court can only carry out an abridged hearing. - Question 4 - Varying orders - Orders are never final (Dodd and Dodd (1976) [7.117]) but variation is subject to best interests

– needs for change in circumstances since prior hearing – threshold issue - (Hayman (1976), Rice and Asplund (1979) [7.119]). Is there some new evidence making current orders no longer in best interests?

- See commentary on SPS and PLS (2008) [7.121] decided under post 2006 changes: Rule in Rice v Asplund still applies and can be preliminary question BUT must be measured against “best interests”, s. 60B principles, s. 61DA etc.

- Question 5: S.67ZC(1) – “Welfare Power” - “parens patriae” jurisdiction. - Invoked in context of medical intervention going beyond married parent’s normal right of

consent (eg sterilisation) - Re Marion (1992) HCA confirmed that FCA had power to intervene in non-therapeutic

sterilization of child of a marriage. Need court permission [7.132]. It is a “best interests” approach as confirmed in P and P (1995) (see 7.137-138]).

- See also Re A (A child) (1993) re sex re-assignment and Re Alex (2004) – hormone for gender change treatment [7.139].

- S. 67ZC later invoked in no. of cases involving children in immigration detention to restrain Minister from keeping them in detention. Full Ct said 67ZC gave FCA power.

- High Court decided that FCA does NOT have power to make orders re kids in detention under 67ZC (MIMIA and B (No.3) (2004) [7.140].

- Needs link to matrimonial cause or aspect of parental responsibility – not present. - Power limited to medical intervention type cases.

Enforcement of orders in relation to children o The Current Legislative Scheme

- Question 6: Enforcement/compliance - 2006 amendments have made enforcement regime tougher [7.143-7.144]. - Part VII Div 13A deals with enforcement of parenting orders. - 70NAA – summarises power of Ct – can vary orders, can find that there has been a

contravention with no reasonable excuse (for what constitutes “reasonable excuse” see 70NAE).

- 70NBA – balance of probabilities is the standard of proof – also sets out what must be taken into account (See [7.145]).


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- Division 13A divides contraventions without reasonable excuse into “less serious” (no previous sanctions for contravention or no current proceedings re contravention) and “more serious” (previous sanctions or existing proceedings).

- 70NEB Powers of Court where “Less serious” contravention– Court may order attendance at parenting program, compensation order/make up time, impose a bond (under 70NEB), costs orders.

- 70NFB – “more serious” – can impose bond, fine, community service, compensation for time, costs, imprisonment pursuant to 70NFG – not more than 12 months but only if satisfied other options in 70NFB not appropriate.

- Note Dobbs v Brayson (2007) [7.145} – mother imprisoned for repeated breach but appeal court found that proper consideration not given to child’s best interests.

- Note too discussion at 7.154 – no enforcement where person fails to exercise contact as ordered – contact as “right of child” therefore reluctant to enforce.

- [7.155] – where imprisonment being considered, standard of proof is not the civil standard but the criminal standard – problematic.

- [7.156] – power to punish for contempt under s. 112AP.

o Question 7 : Location/Recovery Orders and Child abduction - FLA s.65M, 65N, 65NA – obligation not to interfere with residence/contact orders [7.157]. - Abduction generally seen as contrary to best interests: Schenk (1981) (see [8.64]). - Location orders - (s.67J, power to order, 67M) court order requiring a party to provide court with

information re whereabouts of children. Best interests paramount (67L) - 67N – commonwealth information order - Recovery orders (s.67Q) – court order requiring a person to return child to a specified party.

Power – 67U. Court’s determination subject to “best interests” principle (67V). - Recovery order does not depend on an existing parenting order (see 67Q(a)). - Child abduction - International Child abduction - 65Y (1) 3 year imprisonment if intentionally/recklessly take/send child OS unless consent if

defeats parenting order or order pending. 65Z – owners of vessels – penalties if remove child from Oz despite notification.

International Child Abduction - See text re discussion – pp 344-355 Q. 8 - Hague Convention and Family Law (Child Abduction Convention) Regulations, 1986. - Applies to member countries – mechanism for return of abducted child home. - Regulations enacted to give effect to convention. Child removed to Australia will be returned to

member country if “habitually resident” there and “rights of custody” are attributable to a person in that country (either by court order or law – eg. by a presumption such as equal PR).

- Best interests don’t apply. - If application made re child removed from O/s to Australia, central authority (AG Dept) must

take action to return except if application made after child in Australia for more than 1 year,


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exception if child “settled” in new environment (see discussion [7.168]) – onus on party opposing return to prove.

- Exception if return poses “grave risk” to child. - What is “grave risk”? (see [7.169]) – more than distress. Note approach in JLM case (2003)

where mother threatened suicide. - Zafiropoulous (2006) [7.170]- relevance of past family violence. - No ability to use this mechanism in another country if not signatory.

INSERT PRINTED SECTIONS OF DIVISION 12A AND DIVISION 13A

Family Law (Hague Convention on child abduction) Regulations 1986

11 State Central Authorities and accredited bodies

For these Regulations, a State Central Authority of a State is taken to have carried out a function if the function is carried out by an accredited body of the State.

13 Notice of revocation

(1) As soon as practicable after a State Central Authority revokes the accreditation of a body, the State Central Authority must tell the Commonwealth Central Authority, in writing, about the revocation.

(2) As soon as practicable after the Commonwealth Central Authority is given information under subregulation (1):

(a) it must give the Bureau the information, in writing; and (b) it must publish a notice of the revocation in the Gazette.

(3) If a State to which subregulation (1) does not apply gives the Commonwealth Central Authority information of a kind mentioned in the subregulation, the Commonwealth Central Authority must comply with subregulation (2) as if the information were given under subregulation (1).

Note Subregulation 13 (1) does not necessarily apply to all States — see regulation 34.

14 Adoption of Australian child into a Convention country

(1) This regulation applies if arrangements for the adoption of a child, who is habitually resident in Australia, by a person who is, or persons who are, habitually resident in a Convention country, are made in accordance with:

(a) the Convention; and (b) the laws of the Commonwealth and the State in which the child is habitually

resident; and (c) the laws of the Convention country.


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(2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons.

(2A) The application must: (a) be in accordance with Form 3; and (b) include an affidavit in accordance with Form 2.

(2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State where the child who is the subject of the application habitually resides.

(2C) As soon as practicable, the State Central Authority must give notice, in accordance with Form 4, of the application to any person of whom the Authority is aware as having an interest in whether the application is granted.

(2D) A person to whom the notice is given: (a) no later than 5 working days before the court hearing, may file with the court a

statement in accordance with Form 5 that sets out briefly the matters on which the person wishes to rely in support of the court making an order other than the order sought in the application; and

(b) must include with that statement an affidavit in accordance with Form 2.

(2E) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2D), being a reply that:

(a) is in accordance with Form 6; and (b) includes an affidavit in accordance with Form 2.

(2F) An order made by the court must be in accordance with Form 7.

(3) The court may make the order only if it is satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the

child; and (b) the State Central Authority of the State in which the child habitually resides has

agreed to the adoption of the child; and (c) the adoption is in the best interests of the child.

(4) However, the court must not make the order if: (a) the child is not in Australia; or (b) the child is not allowed to leave Australia: (i) under a law of the Commonwealth or a State; or (ii) because of an order of a court of the Commonwealth or a State.

(5) The best interests of a child must be determined in accordance with section 68F of the Act.

Note This regulation does not necessarily apply to all States — see regulation 34.


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16 Adoption of a child from a Convention country to Australia

(1) This regulation applies if: (a) an adoption, by a person who is habitually resident in Australia, of a child who is

habitually resident in a Convention country is granted in that country; and (b) an adoption compliance certificate issued in that country is in force for the adoption.

(2) Subject to regulation 22, the adoption is recognised and effective, for the laws of the Commonwealth and each State, on and from the day the certificate becomes effective.

Note This regulation does not necessarily apply to all States — see regulation 34.


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FINANCIAL MATTERS: PART VII FLA – Spouse Maintenance and Property Settlements for Married

Couples

Spousal Maintenance (Ch 9) – Seminar 7

Legislation – Spousal Maintenance

Part VIII—Property, spousal maintenance and maintenance agreements

71A This Part does not apply to certain matters covered by binding financial agreements

(1) This Part does not apply to: (a) financial matters to which a financial agreement that is binding on the parties to

the agreement applies; or (b) financial resources to which a financial agreement that is binding on the parties

to the agreement applies.

(2) Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial cause in subsection 4(1).

72 Right of spouse to maintenance

(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).

(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

74 Power of court in spousal maintenance proceedings

(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

(2) If:


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(a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

(b) either of the following subparagraphs apply to a party to the marriage: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before the proceedings are finally

determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the

proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected

by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings.

(3) If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

(4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.

(5) If: (a) an application is made for an order under this section in proceedings between

the parties to a marriage with respect to the maintenance of a party to the marriage; and

(b) either of the following subparagraphs apply to a party to the marriage (the debtor party):

(i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or

(ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and

(c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and

(d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings;

the court must join the trustee of the agreement as a party to the proceedings.

(6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.

(7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.

(8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:

(a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application.


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75 Matters to be taken into consideration in relation to spousal maintenance

(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

(2) The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the

physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or

benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country;

or (ii) any superannuation fund or scheme, whether the fund or scheme was

established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party;

and (g) where the parties have separated or divorced, a standard of living that in all the

circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance

is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party’s role as a parent; and

(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under

Part VIIIAB in relation to: (i) a party to the marriage; or


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(ii) a person who is a party to a de facto relationship with a party to the marriage; or

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

(4) In this section:

party means a party to the marriage concerned.

77 Urgent spousal maintenance cases

Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.


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Jurisdiction and types of maintenance orders - An application for spouse maintenance is a relevant ‘matrimonial cause’ - A spouse may take maintenance proceedings against the other even though they are not

separated – but rare - If a marriage has been dissolved, an application for spouse maintenance or for a property order

must be made within 12 months of the decree, unless leave is granted to apply out of time - Two types of ‘temporary’ orders

o S 77 – urgent maintenance o S 80(1)(h) – an order for maintenance of limited duration to operate until further or

disposed of proceedings

Entitlement to spouse maintenance - An award for spouse maintenance under the FLA requires:

o Threshold finding under s 72; and then o Exercise its power under s 74

- At both stages need to consider the s 75(2) factors

o Threshold: Section 72 - Must meet section 72 before power in section 74 can be exercised - There must be a need and an ability to pay - In Mitchell and Mitchell it was stated that the threshold of s 72(1) is whether the applicant is

unable to support herself or himself adequately by reason of the matters set out in paras (a),(b) and (c) but having regard to any relevant matter referred to in s 75(2).

- The approach is one of reasonableness in all the circumstances - See p464 for different circumstances

72 Right of spouse to maintenance

(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).

(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.


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o The court’s power under s 74 and s 75(2) factors - Once the threshold in s 72(1) has been crossed, s 74(1) of FLA empowers court to make ‘such

order as it considers proper for the provision of spouse maintenance’ - In doing so, the court is required to take account only of the list of factors set out in s 75(2) - Despite being an exhaustive list, the court’s discretion remains wide - Need to look at facts of individual case

Section 75(2) Factors:

The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the


(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and






and (g) where the parties have separated or divorced, a standard of living that in all the

circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance


(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and


(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and



(n) the terms of any order made or proposed to be made under section 79 in relation to:


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(i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under

Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the

marriage; or (iii) the property of a person covered by subparagraph (i) and of a person

covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by

subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to

the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties to the marriage; and

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

o Question 1: Spousal maintenance

- Pt VIII FLA deals with Property Settlements and Spousal Maintenance (“SM”) for married people.

- SM is: “financial support provided by one spouse to the other for his or her financial upkeep” - S.72 FLA - party is liable to maintain other party to the extent that first party is reasonably able

to do so and other party is unable to do so adequately for the reasons set out in s72 (a), (b) and (c).

- Must be a need and a capacity to pay. - This is the ‘threshold test’. - S.72 matters are “threshold” matters – if not there, no right to SM (Tyson (1993); Bevan(1993)) [

9.21]. - If s72 met, court can make such order it thinks “proper” (s.74) and can ONLY use the 75(2)

factors in deciding appropriate order/amount. Look at 75(2) factors. - The threshold issue is decided not by objective standard but by applying 75(2) factors to case

(Mitchell (1995)) [9.22]. - But is it enough if a party can earn something to support themselves?

o Question 2 – Significance of Mitchell’s case - See [9.24] – Court had to look at the extent to which it should take notice of the realities of

employment market and disparity in capacity for employment. - W was middle aged unskilled woman unlikely to get reasonable paying work. At trial, W got

90% of property but no SM. Wife out of workforce many years, even with property settlement can’t support. H a barrister, high income. Ct ordered SM – said that court must recognise impact of long absence from workforce on wife’s capacity for employment.

- Gould (1996) followed Mitchell. W. not worked 16 years. Wife entitled to SM.

o Question 3: Spousal Maintenance and s. 75(2) FLA


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- 75(2) important provision for both SM and property matters but different role for the factors in Property cf spousal maintenance.

- For SM, 75(2) is used to ensure adequate periodic living expenses. In property settlement under s. 79(4) FLA is relevant to adjustment to capital for capital needs (have a look at s. 79(4)(e)).

- In SM matters, s.75(2) is relevant to both “threshold” and later for deciding what is “proper” under s. 74.

o Spousal maintenance – the process

- In the Marriage of Bevan (1995), FC of FCA said - maintenance is not required to be at “subsistence level”. Set out 4 steps:

§ threshold finding s.72 § consider ss74 and 75(2) § pre sep. standard of living not automatically awarded even if payer can

afford. § Discretion - what is “reasonable in the circumstances” s74.

- So, as part of process, court must go through 75(2) factors. - s. 75(2) Factors - 75(2)(a) Age, state of health - relevant to payer and payee – “need” and “capacity to pay”

(Richards (1979) – H. in well paid job but aged 62 – effect on future capacity to pay) Older payer, greater need – difficulty of older people getting work. Health – applies to mental and physical (Bevan (1995)

- 75(2)(b) Income, property, financial resources ... capacity for gainful employment - No order if applicant has sufficient income to meet needs (Corner (1978)). - If, after 75(2) factors are looked at, more than enough for needs, threshold (s.72) not

satisfied…no order. (Rowan (1977)) - 75(2)(b) very relevant in Mitchell (1995) both in deciding threshold question and the appropriate

amount – W out of workforce over 20 years, husband high income. - 75(2)( c) Care and control of child - Relevant to s.72 re why unable to support self. Relevant to 75(2) in terms of appropriate

amount. Note child of marriage ONLY. Child other than child of marriage covered by 75(2)(e). Child must be in care/control at time of hearing.

- 75(2) (d) & (e) support of self and others - Note words “duty” and “necessary” - These provisions seen as particularly relevant to PAYERS esp. where payer also supporting

new spouse/partner (Stein (2000) (Soblusky (1976) – weight/effect depends on each case. No general rule that first spouse has priority.

- 75(2)(f) pension allowance etc - Note 75(3) – govt income tested pension disregarded. 75(2)(f) relates to other sort of allowance

(eg Private pension fund). - · 75(2)(g) standard of living –“reasonable” - subjective – reasonable in particular circumstances (Bevan, Mitchell). Not subsistence but not

lavish (Wilson (1989)). - 75(2)(h) increase earning capacity by supporting training /study - consideration of benefit to be gained and, if appropriate, actual capacity even if not working

(McMahon (1976). - 75(2)(j) and (k) – contribution and effect of long marriage on income earning capacity - long marriage, out of workforce, erosion of skills (Mitchell (1995)).


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- 75(2) (l) Protection re parenting role - Nixon (1992), Heeks (1980). - 75(2) (m) Fin. circs if cohabiting with another - Applies to both parties. Narrow view– Grabar (1976) – like H. and W. Wider view Roberts

(1977) - living in same premises and providing mutual help. Marriage of F (1982) words of provision suggest real issue is the financial arrangements or potential for those.

- 75(2)(n) Orders under s.79 - Mitchell (1995) and Gould (1996) don’t have to “use up” all property under s. 79 before get SM.

S. 79 order wont prevent SM order but settlement might be such as to mean no SM entitlement Clauson (1995).

- 75(2)(o) – other fact/circumstance - “conduct” cases – Kowaliw (1981) – destruction of property – effect of violence/abuse on

earning capacity - Relevant also to s.79 contribution.

Spouse maintenance orders

80 General powers of court

(1) The court, in exercising its powers under this Part, may do any or all of the following: (a) order payment of a lump sum, whether in one amount or by instalments; (b) order payment of a weekly, monthly, yearly or other periodic sum; (ba) order that a specified transfer or settlement of property be made by way of

maintenance for a party to a marriage; (c) order that payment of any sum ordered to be paid be wholly or partly secured in

such manner as the court directs; (d) order that any necessary deed or instrument be executed and that such

documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(e) appoint or remove trustees; (f) order that payments be made direct to a party to the marriage, to a trustee to be

appointed or into court or to a public authority for the benefit of a party to the marriage;

(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

(i) impose terms and conditions; (j) make an order by consent; (k) make any other order (whether or not of the same nature as those mentioned in

the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

- [9.36] s.80 power – court not confined – Vautin (1998) Needs to regard s.81 “clean break “

principle. Clauson (1995) – Full Court suggested that periodic payment preferable unless special circumstances making lump sum appropriate – reluctance to engage in predicting future – need for genuine concern re payer paying.


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Variation - [9.37] Variation: s.83 - sufficient change in circs, change in cost of living to extent to justify

change where 12 months elapsed since order, if consent order- amount not adequate, failure to disclose/false evidence.

- Cease: S. 82 – Death of either party (except pre 1983 orders), remarriage of payee (unless “special circumstances”).

82 Cessation of spousal maintenance orders

(1) An order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of the party.

(2) Subject to subsection (3), an order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of the person liable to make payments under the order.

(3) Subsection (2) does not apply in relation to an order made before the date of commencement of section 38 of the Family Law Amendment Act 1983 if the order is expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the time of the death of the person liable to make payments under the order and, in that case, the order is binding upon the legal personal representative of the deceased person.

(4) An order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders.

(6) Where a re-marriage referred to in subsection (4) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the re-marriage.

(7) Any moneys paid in respect of a period after the event referred to in subsection (4) may be recovered in a court having jurisdiction under this Act.

(8) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.

83 Modification of spousal maintenance orders

(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:

(a) made by the court; or (b) made by another court and registered in the first-mentioned court in accordance

with the applicable Rules of Court; the court may, subject to section 111AA:

(c) discharge the order if there is any just cause for so doing; (d) suspend its operation wholly or in part and either until further order or until a fixed

time or the happening of some future event; (e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (2), vary the order so as to increase or decrease any

amount ordered to be paid or in any other manner.

(1A) The court’s jurisdiction under subsection (1) may be exercised:


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(a) in any case—in proceedings with respect to the maintenance of a party to the marriage; or

(b) if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or

(c) if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.

(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

(a) that, since the order was made or last varied: (i) the circumstances of a person for whose benefit the order was made have

so changed (including the person entering into a stable and continuing de facto relationship);

(ii) the circumstances of the person liable to make payments under the order have so changed; or

(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

as to justify its so doing; (b) that, since the order was made, or last varied, the cost of living has changed to

such an extent as to justify its so doing; (ba) in a case where the order was made by consent—that the amount ordered to be

paid is not proper or adequate; (c) that material facts were withheld from the court that made the order or from a

court that varied the order or material evidence previously given before such a court was false.

(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part.

(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:

(a) the other party; or (b) any other person for the benefit of the other party.

(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned


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order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.

(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.

(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

o Question 4 – Why do authors suggest SM is “relatively uncommon” ?

- Rarely sought despite recent decisions of court indicating court prepared to award. - “At odds with s. 81 “clean break” re property. - Child support . - Desire for independence rather thann ongoing reliance. - Uncommon despite the recognition of financial hardship to women particularly after long

marriages. - What reform do they suggest? (see 9.43-9.44) - See pages 478 - 482


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Property Distribution on the Breakdown of Marriage - (Ch 12)

Defining Matrimonial Property

- Under the FLA – court has power to declare and alter the interests of parties to a marriage in ‘property’. The Act defines the term in section 4(1):

property means: (a) in relation to the parties to a marriage or either of them—means property to

which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or

(b) in relation to the parties to a de facto relationship or either of them—means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.

- Cases have held the following to be property: o A claim in proprietary estoppel o Funds held on fixed trust or by the Public Trustee as administrator for disabled persons o Any surplus or property after payment of creditors and administration of a bankrupt’s

estate o An option to purchase property o An interest in a partnership

- The following are not property: o Tortuous claims for personal injuries o A fund held for an invalid at the trustee’s absolute discretion o Future superannuation entitlements

- In situations where a party has effective control of a company or trust then the quantum of the financial resource can equal the whole of the company or trust’s assets rather then the benefit derived therefrom. In such cases, the legal institution may be no more then the ‘alter ego’ of the individual.

- See p 603 re family companies

Declaration of Property Interests - Section 78 FLA gives the court power to declare existing rights in property, and to make

consequential orders giving effect to such declaration - In practice, section 78 is rarely used, most parties use the wider powers of s 79


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Property Distribution on the Breakdown of Marriage: Adjustment Issues (Ch 13)

Property under the FLA - Property Settlement comes under Part VIII FLA. Part VIIIAA Third Party Interests, VIIIA

Financial Agreements and VIIIB Superannuation. - Court has broad power under s. 79 FLA to order property settlement between parties, based on

a number of factors re “contribution” and “future needs”. - Does not have to be as part of divorce – separate to divorce proceedings but 12mth limit after

divorce unless leave (s. 44(3) FLA). - Was linked to “matrimonial cause” – ie could only deal with propery of married couples. - Over last few years all states (except WA and SA) referred their powers re defcato (including

same sex) to Commonwealth - Family Law (De Facto Property and Other Financial Measures) Amendment Act, 2008, came

into effect 1 March, 2009. - New Part VIIIAB – Financial Matters Relating to De Facto Relationships. Will look at in Week 9.

o Question 5 – Community v Separate property - “community property” – automatic presumption of 50/50 ownership and split of all property

acquired post marriage. - “separate property” – Looks at what each owns individually and together both before during and

after marriage. - FLA property regime is a separate property regime. - S 4(1) FLA – defined and interpreted widely. Note it is the property of BOTH or EITHER. Duff

(1977) Court looks at property at date of hearing. PI or workers comp award of one party even post sep. is relevant…the issue then becomes one of contribution. Best and Best (1993) H’s interest in law firm partnership seen as property.

- Super NOW property (ss4(1) and 90MC FLA) Part VIIIB inserted in FLA Dec. 2002. Previously seen as resource – had caused numerous headaches as to how to treat (Wunderwald (1992) , West and Green).

o Question 6: What is Property Under FLA ? - What is NOT property? - A “financial resource” (ie a contingent interest but more than a mere hope or expectancy (Crapp

(1979) and Kelly (No. 2) (1979).. - Possible inheritance – not generally property or resource (see White and Tulloch v White (1995)

– only in limited circumstances – eg will contents known, testator not likely to change will, close to death) .

- When will company or trust be “property”? Test is one of control (Kennon v Spry (2008)). o Where Does FCA get power?

- [12.28] S. 78 gives Court power to declare existing property rights – who owns what? - s.79 gives power to make orders altering property rights but application must come under

“matrimonial cause”. - Dispute must arise out of matrimonial relationship to come under part VIII. Only married

persons who also satisfy s.39(4) requirements re citizenship /domicile can bring property claim. - S. 81 – ‘clean break’ principle – Court should try to finalise in so far as is possible [13.3].


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Property Settlement: The Process - See four steps [13.8] confirmed in Hickey (2003).

1. Identify and value the prop and resources.

2. Assess contributions under s. 79(4)(a)-(c) [past].

3. Consider factors under s. 79(4)(d)-(g) including, as required by 79(4)(e),

such of the s. 75(2) factors [‘future needs’] as are relevant.

4. Make orders that are ‘just and equitable’ (s. 79(2)).

STEP 1: Identify and Value the Property and Resources - The pool of property available for distribution between husband and wife under s 79 of the FLA

is not limited by any concept of ‘matrimonial assets’ - The pool encompasses the parties joint and several assets - The appropriate date for valuation of the parties assets is that of the trial and not the separation

(Warne v Warne) – however, the judge has discretion to use a different date - First step: [13.9] What property is there? Who owns/has what? And value. (Duff (1977)) How or

when acquired irrelevant to this initial stage. Broad approach taken by court. - Look at property and its value as at date of hearing, not separation. Even property acquired

after separation (Omacini (2005) – and see commentary [13.09]). - Marriage of Omacini

o The starting point in proceedings under s 79…the property and financial resources of the parties are valued as at the date of the trial…we accept that in a particular case there may be reasons which justify the selection by the trial judge of another date and in some cases that may be the date of separation of the parties

- Property Contributions - Issue then becomes assessment of contrib.(s.79(4)) and adjustment (if any) for 75(2) factors. - The court must evaluate the parties respective contributions, both financial and non-financial, to

any property and to the general welfare of the family - Note relevant value of “pool” of assets is net value – liabilities to be taken into account. Easy

where secured, but court can take into a/c unsecured loans (Biltoft (1995)) and can decide to disregard some debts (eg alleged family “loans” – not enforced see [13.09 at p. 616]).

- Valuation needs to be supported by evidence/ assessment of evidence. Court can’t “split the difference” [13.09] p. 616 (Phillips (2002),Lenehan (1987)).

- In practice, if parties cannot agree, single expert will be appointed now. - Tax and valuation – only impact if likely to be incurred to give effect to orders (eg CGT in Rosati

(1998)). - Consequences of non-disclosure (Weir (1993) – order to pay share of $ not disclosed even if $

now gone. Black and Kellner (1992) Costs of investigation). - In financial proceedings, FLR’s require parties to make “full and frank disclosure” r.13.04. - In the Marriage of Morrison (1995) – obligation crucial – may result in court drawing adverse

inferences against non disclosing party


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- Non-financial contributions may also be considered - Third Party control of property - Historically, difficulties where property held by 3rd party eg Family Trust or Co. – lack of

jurisdiction: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337. Wont order unless third party was “alter ego” of party or “sham” (ie real ownership/control rests with party (Re Dovey Ex Parte Ross (1976)).

- Made things difficult in cases of family companies and trusts. - With trusts, Court looked for who had real control – Ashton (1986) case and Shaw (1989). - Part VIIIAA now allows orders to be made against third parties (and third parties such as

creditors to get orders). - See comments in text at [12.26] – [12.28]. Part VIIIAA still requires a degree of “control” by a

party to be shown before court will go behind the trust/Co.( Kennon v Spry (2008)). - VIIIAA provides possible way around the Ascot rule. Will look at in detail in week 8 as well as

issue re Bankruptcy. Third party interests/bankruptcy come into step 1.

Step 2: Assessing Contribution - The court has the discretion to use a global approach (assess overall contributions to the

totality of the assets) or asset by asset approach (evaluate particular contributions to particular assets – wide discretion as to which approach to use (Norbis 1986)

- The global approach is more convenient – however, in cases where financial contributions predominate and/or the marriage was short or the parties dealt with their respective assets separately, the ‘asset by asset approach’ may be more appropriate

- If the parties cohabited before marrying, their premarital contributions are relevant under s 79(4)(a),(b),(c).

- Contributions made after separation should also be considered: o Wife’s payment of rent for accommodation after separation o Wife’s care of children and husband’s use of her share in property o Mortgage and loan repayments o Lottery win

- Global: common/convenient – overall contrib. - Short marriage or financial contrib predominates (particularly in relation to a large asset) then

asset by asset approach may be more appropriate (Lenehan (1987)) [13.11]. - Pre-marriage, during and post sep. contrib all relevant (eg Lalor (1989) – post sep payment of

rent; Farmer v Bramley (2000) - post sep. lottery win; Gould (1995) – mortgage/loan payment post sep). Comes down to how much each contributed to the pool or asset [13.11-13.12].

Ø 79(4)(a) Financial contributions – direct and indirect:

o Direct – eg. purchase price of property, mortgage payments, payments for repairs/renovations, expenditure by one party on property owned by the other (McDougall (1976).)

o Indirect – eg. assist in business in unpaid capacity. - Court has generally avoided strict approach where long marriage . - Erosion of significance of initial fin. Contrib. where a long marriage (Crawford (1979), Money

(1994), Lee Steere (1985), Bremner (1995) – 360K contrib. Of little significance in 22 yr. Marriage , both parties worked equally hard, two kids raised – 50/50.). See comments p. 618 re Pierce (1998) – confirmed in Brown (2005).


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- Conversely, short marriage = initial contrib. More significant. Quinn (1979) and financial contrib more significant esp. if no kids. Ø Direct fin contrib 79(4)(a): Windfalls and gifts

- Zyk (1995) lottery ticket purchased from general household funds pre separation - joint contrib. - Gifts – direct fin. contrib. but by whom? Gosper (1987): contribution may be seen as fr. spouse

whose family gave gift. - Inheritances not excluded – but again, issue is contribution: Bonnici (1991). Same re lump sum

compensation: Zubcic (1995). - Indirect financial contribution: W contrib. by assistance of H. in business -Dawes (1989).

Ø 79(4)(b) Non financial Contributions – direct and indirect: o eg Direct - labour for home renovation. Indirect - supporting partner through the

renovations or studies (if not already a contrib. under (a) or (c)). Some overlap. o Whitely (1993): W.’s non financial contirib, direct and indirect assisting/supporting

artist H and being his “inspiration” & critic [13.13]. o Zubcic (1995) –W nursed H after accident – seen as indirect non-fin contrib as it

helped H conserve (ie not have to spend) damages $$.

Ø 79(4)( c) - homemaker /parent - Very significant (Rolfe (1979), Waters & Jurek (1995)) – not token but substantial recognition

needed), esp. long marriages Ferraro (1993). - W.’s domestic role “freeing up” H. to work can be both indirect fin. contrib. under (a) and a

“homemaker” contrib. - Note Farmer and Bramley (2000) [13.18] – $5mil lottery win post sep by H – represented

effective total property. W given share on basis of home maker contrib even though the property didn’t exist at time the contrib made.

- [13.14] cases like Wardman and Hudson (1978) show that view long held that party who stays at home and does domestic duties seen as contributing equally to breadwinner.

- But how to value the domestic/homemaker contrib v fin contrib? [13.15]. No presumption of 50/50 starting point (Mallet (1984)).

o Each case must be decided on its own facts by the court actually evaluating the contributions of each party

- Note comments at [13.16] - trend to putting greater weight on homemaker contrib. But no clear principles, discretionary.

- Ferraro recognised value BUT W still only got 37.5% of assets because of H’s ‘special contrib’ - [13.17] McLay (1996) – highlights wide discretion of court but suggests that in most cases, the

contribution should be seen as equal unless significant evidence showing otherwise. - Figgins (2002) – Ct again rejected equality as starting point – danger that it will also be

interpreted as the end point.

Ø Question 9: Special Contribution - “special skill” cases [13.19]. Ferraro (1993)- H argued his special business talent/skills meant

his contrib should be seen as greater than wife’s homemaker contrib. See comments re McLay (1996) and JEL and DDF (2000) at [13.20].

- JEL and DDF (2000): long marriage – H’s special skill in mineral exploration, stock exchange – outweighed W’s contrib as homemaker. See the list of principles p. 630-1. Limited circumstances.


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- Figgins (2002): short marriage, trial judge gave inheritance – “special” treatment – Full Ct said “no” - more like windfall. Questioned notion of ‘special contribution’ itself – shouldn’t engage in assessment of quality of contributions.

Ø Q. 9 : Negative Contribution - Conduct such as over-capitalisation, wastage of assets could be viewed as NEGATIVE

contribution [13.22]: Antmann (1980) - Kowaliw (1981) – H recklessly lost money. - Violence may be taken into account where clear evidence that effected property or spouses’

contribution (Kennon (1997)). Violence made victims contrib. greater/more arduous, impacted on ability to fin, contrib – more often relevant as s. 75(2) factor.

Ø 79(4)(d ) Effect of order on earning capacity.

- Relevant to cases where party derives livelihood from asset – farm, business. Lee Steere (1985) see [13.27].

STEP 3 - Adjustment for ‘Future Needs’ - S. 79(4)(e): adjust contrib share by applying relevant s.75(2) (future needs) factors – separate

exercise to maintenance – adjusting capital on basis of future needs. Note 75(2) factors only examined if appropriate. That is if no needs under s.75(2) split will be based on contribution only.

- How 75(2) is applied – see cases [13.28- 13.30]. Court looks to see whether the % share on contrib should be adjusted for relevant future needs.

- Question 10 – relevance of kids - Relevant to s. 79(4) (c) contribution - Relevant then to future needs under s. 75(2)….which 75(2) factors relevant to kids? - Other factors - S.79(4) (f) : effect of any other order. - S.79(4)(g): provision of child support – allowance to take into account payment/non-

payment.

STEP 4 – orders must be “just and equitable” – s. 79(2) - D and D (2006) and McCulough (2006) – is the mix of assets in the split fair? (ie is one party

stuck with mostly non-liquid assets – can’t rebuild life). - Reform? - Reform suggestions? prescriptive statutory framework (eg 50/50 presumption) v discretionary

model argument. - current emphasis on mediation and settlement – advantages re costs but concerns re inequality

of bargaining power. - does “no fault” system adequately take into account impact of violence?


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The Court’s 4 step process as to how property should be split (Pastrikos – Hickey)

1. identify and value the property and resources 2. assess contributions under s.79(4)(a)-(c) (Past) 3. consider factors under s.79(4)(d) – (g) and as required by s.79(4)(e)

relevant matters referred to in s75(2) 4. make orders that are ‘just and equitable’ (s.79(2))

§ Step 1: ID and value assets a) Id assets (Pool 1) Ø Gifts from parents: Not items of the property pool- they will be factored in as financial contributions at step 3. Ø Hidden assets: Parties have a duty to make a full and frank disclosure as to their property –

Oriolo v Oriolo/ (r 13.04). Effect of Non-Disclosure/ court can:

a) Make estimate as to amount not disclosed –Weir b) Award costs – Suiker c) may be inferred and added back as a notional asset (Chang) d) draw adverse inferences re. value or existence of assets - Morrison

Ø Shares -Treated as property -The relevant date for the valuation is the date of trial (Duff) -Consider the real value of the shares (Mallett). -It is not the business itself by the shareholding in it (Gamer). -Market price on the stock exchange can be helpful – Spencer v The Commonwealth Ø Inheritance- received Included in property pool: Bonicci Ø Potential inheritance *Not property, except in limited circumstances: White v Tulloch - testator unable to change will & soon to die * In Kelly (No. 2) (1979): a mere hope or expectancy of receiving a benefit will not be enough if there is no certainty that it will be realised. * although it may still be relevant under s 75(2)(o) (‘any other fact or circumstance’) Ø Compensation Personal injury payouts form part of asset pool: Zubcic Ø Superannuation (Pool 2) - will be regarded as property 90MC The ‘two pools’ approach: *In the Marriage of Coghlan (2005): * The majority preferred that superannuation be listed separately from other property – therefore this is examined later b) Valuation: Ø Must be based on evidence: Lenehan


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Ø Rule 15.5 encourages the parties to appoint a single expert by requiring the court’s permission before they can tender a report or adduce evidence from their own experts.

Ø Court will look at nett value of total property – assets minus liabilities Liabilities: Ø Loans / Mortgages The court will treat this like any other liability. Unsecured and secured debts will be taken into account: Biltoft Liabilities that vague or uncertain: Biltoft, the Family Court held that such liabilities that are unlikely to be enforced may be ignored. Ø Family Loans Not enforced: Petersens Pool 1 = § Step 2: Assessing the parties’ contributions s.79(4)(a)-(c) - Court may take a global or asset by asset approach * Global approach involves the court determining the overall contribution made by each party to their past and present property as a whole. (MORE COMMON following Norbis v Norbis 1986) - long marriage - given they started on pretty much equal footing and without instructions as to whether X’s super is largely made up of anything other than employer contributions, a global approach is likely * Asset-by-asset approach looks at contributions made by each party to specific items of property. (MORE LIKELY WHEN SHORT MARRIAGE – In the Marriage of McMahon 1995). *No starting point of equal sharing: -Mallet: no presumption regarding 50/50 even where long marriage. The factors that are to be taken into account, as to the ‘acquisition, conservation or improvement’ to anything in the joint property pool, as set out in s 79(4), include:

a) Financial contributions (s. 79(4)(a))

Financial assistance from parents Ø A Gift of money to help X out after separation: Although this was given to X after separating

from Z she still needs to disclose this as the relevant date is that of the hearing Duff. The court will treat this gift of cash as a contribution by X, as it was intended to ‘help her out’ and not as a joint gift.

Ø Gift of money from parents during marriage: As this were gifts to the parties jointly, ‘to help them out’ it will be considered a contribution by both parties equally (Kessey).i

Ø Monetary Gift on marriage from X’s parents: Thi is likely to be seen as a direct financial contribution from X unless Z can show that it was intended as a joint gift and therefore joint contribution: Gosper

HOWEVER because long marriage, in any case, significance of early imbalance regarding contribution eroded overtime by the party’s contributions over the years: Crawford, Money, Lee Steere, Bremner


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Income of both parties Ø Z could argue that his contribution is larger in this regard Damages awards for personal injury Ø Compensation: The whole amount will be treated as a contribution by X, as she was the party

who received the award. No contribution by Mark (Zubcic).ii Windfalls Ø Lottery: Given that it was from the money that would otherwise have gone into the family, it is

likely to be treated as a joint contribution/ Where the marriage involves each contributing income and/or domestic services towards the marriage, the purchase of the ticket (pre sep.) is likely to be regarded as a purchase from joint funds, therefore joint contribution (Zyk).

Ø Lottery winnings during marriage may be considered as a contribution of one or both of the parties, depending on the circumstances (Farmer v Bramley 2000).

Inheritance received * An inheritance is more likely to be treated as the property/ contribution of the beneficiary spouse if it is received late in the marriage and if there is plenty of other property to divide (Bonnici) * Contributions made during cohabitation and prior to marriage are relevant under s 79(4). * Subject to erosion principle – an initial contribution of property can be eroded by the offsetting contribution of the other spouse during the course of the marriage (In the marriage of Money 1994). *Erosion of significance of initial contrib. where a long marriage (Crawford 1979, Money 1994, Lee Steere 1985). * Pierce (1998) represents the middle ground between the erosion approach and the balancing approach, which involves the judge considering all the parties’ contributions whenever made and giving them whatever weight the judge thinks appropriate. * Bremner (1995) – 360K contribution of little significance in 22yr marriage, both parties worked equally hard, two kids raised – 50/50. *Conversely short marriage = initial contribution more significant (Quinn 1979) and financial contribution more significant especially if no kids. * Indirect financial contribution: wife’s contrib. by assistance of H in business (Dawes 1989). *Property acquired after separation: * Two main approaches: 1. ‘Nexus’ approach which requires establishment of a connection between property acquired by the owner spouse after separation and contributions made by the non-owner spouse (e.g. wife continuing to be primary caregiver for kids). 2. ‘Balancing’ approach – the court’s task is to evaluate all of the contributions from the date of the hearing and give such weight to such contributions as the court thinks is appropriate in the circumstances (Farmer v Bramley 2000).

b) Non-financial contributions (s. 79(4)(b)) Ø Direct: Renovations:

c) Contributions as a homemaker and parent (s79(4)(c) Ø The home-making role in money making: The court will consider X’s performance of all the non-

financial obligations of the marriage, eg. staying at home with the kids, allowing Mark to give 100% of his energy, to the money making and property acquisition effort.


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Ø X’s contribution will be given substantial recognition, (not token : Rolfe/ Jurek) due to duration of marriage (Ferraro).

Ø The court may give home-maker contributions as much weight as those of Z. Ø However, there is no assumption of equality as a starting point and home-maker contributions will

be judged ‘in their own sphere’ (Mallet). Ø Z may try and argue handy-man type contributions, although it is unlikely that the court will

consider this as Mark worked long hours which meant that he did not have the time to contribute as such.

* Children who are not children of the marriage can be recognised at step 3 under s 75(2)(o). * FCA’s approach is not to give woman any extra credit for the ‘double shift’ i.e. working part-time while still looking after the kids (Bremner 1994) *The court does not view a woman’s homemaker contribution as being diminished by having outside help e.g. cleaner (In the Marriage of Kennon 1997). Special skill/ contribution: * must be unique/special: Whitely * In the Marriage of Whiteley – contributions assessed 70% (his) and 30% (hers). * Ferraro – just doing your job well will not attract the doctrine. *Court in Ferraro noted that cases involving high assets view business acumen as a ‘special skill’ and saw this as the explanation for decisions awarding more than 50% of the property (usually 70%) to husbands with substantial assets. *JDL and DDF: special skill in mineral exploration X could argue that he/she made a special contribution via the skills/ aptitude he/she showed re his/her work *SL and EHL: Considered that the husband’s property investment activities did not demonstrate special skill, and emphasised the role that luck and favourable business conditions had played in his success. The court may also consider negative contributions * Conduct such as over-capitalisation and violence can be viewed as NEGATIVE contribution. * Violence may be taken into account where clear evidence that effected property or spouses’ contribution (Kennon 1997). Ø Issue of Jane smoking cannabis: Mark may try and factor in substance abuse by Jane. But it is

unlikely that the court will apply this as (1) it did not reduce Mark’s capacity to make a full contribution to the marriage and (2) this is not an ‘exceptional case’ (Kennon).iii

The court will then balance financial and non-financial contributions Ø At this stage a preliminary percentage of the property may be made. On the basis of the contributions assessment only, it is most likely that the court will allocate a 50 – 50 split as Jane & Mark had a long marriage where they started with little property and then worked together to increase wealth, raise a family and support each other.


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§ Step 3: The section 79(4)(d) – (g) & 75(2) future needs and resources factors *Section 79(4)(d) effect of order on earning capacity – relevant to cases where party derives livelihood from asset – farm, business: Lee Steere 1985. * Section 79(4)(e): 75(2) factors § X’s age, state of health (s.75(2)(a)): The likely duration of ill-health & its disabling effect in

regards to capacity to earn & maintain lifestyle will be influential (Guthrie).iv § Income, capacity to earn, property & financial resources (s.75(2)(b)): Jane will soon be

earning approx $62K gross/yr. Mark’s ‘very good’ salary is going to decrease by approx. 1/3. If there is a major disparity, the court may find it just & equitable to take this into account (Horsley). - capacity for gainful employment? Mitchells case: court takes into consideration impact on long term marriage on woman’s ability to get back into workforce

§ Care and control of the children of the marriage (s.75(2)(c)): The court recognises that a parent may require more resources to provide a home for the children than a share of the property pool based on contributions (Pastrikos). If Jane cares for children, the cost of child-raising will be used against Mark, in addition to child support payments (Clauson).v

§ S. 75(2)(j)-(k) – contribution and effect of long marriage on income earning capacity - out of workforce for x years? - Erosion of skills: Mitchell

§ S75(2)(l) protection re. parenting role – relevant to who remains in that role § X’s co-habitation with B (s.75(2)(m)): Z may argue that this be taken into account in

formulating a picture of their likely future financial position. However, X may argue that A is only 25 &, as a pilates instructor, not on a good income.

§ S75(2)(o) – other relevant circ’s – eg violence – Kennon domestic violence or other poor conduct may in exceptional circ’s e

taken into account in the interests of justice § s75(2)(na) – child support

* Section 79(4)(f): effect of any other order. * Section 79(4)(g): provision of child support – allowance to take into account payment/non-payment. After considering Jane’s long-term financial position, the court may allocate an extra 15- 20% to Jane, if she will continue to have the responsibility to care for the children. However, it is possible that this range be reduced to 5 – 10% because of (1) the current trend towards 50/50 residential arrangements for children & (2) Mark’s reduced future earning capacity. o Spouse Maintenance: Property First – Maintenance Second: Where both maintenance and property orders are sought in the same case, property is to be dealt with first, then maintenance (In the Marriage of Taylor). § Under s 72, a party to a marriage ‘is liable to maintain the other party, to the extent’ that the

former is ‘reasonably able to do so’ and where the later party is ‘unable to support’ him/herself either because: b) they are taking care and control of a child of that marriage who is under 18 years; c) they, due to mental/physical incapacity or age, cannot gain full employment; ir d) for any other adequate reason.


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o Here the court will use s75(2) factors to assess (1) ability of Jane to support herself ‘adequately’ & (2) whether Mark has the capacity to help support Jane àshort term. Mark will argue that (1) the children are at school allowing Jane to continue to work; (2) soon she will be earning a good salary + inheritance; (3) his state of health means that his earning will decrease by 1/3 & he does not have the ability to pay. But, even though it may be argued that Jane will be living in comfortable circumstances, it will still be considerably less comfortable than before separation, therefore Jane is still eligible for spouse maintenance.vi As Jane wants to ‘resolve things quickly & get on with life’ she may want to pursue s81, the ‘clean break’ principle where the court makes a lump sum order & property decisions final. o – while retraining takes place o Until child begins school and parent can go back to work Look at additional info – if needed. § Step 4: Testing for justice and equity overall The court will examine the results of steps 1 to 3, and the consequences of the various orders that might potentially be made, to ensure overall fairness in the light of all the circumstances. D and D): Insufficient weight had been given to the s 75(2) factors with respect to the wife; that is the wife’s requirement to provide accommodation for the child where the husband was in a position to assist in the form of capital. It can be seen that adjustments are made in favour of the more economically disadvantaged spouse. o Superannuation (s.79 & Div.3 of Part VIIIB) – The court’s 4 step process –

POOL 2 1) Valuation (as per FL (Super.) Reg.s 2001): Reg.31(2)- value assigned in member info statement;

Reg.28 – Interest formula.vii 2) Assessment of contributions to Mark’s super: Jane may claim a non-financial contribution to the welfare of the family, as her domestic contribution, for many yrs, allowed Mark to not only earn a living but accrue super as a ‘nest-egg for their joint future’ (Hauff).viii 3) Future needs and resources: Jane may receive a share based on the care of the children. 4) The ‘just & equitable’ test If Jane wants to retain the house, which has a net value of $450K approx 70% of net assets, it is unlikely that she will receive part of Mark’s super (Jane has an equal amount in future inheritance + her own super). Mark may try and argue that such split is still unfair overall. It is unlikely that he will succeed as he still receives 30% of net assets, unlike the case of Woollas where the husband could realize no benefit from the settlement for many years.ix


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Property Distribution on the Breakdown of Marriage: Additional Issues (CH 14) – Seminar 8

Spousal Agreements - Property settlements outside of Court - FLA has always emphasised and encouraged settlement of property matters without judicial

determination (“private ordering”). - Increase in avenues for this over last two decades: consent orders, arbitration, informal

agreement, binding financial agreement (BFA). - Question 1 – ‘bargaining in the shadow of the law’ - Note caution p. 656 – negotiating settlements is really ‘bargaining in the shadow of the law’. - Property is a highly discretionary area under FLA so very hard to second guess what court

would do. - End result will largely depend on quality of advice parties get. - Not all negotiated agreements will be subjected to third party/judicial scrutiny (eg BFA’s) –

concern that a party may be ‘short-changing’ themselves (remember s. 79(2) “just and equitable” requirement).

- [14.3] Effect of emotional impact of private ordering – power imbalance, violence (real or psychological control), stress, emotion – impact on ability to objectively assess options – diminish protection that law offers.

- Discussion [14.4-14.8] re court’s traditional role protector of rights – could not oust court’s power.

o Negotiating Property settlements Consent orders [14.9] - Popular way of settling financial matters (can also be used re parenting). - Parties negotiate agreement, lawyers draw up minutes of proposed orders reflecting

agreement. - Section 80(1)(j) FLA gives the court power to make orders under Part VIII by consent. - No need for proceedings to be on foot. - Parties & lawyers sign, submit form complete with certificate of independent legal advice. - Court then approves and formally “makes” the orders – binding as if order made after hearing. - Making of order not automatic (Harris v Caladine 1991)). - While not automatic, debatable how much scrutiny applied. Issues re concern about negotiated

agreements still apply to negotiation process leading up to consent orders. - Other most popular form of negotiated agreement is the Binding Financial Agreement (BFA).

Financial Agreements under the FLA (2000-present)

Question 2 – What is a BFA? How they work? How to set aside - [14.18 -14.25] BFA is a binding financial agreement under Part VIIIA FLA. Introduced in 2000. BFA’s can be entered into in 4 time frames:

1. 90B – before marriage (pre-nuptial)

2. 90C – during marriage (before breakdown)

3. 90C – during marriage (after breakdown)

4. 90D – after divorce


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- The BFA effectively ousts court’s jurisdiction. - 90DA (inserted 2005) – if agreement deals with how prop/fin. resources are to be dealt with or

maintenance upon sep/divorce, that part of agreement will only have effect when separation declaration made [14.20].

- 90DA was inserted as part of overhaul of laws re bankruptcy and family law – designed to stop people using BFA’s to avoid tax and/or creditors – no transfer of property until actual separation.

- Note s.90F [14.22] limits re maintenance: can’t oust court’s power if person couldn’t support themselves adequately at time of agreement.

- Financial agreements can deal with spousal maintenance and child maintenance/support in addition to matrimonial property.

- Child support provisions in a financial agreement cease to have effect once an administrative assessment is made.

90G requirements; - Signed by both parties - Statement re legal advice given re rights and whether to party’s advantage. - Certificate of independent legal advice - Not terminated by court - One party has original signed agreement, the other a copy. - Court does not have to scrutinise or approve.

Question 2 – BFA’s- When set aside? s. 90K (a) Obtained by fraud (inc. non-disclosure). (aa)Entered to defeat or with reckless disregard to creditors interests. (ab) defrauding/defeating defacto claim for prop/maint (b) Void, voidable or unenforceable

(c) Change in circumstances – impracticable (d) Change re child circumstances or carer’s circumstances and hardship.

(e) Unconscionable. (f) & (g) Tries deal with ‘flagged’ super where flag can’t be removed or to ‘split’ super that can’t be split. - BFA can be held to be invalid if 90G requirements not strictly complied with. - Black and Black (2008) [14.25] - Agreement set aside as invalid because the statement in the

agreement concerning independent legal advice did not accord fully with the words used in s.90G (1)(b) concerning that advice.

Question 3 – Pre-nuptial agreements - Prior to Pt VIIIA, pre-nuptial agreements were not enforceable – only seen as evidence of what

parties may have intended at the time or evidence of what property the parties had, what they brought in.

- Now enforceable – binding provided 90G requirements met.


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Superannuation

Question 4 – How is superannuation dealt with? - A claim by the non-member spouse to some share in the superannuation benefits of the other

on the marriage breakdown may be justified on the basis both of needs and contributions - Super – used to be viewed as a resource and taken into account in 75(2) stage, or proceedings

adjourned ‘til vesting or orders made with delayed effect (see [14.27-14.30]). - Now (post December 2002), it is regarded as property – s. 4(1), s. 90MC FLA, Part VIIIB FLA - Super increasingly significant asset since compulsory employer contribution introduced 1990s,

but mostly acquired in name of husband. Male/female payout disparity. Hoped that part VIIIAB would address that [14.26].

o Two types of orders can be made - Can be split (splitting order: s. 90MT(1)) or flagged (flagging order:s. 90MU(1).) [14.33-14.34]. - Splitting order, Ct. must 1st determine value of the super interest (s.90MT(2)) and can then

order up to 100% of super entitlement to be paid to non-member spouse. Trustee bound if service complied with (90MZ(1)).

- Flagging order – flags for future payment. Can restrain T’ee from paying out (90MU(1)(a)), & require T’ee to notify Ct. when super payable (90MU(1)(b))

INSERT RELEVANT SECTIONS OF LEGISLATION

- Question 5 – super problems and Coghlan. - In Coghlan (2005), Ct said super not the same as other property - advocated a separate

treatment and adopted a “two pools” approach (see [14.32] – work out contrib & future adjustment re super separate to other property).

- Problems: o Super still not usually accessible until retirement. Might not be attractive to non-working

spouse – no ongoing contrib. – might decide to take more of asset (eg house) and forsake super. No “best interests’ of kids in property.

o Can be valuation difficulties – accumulation or defined benefit fund – will impact on order sought/made (BAR v JMR (no.2) (2005)).


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Injunctions, Third Parties and Property

Injunction - An injunction or order under section 114 of the FLA may be used to restrain one party from

disposing of assets, pending the disposal of proceedings for maintenance and/or for property division. Such an injunction may be granted under s 114(1) either as one ‘in relation to the property of a party to the marriage’ or as one relating to the ‘use of the matrimonial home’, or alternatively under s 114(3) as an ancillary remedy in aid of other substantive proceedings.

- An injunction may be used to restrain the sale of a property when a better price could be obtained.

- [14.35] – S. 114 FLA provides for a party to seek to restrain another party from doing something in the context of a property matter. This is known as an ‘injunction’.

- S. 114 - Court has power to make injunctions ‘as it considers proper’ including: For protection of a party; restraining a party from entering or remaining in matrimonial home, specified area, place of residence or workplace of other party; for protection of the marriage; to restrain dealing with property; in relation occupation of the matrimonial home.

• Question 6 - Looking at ‘Kate and Joe’ scenario last week, how what is relevance of s. 114 power? - Relevance of s. 114 – how could she utilise it in relation to the occupation of the home? - Can s. 114 be used to stop Joe doing the things he says he’s going to do?

• Question 7 - Ascot investments v Harper (1981) (HC) - FCA cannot make order “if its effect will be to deprive

a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform”

• Exceptions – “sham… to assist one party to evade his or her obligations ”, Co. as “mere puppet” or “in complete control” of party, party’s “alter ego”.

- So what is impact of Pt VIIIAA FLA on principle in Ascot Investments? - Overrides it to a large extent. - Power to go behind sham or alter ego arrangements or to set aside transactions designed to

defeat claims (s. 106) always there but Part VIIIAA gives court wide powers to make orders against third parties – see s. 90AE FLA.

- See discussion [14.43] re Hughes Kempe case. Hunt and Hunt (2006) and the constitutional issues raised by power under Part VIIIAA.

- 90AC – Part VIIIAA overrides law or deed.

- 90AE powers wide in context of s. 79 (property) proceedings:

- 90AE(1) (a) – (c) orders against creditors of parties/party to marriage.

- 90AE(1) (d) – orders against director of Co. re share transfer.

- 90AE(2) – Court may make any other order that:

(a) directs a 3rd party to “do a thing in relation to the property of a party to the marriage” or

(b) “alters rights, liabilities or property interests” of a 3rd party.

Wide but subject to 90AE(3) and 90AE(4).

90AE (3) – only make order if …

(a) reasonably necessary/appropriate to effect property division.

(b) if debt, not foreseeable that order will result in debt not being paid.


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(c) procedural fairness for 3rd party.

(d) just and equitable to make order.

(e) Matters in (4) taken into account

- 90AE(4) includes matters such as:

o taxation effect (if any) on party to marriage (“PTM”) and 3rd party, o social security effect (if any) on PTM o admin costs of 3rd party compliance. o capacity of PTM pay debt if order concerns a debt or otherwise to comply with order. o matters raised by 3rd party. o any other matter court sees relevant.

Question 9 – Injunctions against 3rd parties - 90AF - INJUNCTIONS against 3rd parties under s. 114 FLA. - Wide powers similar to 90AE and with similar requirements to 90AE (3) and (4). - 90AG – orders/injunctions bind trustees. - 90AH – 3rd party not liable for loss of any party where 3rd party relies on order/injunction. - 90AJ – Court may order payment of 3rd party’s expenses incurred as a result of

order/injunction. - Parties should generally bear expenses equally. - 90AK – court should not make order/injunction for acquisition of property if acquisition not “on

just terms” or constitutionally invalid.

Question 10 – action to set aside transaction to defeat claim - [14.44-14.49] Section 106 B FLA – Setting aside transactions intended or likely to defeat an

existing or anticipated order. - Court must have regard to interests of third party such as bona fide purchaser. Gould’s case

(1993) involving s.85 (old 106B) – court should be conservative if genuine third party. - [14.46] - property proceedings should be already commenced before power exercised but

matter for discretion. - Abdullah (1981) – H. sold land to bogus third party at low price – no difficulty in setting aside. - Halabi’s case (1993) – instrument must be made with intention of defeating an existing or

anticipated order, OR, regardless of intention, is likely to defeat such an order (causal connection)

- In ANZ v Harper (1987) H took out loan mortgaged on home without wife’s knowledge and spent the money. W sought to have loan/mortgage set aside. Ct said the loan wasn’t likely to defeat the order per se.


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90AE Court may make an order under section 79 binding a third party

(1) In proceedings under section 79, the court may make any of the following orders: (a) an order directed to a creditor of the parties to the marriage to substitute one

party for both parties in relation to the debt owed to the creditor; (b) an order directed to a creditor of one party to a marriage to substitute the other

party, or both parties, to the marriage for that party in relation to the debt owed to the creditor;

(c) an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made;

(d) an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party.

(2) In proceedings under section 79, the court may make any other order that: (a) directs a third party to do a thing in relation to the property of a party to the

marriage; or (b) alters the rights, liabilities or property interests of a third party in relation to the

marriage.

(3) The court may only make an order under subsection (1) or (2) if: (a) the making of the order is reasonably necessary, or reasonably appropriate and

adapted, to effect a division of property between the parties to the marriage; and (b) if the order concerns a debt of a party to the marriage—it is not foreseeable at

the time that the order is made that to make the order would result in the debt not being paid in full; and

(c) the third party has been accorded procedural fairness in relation to the making of the order; and

(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and

(e) the court is satisfied that the order takes into account the matters mentioned in subsection (4).

(4) The matters are as follows: (a) the taxation effect (if any) of the order on the parties to the marriage; (b) the taxation effect (if any) of the order on the third party; (c) the social security effect (if any) of the order on the parties to the marriage; (d) the third party’s administrative costs in relation to the order; (e) if the order concerns a debt of a party to the marriage—the capacity of a party to

the marriage to repay the debt after the order is made; Note: See paragraph (3)(b) for requirements for making the order in these

circumstances. Example: The capacity of a party to the marriage to repay the debt would be

affected by that party’s ability to repay the debt without undue hardship. (f) the economic, legal or other capacity of the third party to comply with the order;

Example: The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).


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(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters—those matters; Note: See paragraph (3)(c) for the requirement to accord procedural fairness to

the third party. (h) any other matter that the court considers relevant. Division 3—Orders or injunctions under section 114

90AF Court may make an order or injunction under section 114 binding a third party

(1) In proceedings under section 114, the court may: (a) make an order restraining a person from repossessing property of a party to a

marriage; or (b) grant an injunction restraining a person from commencing legal proceedings

against a party to a marriage.

(2) In proceedings under section 114, the court may make any other order, or grant any other injunction that:

(a) directs a third party to do a thing in relation to the property of a party to the marriage; or

(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.

(3) The court may only make an order or grant an injunction under subsection (1) or (2) if: (a) the making of the order, or the granting of the injunction, is reasonably

necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

(b) if the order or injunction concerns a debt of a party to the marriage—it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

(c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

(d) for an injunction or order under subsection 114(1)—the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

(e) for an injunction under subsection 114(3)—the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

(f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

(4) The matters are as follows: (a) the taxation effect (if any) of the order or injunction on the parties to the marriage; (b) the taxation effect (if any) of the order or injunction on the third party; (c) the social security effect (if any) of the order or injunction on the parties to the

marriage; (d) the third party’s administrative costs in relation to the order or injunction; (e) if the order or injunction concerns a debt of a party to the marriage—the capacity

of a party to the marriage to repay the debt after the order is made or the injunction is granted; Note: See paragraph (3)(b) for requirements for making the order or granting

the injunction in these circumstances.


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Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.

(f) the economic, legal or other capacity of the third party to comply with the order or injunction; Example: The legal capacity of the third party to comply with the order or

injunction could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters—those matters; Note: See paragraph (3)(c) for the requirement to accord procedural fairness to

the third party. (h) any other matter that the court considers relevant.

Division 4—Other matters

90AG Orders and injunctions binding on trustees

If an order or injunction binds a person in the capacity of trustee in relation to property, then the order or injunction is also binding (by force of this section) on any person who subsequently becomes the trustee.

90AH Protection for a third party

A third party in relation to a marriage is not liable for loss or damage suffered by any person because of things done (or not done) by the third party in good faith in reliance on an order or injunction made or granted by a court in accordance with this Part.

90AI Service of documents on a third party

(1) If a document is required or permitted to be served for the purposes of this Part on a third party in relation to a marriage, the document may be served in any of the ways in which a document may be served under the applicable Rules of Court.

(2) Subsection (1) is in addition to any other method of service permitted by law.

90AJ Expenses of third party

(1) Subsection (2) applies if: (a) the court has made an order or granted an injunction in accordance with this Part

in relation to a marriage; and (b) a third party in relation to the marriage has incurred expense as a necessary

result of the order or injunction.

(2) The court may make such order as it considers just for the payment of the reasonable expenses of the third party incurred as a necessary result of the order or injunction.


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(3) In deciding whether to make an order under subsection (2), subject to what the court considers just, the court must take into account the principle that the parties to the marriage should bear the reasonable expenses of the third party equally.

(4) The regulations may provide, in situations where the court has not made an order under subsection (2):

(a) for the charging by the third party of reasonable fees to cover the reasonable expenses of the third party incurred as a necessary result of the order or injunction; and

(b) if such fees are charged—that each of the parties to the marriage is separately liable to pay the third party an amount equal to half of those fees; and

(c) for conferring jurisdiction on a particular court or courts in relation to the collection or recovery of such fees.

90AK Acquisition of property

(1) The court must not make an order or grant an injunction in accordance with this Part if the order or injunction would:

(a) result in the acquisition of property from a person otherwise than on just terms; and

(b) be invalid because of paragraph 51(xxxi) of the Constitution.


acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.


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106B Transactions to defeat claims

(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

(1A) If: (a) a party to a marriage, or a party to a de facto relationship, is a bankrupt; and (b) the bankruptcy trustee is a party to proceedings under this Act;

the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the

interest of, the bankrupt; and (d) which is made or proposed to be made to defeat an existing or anticipated order

in those proceedings or which, irrespective of intention, is likely to defeat any such order.

(1B) If: (a) a party to a marriage, or a party to a de facto relationship, is a debtor subject to a

personal insolvency agreement; and (b) the trustee of the agreement is a party to proceedings under this Act;

the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the

interest of, the debtor; and (d) which is made or proposed to be made to defeat an existing or anticipated order

in those proceedings or which, irrespective of intention, is likely to defeat any such order.

(2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.

(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

(4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.

(4AA) An application may be made to the court for an order under this section by: (a) a party to the proceedings; or (b) a creditor of a party to the proceedings if the creditor may not be able to recover

his or her debt if the instrument or disposition were made; or (c) any other person whose interests would be affected by the making of the

instrument or disposition.

(4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).



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disposition includes: (a) a sale or gift; and (b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights

attaching to, an interest in a company or a trust.

interest: (a) in a company includes: (i) a share in or debenture of the company; and (ii) an option over a share in or debenture of the company (whether the share

or debenture is issued or not); and (b) in a trust includes: (i) a beneficial interest in the trust; and (ii) the interest of a settlor in property subject to the trust; and (iii) a power of appointment under the trust; and (iv) a power to rescind or vary a provision of, or to rescind or vary the effect of

the exercise of a power under, the trust; and (v) an interest that is conditional, contingent or deferred.


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Setting Aside Property Orders Question 11 – Setting aside/varying orders

• Appeal of a s.79 order – difficult – must be error of fact/law or inadequate reasons given (so can infer discretion not properly exercised).

• Set aside/ vary – s. 79A. Grounds? 79A(1) a. Miscarriage of justice – fraud, duress, false evidence, failure to disclose. b. Circumstances have arisen making it impractical to carry out order or part of order. c. Default in carrying out – equitable to vary. d. (d)exceptional circumstances have arisen re care/welfare of child or party who has

care of child causing hardship since order made. e. proceeds of crime order.

• [14.51] Miscarriage of justice – see the ‘4 steps’ in Patching (1995). Not automatic that a miscarriage of justice will mean orders set aside (Morrisson (1994)).

• What is a miscarriage of justice? (see p. 694). Incompetence of lawyer not a miscarriage (Clifton and Stuart (1990)), nor will no representation necessarily mean a miscarriage for 79A purposes (Prior 2002)).

• Impracticality [14.53] – decided in each case and can’t rely on one’s own failures to do what should have been done.

• Default [1 4.54-14.55] – must be able to point to hardship. Subject to ‘just and equitable’. W in Monticone (1990) not granted 79A order even though H in default because he had nearly fully complied (and would soon fully comply), the default was not his fault and W could not point to any hardship.

• Sandrk (1991) [14.56] – order made on basis children with W. Four mths later they moved to live with H. – Court set aside.

• Court has discretion to vary and substitute with order/s it sees as appropriate. • 79A(1A) – can also set aside by consent on application of a person affected. And

substitute/vary as appropriate. • Note 79A (4) – (7) re position of creditors, bankruptcy trustee and insolvency trustee. • They are ‘affected parties’ – right to apply to vary or set aside orders. Enforcement of Part VIII orders • Part XIIIA FLA sanctions for breach – fines/bond, imprisonment (ss 112AD and

112AE)….but this is punishment – wont get your money. • Chapter 20 Family Law Rules 2004 lists enforcement options – seizure/sale of property,

attachment of earnings/debts, sequestration of property, appointing a receiver.


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Property Distribution on the Breakdown of a De Facto Relationship (Ch 15) – Seminar 9

Background - General Law approach (see pp. 700-712 in text) - Law re property settlement for non-married was a STATE issue (not under Commonwealth

constitutional power). - Before state legislative regimes (1980s -1990s), parties had to rely on general law (esp. equity). - General law approach to de-facto property adjustment – “resulting trust”, “constructive trust”

and “proprietary estoppel” – still relevant for couples who fall out side of statutory scheme or who wish to bring claims under general law.

- “resulting trust” – contributors hold beneficial interest in property. Legal owner holds proportion/s of property on trust for contributors – Calverly and Green (1984). Limited use as depends on financial contributions.

- “constructive trust” – more popular and useful, particularly the “new” model developed in Muschinski v Dodds (1985) and Baumgartner (1987) ([15.7]). Based on unconscionability – unconscionable for title holding party to wholly retain the benefit of other party’s contribution – other party should be compensated. No need for common intention.

- While the wider constructive trust became common approach since Baumgartner, many critics have suggested that cases have showed tendency to give insufficient weight to non-financial contributions (eg homemaker/parent).

- Statutory regimes - By the mid 1980’s, states began to legislate in this area as rsults available via general law not

satisfactory AND more people living together rather than marrying. - In NSW in 1984, De Facto Relationships Act 1984 introduced. Created property and

maintenance regimes for heterosexual defacto partners. - In 1999 major amendments – same sex included in definition of defacto and concept of “close

personal relationship”.

Statutory scheme - Act name changed to Property Relationships Act 1984 (NSW). - Other states slowly adopted similar laws though some recognised same sex relationships

earlier than others. - Focus in state property regimes is contribution. No “future needs” adjustment.

Question 1 – definitions under PRA S. 4(1) PRA For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. s.5(1) PRA includes de facto relationship in definition of “domestic relationship” and also includes “close personal relationships” – where people live together providing domestic support.


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S. 4(2) PRA: In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial

support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. - Part 3 PRA deals with property adjustment

o Party to a “domestic relationship” may apply for “adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance or both” – s.14(1).

- Pre-requisites – ss. 15-18 – what are they? o one or both parties resident in NSW at time of application or substantial contrib to NSW

property o 2 year duration of relationship (exceptions). o must apply within 2 years of termination (18(1)).

Question 2 – What is taken into account under PRA? - If Pre- reqs met, s. 20 applies to the adjustment. - 20(1) Court can make such order as is “just and equitable” having regard to:

o financial and non-financial contribs (direct and indirect) o contribution to welfare of family.

- Note contribution focus. Less range than FLA. - No s. 75(2) FLA type “future needs” adjustment. - Note to that under PRA, superannuation cannot be dealt with as “property”. - Dwyer v Kaljo (1992) [15.29 -15.30] attempt to remedy failure of De facto law to look beyond

contributions – notion of remedying injustice because of one party’s expectations. Ms D made career choices based on expectation of financial support from millionaire partner.

- Wallace v Stanford (1995) – contribution only. - Evans v Marmont (1997) [15.30-15.31] Ct of Appeal confirmed wrong to go beyond

contributions, can’t compensate for lost opportunity. Dwyer approach rejected. Narrow approach favoured.

- Howlett v Nielson (2005) – court commented that whilst can’t make orders based on needs or opportunities lost, those issues might be relevant to the cost of the contribution.

- See commentary at p. 724 re Wallace v Stanford (1995) and failure of PRA to place much weight on non-financial contribution.

- Community attitudes towards de facto relationships have changes significantly in recent

decades, and the process of change is still going on …it was not the intention of the NSW Parliament in 1984 to equate de facto relationships with marriage

- De-facto move to the FLA

The New Part VIIIAB - Remember back to week 1 re constitutional issues. FLA when originally enacted couldn’t deal

with kids where parents not married but states referred their powers in 1980s.


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- Also in 1980’s , cross vesting scheme set up to allow Family Court to hear related state matter (ie if FC hearing a parenting matter, parents could also bring their defacto property claim into FC heard under state law). De facto move to FLA

- 1999 decision of Re Wakim rendered cross-vesting scheme invalid in so far as it was used to allow de factos to do this. So de facto couples fighting over kids and property had to go to two separate courts (though technically state court could hear an FLA matter).

- This fact plus fact that state de facto property regimes generally less advantageous to non-financial contributor lead to push for de-facto property to come under FLA.

- By 2007/2008, all states except SA and WA had enacted legislation referring their powers re defacto (inc. same sex) to Commonwealth – Defacto -

- On 1 March, 2009, Part VIIIAB FLA added by virtue of the Family Law Amendment (De Facto and other Financial Measures) Act 2008.

- De facto property now under part VIIIAB FLA.

Question 3 – What is de facto relationship under FLA? S. 4AA FLA De facto relationships Meaning of de facto relationship (1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple (2)Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship. 3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. Quest. 4: When can you bring Pt VIIIAB de facto property claim? - See [15.17- 15.22] - Must have been in a de facto relationship. - Must have separated after 1 March, 2009.


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Preliminary, Part VIIIAB, Subdiv. A - 90SB Time requirement. 2 years subject to exceptions like PRA but more relaxed (see s.17

PRA) OR a registered relationship under state law. - (Note discussion [15.35-15.39] re time limits generally and how regarded by court – leave to

proceed if reason for delay and hardship). Property: Part VIIIAB, Subdivision C - 90SM (like s. 79) Note 90SM (3) “just & equitable” and 90SM (4) like 79(4). - Contribution AND future needs . See 90SM (4)(e). Like 79(4)(e): refers to 90SF factors (like

75(2)). - Note s. 44(5) FLA – must bring claim within 2 years of termination of relationship. - Similar application to 3rd parties as Pt. VIIIAA (90TA). Replaces s. 44 PRA agreements for

eligible couples. - BFA provisions (Div 4) very similar to Part VIIIA. Before relationship (90UB), during (90UC) and

after (90UD) (see [15.44]). - Requirements (90UF and 90UH) like Part VIIIA but extra geographic req (90UA). - Termination (90UL), set aside (90UN). - Access now to part VIIIB re Superannuation as well.

Question 5

- How is PRA different to Property under the FLA? o No ‘future needs’ adjustment. o Lesser range of contributions. o The pre –reqs – no pre reqs in FLA other than the marriage.

- Note too that part 3 of PRA only talks about adjustment of PROPERTY and, unlike FLA, super is not defined as property under PRA – treated as ‘resource’ .

- PRA Focus is on contribution. Disdvantages the non-financial contrib partner (eg woman who perhaps gives up career opportunities). Question 6 - better or worse off under PRA?

- Pt VIIIAB FLA now basically deals with property and maintenance for defactos (no distinction re same sex or heterosexual) in same way as married couples under FLA subject to time and geographic criteria (provided sep. after 1/3/09) .

- A de facto partner with less financial contribution, greater future needs and less super will be better of under FLA.

- Partner with more assets, super, greater financial contribution better off under PRA. - Some commentators critical of new Part VIIIAB – taking away choice – forcing obligations as if

married when no intention to marry. - Debate is essentially ‘Freedom of choice & no regulation’ versus ‘need to give protection from

exploitation’. Is that need any different for couples who are not married? - Adjustment to compensate for economic impact of relationship – Should parties intentions re

long term (ie marriage or not) be relevant? - Is lack of ‘commitment’ to marry justification for different treatment?

Question 7: Partner maintenance under PRA

- Like PRA property regime, the PRA maintenance regime much more limited than FLA regime. - Firstly, must meet the time and geographic limits in sections 15-18 PRA. - If so, can apply under s. 27 PRA but very limited: 27(a) – unable to support self because care of child U12 or U 16 & disability. (b) – unable to support because earning capacity adversely effected by circ’s of relationship & reasonable to make order. Q. 7: Maintenance under PRA - Limited re duration – see s. 30 limitations. - If order made under 27(1)(a) it ends when child turns 12 or 16 (if disabled) (s. 30(1)).


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- If made under 27(1)(b) it ends: 30(2) (a)3 years after the day on which the order is made, or (b) 4 years after the day on which the relationship ceased, or last ceased, - Clearly more difficult to get and more limited than for married couples.

De Facto Maintenance under Part VIIIAB FLA Maintenance, Part VIIIAB, Subdiv. B

• 90SD geographical requirement. • 90SE power. • 90SF(3) factors (like s.75(2). • 90SJ when cease: death, marriage. • Subject to geographic and time limits, it is identical to the regime for married people - s.

90SF(3) is just like s. 75(2) and under 90SJ the order continues until death, marriage. • See [9.51 -9.61].

Question 9 – other support under FLA whether in de facto relationship or not. • Childbirth maintenance – 67 B – 67 G. (see [9.62]) • Father liable for various expenses regardless of whether parties married. See relevant

sections. • Father (whether in relationship or one off encounter) can be made liable for expenses

related to the childbirth including maintenance for ‘child birth maintenance period’ , medical expenses, funeral expenses.


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Support of De Factor Partners (Ch 9)

- One of the most fundamental and controversial issues in contemporary family law is the extent to which legal consequences of the breakdown of a de facto relationship should mirror those attaching to marriage breakdown. In a pluralist society, the law must recognize and support diversity in family formation.

- It can be argued that diversity requires individuals to be free to attach legal consequences of their choice to relationships of their choice (see pp 482-483)

• Statutory maintenance entitlements prior to the commencement of the Pt VIIAB in 2009

- Pre-existing law gave courts power to make maintenance orders in limited circumstances

- Orders for maintenance outside or marriage are even less common then spouse maintenance.

• Statutory maintenance entitlements after the commencement of the Pt VIIAB

- Commenced 1 March 2009 – main aim was to extend the financial settlement regime available to married couples under the FLA to de facto couples

- Threshold issues and time limits

- In order to be eligible to make an application, an applicant must have been in a de facto relationship that has lasted at least two years unless the parties have a child, or the applicant made a substantial contribution to the relationship, or the relationship is or was registered in a relevant state or territory (s 90SB FLA)

- The applicant must apply for financial orders within two years of the breakdown of the relationship (s 44(5) FLA)

- Can only apply following a breakdown not during the relationship (s 90SE(1))

- Then apply s 90SF(1) Matters to be taken into consideration in relation to maintenance

(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:

(a) only to the extent that the first-mentioned party is reasonably able to do so; and (b) only if the second-mentioned party is unable to support himself or herself

adequately whether: (i) by reason of having the care and control of a child of the de facto

relationship who has not attained the age of 18 years; or (ii) by reason of age or physical or mental incapacity for appropriate gainful

employment; or (iii) for any other adequate reason.


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- Geographical Requirements

- Either or both the de facto partners must be ordinarily resident in a participating jurisdiction when the application is made and one or both of the must have been ordinarily resident for at least one third of the relationship or have made a substantial contribution to the relationship (s 90SD)

- The court’s power under s 90SE and the s 90SF(3) Factors

- Once the threshold matters have been crossed, s 90SE empowers the court to make ‘such order as it considers proper for the maintenance of one of the parties to the de facto relationship’. The court must only take into account the list of factors in s 90SF(3)

(3)The matters to be so taken into account are: (a) the age and state of health of each of the parties to the de facto relationship (the

subject de facto relationship); and (b) the income, property and financial resources of each of the parties and the


(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and






and (g) a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance


(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and


(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and




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(n) the terms of any order made or proposed to be made under section 90SM in relation to:

(i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (o) the terms of any order or declaration made, or proposed to be made, under this

Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto

relationship); or (ii) a person who is a party to another de facto relationship with a party to the

subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person


subparagraph (i) or (ii); and (p) the terms of any order or declaration made, or proposed to be made, under

Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto

relationship; or (iii) the property of a person covered by subparagraph (i) and of a person


subparagraph (i) or (ii); and (q) any child support under the Child Support (Assessment) Act 1989 that a party to

the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and

(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and

(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.

- In determining a maintenance order the court must have regard to the terms of any property order made or proposed to be made under s 90SM – (s 90SF(p))

- Modification and cessation of de facto relationship maintenance order

- Section 90SI sets out circumstances where a maintenance order can be modified

90SI Modification of maintenance orders

(1) If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:

(a) made by the court; or (b) made by another court and registered in the first-mentioned court in accordance

with the applicable Rules of Court; the court may:

(c) discharge the order if there is any just cause for so doing; or


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(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; or

(e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (3), vary the order so as to increase or decrease any

amount ordered to be paid or in any other manner.

(2) The court’s jurisdiction under subsection (1) may be exercised: (a) in any case—in proceedings with respect to the maintenance of a party to the

de facto relationship in accordance with this Division; or (b) if there is a bankrupt party to the de facto relationship—on the application of the

bankruptcy trustee; or (c) if a party to the de facto relationship is a debtor subject to a personal insolvency

agreement—on the application of the trustee of the agreement.

(3) The court must not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

(a) that, since the order was made or last varied: (i) the circumstances of a person for whose benefit the order was made have

so changed (including the person entering into a stable and continuing de facto relationship); or

(ii) the circumstances of the person liable to make payments under the order have so changed; or

(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

as to justify its so doing; or (b) that, since the order was made, or last varied, the cost of living has changed to

such an extent as to justify its so doing; or (c) in a case where the order was made by consent—that the amount ordered to be

paid is not proper or adequate; or (d) that: (i) material facts were withheld from the court that made the order, or from a

court that varied the order; or (ii) material evidence previously given before such a court was false.

(4) In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

(5) The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

(6) In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by a party to the de facto relationship, or by the bankruptcy trustee of a party to the de facto relationship, to:

(a) the other party; or (b) any other person for the benefit of the other party.

(7) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.


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(8) If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date, being money that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.

(9) If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

(10) For the purposes of this section, the court must have regard to the provisions of section 90SF.

(11) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

- Child Bearing Expenses

- SEE Pages 491-493


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Families Children and Welfare – Family Violence

(Ch 15,13, 8.23-8.33) – Seminar 10

Family Violence - Concerns about the prevalence of violence committed by one family member against another

and the inadequacy of the law’s response have been consistently voiced for several decades. - Recognised link between violence and inequality – a violent relationship is an extreme example

of power imbalance between the individuals concerned. – moreover, a legal system that fails to acknowledge the seriousness of the violence compounds the disempowerment of the victim

- A victim thus suffers inequality both in the relationship and in access to the legal system - Since majority of victims are women – in Aus contemporary society it has been seen as an

issue of women’s inequality - Family violence increasingly recognised as a serious issue over last twenty years. - Significant proportion of all assaults and murders are related to family violence [16.1]. Important

issue in family law cases. - ALRC report in 1993 highlighted prevalence of family violence and impact on women including

disempowerment – fear/inability to seek redress – psychological, emotional, financial impact [16.2-16.3]

- Taken into account formally in FLA for first time in 1996 – Family Law Reform Act 1995. - “family violence” became one the matters looked at in the “best interests” checklist in old s. 68

F(2) , now s. 60CC, and protections/injunctions under 68 B for children/party with care of children

- 2006 changes - protection from harm elevated to a primary consideration (60CC(2)(b) but must be balanced against 60CC(2)(a) – maintenance of relationship with both parents.

- How to find the balance? - Other provisions such as s. 60CC(3)(c) “friendly parent” and s. 117AB costs penalties potential

to act as disincentive to report/raise violence or block contact because of fear. - New definition of family violence – “reasonable person” – objective. Up to court to decide if

reasonable – what about where fear because of covert pressure/violence? What about individual capacity to cope?

- Overall tenor of 2006 changes emphasises role of both parents – conflict between protection and contact.

- Protection from harm now elevated to primary consideration status (60CC(2)(a). - Early view in FCA cases was that family violence not relevant unless kids were direct victims

(Marriage of Heidt (1976)). - Now accepted that this view is wrong. Jaeger’s case(1994) - marked change in attitude.

Violence to party is relevant whether or not kids direct victims. - 1995 reform: FV as formal consideration in Act for first time. - Look at cases back in Seminar 4 and discussion at [ 8.23- 8.33]. Section 4(1) FLA

family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety. Note: A person reasonably fears for, or reasonably is apprehensive about, his or her

personal wellbeing or safety in particular circumstances if a reasonable person in


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those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

Family Violence – Question 1: How is family violence taken into account in children’s matters? S. 60B objects and principles (extract 60B (a) and (b)). 60B Objects of Part and principles underlying it (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and … 60CC How a court determines what is in a child's best interests Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Additional considerations – s. 60CC(3)

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family; (k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person; Family Violence – Question 1 60CF Informing court of relevant family violence orders (1) If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order. (2) If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that person may inform the court of the family violence order. (3) Failure to inform the court of the family violence order does not affect the validity of any order made by the court. 60CG Court to consider risk of family violence

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order: (a) is consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

- Test for harm where allegations of abuse: “is there an unacceptable risk?” formulated by HCA in M and M (1988) – leading case Not investigation into factual truth so much as whether an unacceptable risk.

- See [8.98-8.119] for detailed discussion (and notes and cases discussed week 4) . - Difficulty with test – standard of proof. Finding can be made on unestablished facts – unlike any

area of law…yet statistics also show that false allegations rare. Are 2006 changes pressuring court to find risk is acceptable?

- The test has been extended to risk of harm.


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- Whether or not party did what is alleged is not as relevant as children’s belief/fear. - A and A (1998) Court can examine allegation to decide whether unacceptable risk but not

court’s task to decide truth of allegation. - Re R (1995) Wife shot. Alleged H did it. Convicted. Court said doesn’t matter if did it or not.

Child has real belief H did it. Evidence child terrified, not in child’s interest to have contact. - At the other end of the spectrum, some groups argue that violence is so pervasive an

allegation, and protection orders so easy to obtain, that false allegations of violence are routinely made by mothers as a tactic to stop or curtail fathers having contact with their children.

- There is debate as to whether the recent reforms are improving the position of victims of that

violence.

Injunctions - An injunction under the FLA is one remedy available to a victim who suffers violence from a

partner. - Not a popular method due to ineffectiveness. - An application for an injunction must be made by an individual or legal representative and

proceedings might prove costly and protracted. - S. 114 injunctions (married people only). - Can be used to keep away from spouse, exclusive occupation of home, protection of property

[16.10]. Note limits [16.13]. - Remember too under Part VIIIAA – injunctions now available against third parties (see seminar

8 notes – s.90AF), subject to conditions. o The injunction as protection from violence and harassment

- Section 114 has been interpreted widely – ‘personal protection’ has been interpreted to include not only physical violence but also protection of the right to live one’s own life without interference

- Proceedings for an injunction must involve circumstances arising out of the marital relationship o Injunctions excluding a party from the home

- Section 114(1) injunction can be used to exclude one party from the home, even if he or she has a proprietary interest in the property.

- A new subsection 2A has been introduced to extend the power to de facto relationships - The injunction is a discretionary remedy

o Enforcement - Enforcement problems have been identified as a principal reason for the injunction’s

ineffectiveness – and consequent lack of use – in protecting a victim from violence and harassment

- Section 114AA provides for an automatic power to arrest for breach of an injunction in certain circumstances

- There are also now sanctions of imprisonment and fines - Question 2 – Injunctions - Children or carers of children - s. 68B – 68B(1) – court may make such order or grant such injunction as it considers

appropriate for the welfare of the child inc. (a) For personal protection of child (b) personal protection of parent, person with whom live with or spending time, person with

parental resp., person who communicates - 68B (1) (c) and (d)


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- Can restrain entering or remaining in place of residence, education or employment or a specified area that includes one of these places either in respect of child or person in 68B(1)(b).

- 68B(2) – can make order/injunction as an interlocutory order. - 68B(3) – such conditions as court considers appropriate. - Procedure?

• Apply in accordance with power under relevant section • Dealt with as interim order in context of wider proceedings for children and/or property.

Would have to be seeking final orders as well as interim orders. • Heard before final hearing.

Protection orders under state and territory legislation - The protection order under state and territory legislation is the legal remedy most commonly

invoked in practice by victims of family violence - A protection order often referred to as an ‘apprehended violence order’ or ‘restraining order’ can

speedily be obtained from a magistrate’s court if the applicant satisfies the court on a balance of probabilities that the order is needed. Breach of an order is a criminal offence and therefore police can arrest without a warrant.

o Relationship between Commonwealth and state or territory laws - A married person has the option of applying for either an injunction under the FLA or a

protection order under state or territory laws Question 3

• Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPVA) – replaced part XV Crimes Act from 1 July 08.

• Quicker, cheaper than FLA provisions. • Complainant can apply or police can apply (cf party applying under FLA) • Police will apply if domestic relationship and criminal offence (eg assault) also committed. • Part 4 - Apprehended Domestic Violence Orders (ADVO), Part 5 - Apprehended Personal

Violence Orders (APVOs) • Interim orders, telephone orders. • Objectives – ss.9 and 10 CDPVA. • How apply for ADVO/Grounds – see ss. 15-17. Does not have to be actual physical

violence. S.17 – prohibitions/restrictions, factors to be taken into account. • Ss. 18-21 re APVOs – note s. 21 re mediation. • Standard of proof – different to other criminal matters – On balance of probabilities, does

the complainant have a reasonable ground to fear and in fact fear ? • State provisions more commonly used – quicker and easier – police will run the case if they

issue the ADVO. In family court, party must run/fund own case. • Note jurisdictional issue – FC can make orders inconsistent with State family violence order

– invalidates it to extent of inconsistency. State Court can vary parenting order if inconsistent with AVO – see s.s. 68 Q & 68R FLA.

• Any person with fear of violence from another may bring application – if in domestic relation ship will be ADVO

• FLA injunctions not popular – costly and ineffective. • Not too, injunction as discretionary remedy – limits effectiveness – cf. ADVO’s under

Crimes (Domestic and Personal Violence) Act 2007 (NSW).


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Question 4 – Injunctions - enforcement

• ADVO’s enforced by police if breach reported – breach ADVO regarded as serious criminal offence.

• Ss. 68C & 114AA powers of arrest for breach of order under FLA but issues re effectiveness – poor communication between police and FCA – police need to be made aware of the orders and their powers.

• See [16.18]. Question 5: reasons why victims may not leave violent relationship

• Lack of confidence, self esteem. • Fear • Children • Fear re protection of children • Lack of finances – nowhere else to go. • Drug/alcohol dependency or co-dependency. • Police/courts sometimes criticised for not taking domestic violence seriously – a “private

matter” • Their choice whether or not to intervene (no choice if charge). • Fear of reporting. • Drugs, alcohol. • Victim may not want to report. • Victim may change mind, not co-operate with hearing.

Question 6

• Criticisms of new definition of family violence- why? Valid? • “reasonableness” requirement. • See p. 753 – is definition suggesting that the violence is acceptable as long as a

“reasonable” person would not feel afraid…who is making the decision? • Also, individuality of victim’s circumstances ignored. • Concern that 60B(1) and 60CC(2)(a), read with s, 60CC(3)(c) (“friendly parent” provision)

and s. 117AB (costs sanction if allegation can’t be sustained) work together to make protection from harm ‘less important’ than maintenance of the relationship with both parents.

Question 7 – relevance to property?

• Behaviour/conduct NOT generally relevant unless ‘both obvious and gross’ (Wachtel 1973) – see [13.35].

• See commentary on Doherty’s (1995) case at 13.38 – conduct may impact on ability to contribute.

• This approach was also adopted in Kennon (1997) – leading case re violence and contribution.

• In the Marriage of Kennon (1997) 139 FLR 118 • W made property settlement application and also made cross-vested claim for damages in

respect of a series of assaults she received from H during the marriage. • Trial judge awarded $43K on damages action but refused to take into account in s. 79

proceedings. W appealed. Full Court upheld appeal – “…where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have a significant adverse impact upon that party’s contribution to the marriage, or, put the other way to have made his or her contributions more arduous than they ought


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to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s. 79.” (per Fogarty and Lindenmayer JJ)

• When decided, many thought Kennon was a breakthrough for victims but…lawyers found hard to apply to a contribution analysis.

• How do you determine what someone could have contributed but for violence? • Note cases at [13.39] of Marsh (1993) and Homsy, Yasha (1993) where a party was violent

and the court has refused to let a them get a benefit that they otherwise might have got (eg H killed mother then claimed that he should get 75(2) adjustment for having to care for kids alone).

• Destruction of also property relevant – Kowalwi (1981) • Impact of violence may be relevant to s. 75(2) future needs (eg 75(2)(a) re health)


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Indigenous Australians and Family Law; Adoption; Child Welfare Proceedings (Ch 8, 4, 16 – Extract) – Seminar 12

Indigenous Australians and Family Law - SEE PAGES 408-414; 4.5 AND 4.9; 16.62-16.70 Question 1 - No special mention re indigenous culture in child matters until F L Reform Act (1995) (see

[8.76] ) despite Article 30 UNCROC and centrality of culture to ATSI identity. - Early FCA cases – cultural value overlooked (eg Goudge (1984) (see commentary at [8.76]). In

Sanders (1976), trial judge disregarded aboriginality/culture as a consideration, focussing on capacity to provide economically – overturned by Full Court).

- Seemed to have been ignored in effort to avoid suggestion of “presumptions” – favour one culture over another, perception of unfairness.

- Gradual move to recognition ( Re McL (1989) and B and R and the Separate Representative (1995) see p. 409 Text). In B and R , court held that rather than recognition of culture being discriminatory, failure to recognise was “less than equal justice”.

- Represented common law recognition of “Aboriginal child placement principle” - where it is possible to place Aboriginal children with members of their extended families or within other Aboriginal communities, it is important to do so (subject to “best interests”).

- Indigenous Australians and Family Law - s. 68F (2) (f) - inserted with ’95 reforms - specifically required court to take into account:

o “any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders”

when looking at child’s maturity, sex and background “and any other characteristics of the child the court sees as relevant.” - Cases like RE CP (1997) show that law still struggled with aspects of indigenous culture. - In that case a Tiwi Island community sought order in relation to a child – care for child on

communal basis (his “mothers”) – as against Thursday Island Woman who had raised the child. Trial judge found in favour of the Thursday Islander woman – overturned on appeal – Trial judge didn’t understand/appreciate cultural value of Tiwi extended family, or differences between the two cultures.

Question 2 - “Bringing Them Home” Report (1997) (Report into ‘Stolen Generations’): recommended

changes to s. 60B and s. 68F(2) (f) and also better education of judiciary re ATSI culture and family.

- See handout. - Concern that 60B and 68F(2)(f) spoke of “any need” that a child might have to maintain

connection to culture rather than a child’s “right” to maintain and be given opportunity to nurture that connection.

- 2006 amendments to 60B and 60CC incorporated report recommendations. 60B (2) (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). 60B (3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and


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(b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (ii) to develop a positive appreciation of that culture. 2006 changes The 60CC (3) factors now include: Right to enjoy Aboriginal or Torres Strait Islander culture 60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (ii) to develop a positive appreciation of that culture. Question 3 – cultural connection v other factors - All still subject to 60CA “best interests”... But issue of maintenance of culture given serious

consideration. - See [8.81] re Davis (2007) for post 2006 position. - Court in Davis didn’t say that there should be a presumption in favour of the Aboriginal mother

but saw that an order that children live with the mother would best allow the children to maintain the cultural connection and was, overall, in “best interests”.

- Indigenous Australians and Family Law Customary Marriages (see [4.5] and [4.9]) - Not valid under Marriage Act as do not meet formal requirement. May also contravene some

aspects of s. 23B – eg consent, polygamy. - FCA can deal with child disputes and now, given Part VIIIAB, no real financial disadvantage via

lack of recognition…are there other reasons why they should be recognised? Is there a call for such recognition? (see 4.9) Does it involve an unwanted intrusion of “white man’s” regulation ?

State Welfare or “Care” Proceedings See [16.62-16.70] - In NSW proceedings brought under Children and Young Persons (Care and Protection) Act

1998 (NSW) – State saying child/ren in “need of care”. - Deals with welfare issues not crime. - Lengthy Statute – 263 sections - Proceedings not like family court (ie parent v parent/relative/interested person) but brought by

DOCS or parent with court making order re level of control over child by the state (DG of DOCs).

- s.34 Action by Director General. - Orders sought known as “care orders”, they can be : - Orders for undertakings - Supervision orders - Permanency Planning - Orders allocating parental responsibility - Grounds for making care orders s.71 - Finding re need for care and protection s.72 - Can make interim and final orders. - Process – who are the players? Representation s.99 - Proceedings unaffected by criminal proceedings. - After application (parent, DG (DOCs) or child) matter listed at court. - Directions, interim orders, Finding re need for C&P - Mention – if contested, further directions and hearing


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- Evidence by affidavits. - Effort to resolve other than hearing. Question 4 - Aboriginal Child Placement Principles – ATSI child should be Placed with Aboriginal family first,

then extended family/kinship group, then within aboriginal community BEFORE placing outside. - Embodied in s. 13 of Children and Young Persons (Care and Protection) Act 1998 (NSW) and

s. 35 of Adoption Act 2000 (NSW). - Contrast to past policies – stolen generations. Question 5 - Department of Community Services (DOCS) is the organisation that brings “care” proceedings

and investigates allegations re risk/abuse. - DOCS also investigate prospective adoptees of children. Question 6 - Unlike FLA proceedings, which are parent (or other) v parent as to where child should live and

who spend time with, “care” proceedings focus on whether child is in “need of care” – the state v parent/s.

- In worst cases, children found to be in need of care – risk or danger/neglect – with parent so removed from their care. DOCS then decides whether, if any time with parent . No s 60CC(2)(a) FLA type requirement.

- Is that right? What do you think? Question 7 FAMILY LAW ACT 1975 - SECT 69ZK Child welfare laws not affected (1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless: (a) the order is expressed to come into effect when the child ceases to be under that care; or (b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained. (2) Nothing in this Act, and no decree under this Act, affects: (a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or (b) any such order made or action taken; or (c) the operation of a child welfare law in relation to a child. (3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child. Adoption - Adoption Of children a STATE matter. States did not defer powers in this area. In NSW,

Adoption Act 2000 (NSW) (“AA”). Came into effect 1 December 2002. Revamp of Adoption of Children Act, 1965 – new provisions re Aboriginal and TSI children, “best interest principle”.

- FLA does apply re step-parent adoptions. Adoption Act 2000 (NSW) - S.23 – Jurisdiction – Ct. can make order for adoption of child “solely in favour of one person or

jointly in favour of a couple” Note couple defined – man and woman married or de facto. - S.24 of AA child under 18 can be adopted and person of 18 or more can be adopted if cared for

(“brought up, maintained and educated”) by applicant.


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Adoption – question 8 - S.26 of AA –who can adopt? person solely or jointly as couple. - Requirements re single people – s. 27, couples- s.28. Common requirements include age

minimum of 21, resident or domiciled in Australia, good repute and fit and proper person, must be at least 18 years older than the child. Couples must have lived together at least 3 years previously whether married or not.

- S. 31 – inter-country adoption.Proposed changes to Family Law Act – Marriage Legislation Amendment Act 2004 – ban gay couples from overseas adoption ) s. 111C(4A), s.111CA didn’t happen.

- Part 2 Deals with Placement of Children. - Div2 Aboriginal and Div.3Torres Strait Islanders Specifically ss32 –39 - Note s.35 Aboriginal Child Placement Principles. Placed with Aboriginal family first, then

extended family, then within aboriginal community BEFORE placing outside. - Part 3 - process for selection of Adoptive parents – s42 apply to DG of DOCs, s.45 assessed in

accordance with regs - Consent of both parents and any guardian required (s.52). Can be general consent (ie to any

adoptive parent/s selected by DG or specific consent ( ie adoption by specific person/s – relative, step parent, foster parent)

- S. 54 Consent can be waived if court directs or child over 18 or child is over 12 and has lived with adoptive parents for 5 years and gives consent.

- Where birth mother consents and no hearing has yet been held, birth father (BF) or person reasonably believed to be BF must be given opportunity to consent (s. 56).

Adoption – Question 9 - S.58 – reasons why consent not valid (inc. parent under 18 must get indep. legal advice –

58(4)) - S. 60 - Consent can’t be given unless child at least 30 days old and until 14 days after given

mandatory documents. - Counselling requirement before consent. - Specific provisions re consent where child Aboriginal or TSI - Consent can be dispensed with (s.67) – child’s best interests. Only court can do this. - Before making order court must be satisfied of certain things s.90 and must get report from

DOCs s91. - Revocation of consent period must have passed (s. 89). Revocation period is 30 days from

signing consent (s. 73).


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PARENTING ORDER – TEMPLATE

Step 1: FDR – s 60I FLA

Both Mark and Jane want to start proceedings straight away but before any proceedings can be

commenced, parties must undergo mandatory FDR pursuant to s. 60I FLA. They can come to their

own agreement and file consent orders or enter into a parenting plan (advantages/disadvantages).

Section 60I FLA states that requires all persons who want to apply for a parenting order to attempt

to resolve the dispute by family dispute resolution before applying.

Subject to s 60I(9) a court will not hear an application in relation to a parenting order unless the

applicant files a certificate by a family dispute resolution practitioner.

Ø Do any of the s 60I(9) Exceptions apply?

Could facts be said to come under 60I (9) exceptions (eg violence, abuse, urgency)?

(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

(a) the applicant is applying for the order: (i) to be made with the consent of all the parties to the proceedings; or (ii) in response to an application that another party to the proceedings has

made for a Part VII order; or (b) the court is satisfied that there are reasonable grounds to believe that: (i) there has been abuse of the child by one of the parties to the proceedings;

or (ii) there would be a risk of abuse of the child if there were to be a delay in

applying for the order; or (iii) there has been family violence by one of the parties to the proceedings; or (iv) there is a risk of family violence by one of the parties to the proceedings;

or (c) all the following conditions are satisfied: (i) the application is made in relation to a particular issue; (ii) a Part VII order has been made in relation to that issue within the period of

12 months before the application is made; (iii) the application is made in relation to a contravention of the order by a

person; (iv) the court is satisfied that there are reasonable grounds to believe that the

person has behaved in a way that shows a serious disregard for his or her obligations under the order; or

(d) the application is made in circumstances of urgency; or (e) one or more of the parties to the proceedings is unable to participate effectively

in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or


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(f) other circumstances specified in the regulations are satisfied. 60J Family dispute resolution not attended because of child abuse or family violence

60K Court to take prompt action in relation to allegations of child abuse or family violence SEE LEGISLATION PRINT OUTS

Arguably, the incident last Saturday could be used by Jane to justify a waiver but could be seen as

a one off? Mark can’t rely on his own violence to seek waiver but could he claim urgency?

(60I(9)(d)? Probably not likely to be seen as urgent but Mark should act soon to avoid “status quo”

building up of Jane as primary carer of both kids, limited time with him.

Ø Would seem that both parties could seriously benefit from FDR, but not fair on Jane if she

has fears.

Ø In determining parenting orders, court must have regard to the objects and principles (s.60B

FLA) and the best interests of the child will be the paramount consideration (s. 60CA). Best

interests determined with reference to primary considerations (s.60CC(2) and additional

considerations (60CC(3)).

S 61DA – Presumption of Equal Shared Parental Responsibility

Ø Each party wants to have sole control and limit time other parent has with children but s.

61DA says that each parent will have equal shared parental responsibility unless

circumstances come under one of the exceptions – abuse, family violence – or otherwise

not in best interests.

o Query whether the violence exhibited by Mark here enough to get around s.61DA –

not likely – one off, out of character. Mark could argue that Jane’s history of alcohol

abuse means her having joint PR not in kids’ best interests, but not a strong

argument on facts. No evidence of harm to kids or that she still has problem.

Parties had equal shared parental responsibility arrangement until recently...Is

change in kids’ best interests?

Conclusion: In this case it is unlikely/ likely that the court will apply the presumption of equal shared PR.


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If s 61DA Presumption Applies….then s 65DAA ‘Equal time or substantial and significant time’

Ø If 61DA presumption applies, court must, under 65DAA, consider equal time or substantial

and significant time for kids with parents unless not practicable (see factors in 65DAA(5)) or

not in best interests. 60CC factors applied to determine what is in best interests and the

form of any orders. This process confirmed in Goode v Goode (2006). Best interests

determined by looking at primary (60CC(2)) and additional (60CC(3)) considerations.

Primary Considerations s 60CC(2)

Ø Note s. 60CC(2) primary considerations – balance between maintaining relationship with

both parents and protecting children from harm.

Additional Considerations

Ø Court will go through additional consideration at s. 60CC(3) – their application will be

guided by the primary considerations and amplify them.

Ø 60CC(3)(a) – child’s views:

- Callum seems to have expressed views to both Mark and Jane about living with Mark. How will

court deal with these? Court must consider them (Harrison v Woollard (1995)) but must have

regard to maturity of child, the strength and duration of views expressed.

- No “magic age” when views hold more weight (B and B (1997)) but older the child, likely more

weight placed on views expressed (ZN v YH and Child’s Representative (2002)).

- Best interests will prevail over views expressed. Note James’ views also raise issues re

separation from siblings and relationship with others – relevant to other 60CC(3) factors below.

- Views expressed, child’s age may justify appointment of independent children’s lawyer (s. 68L) or ordering of psychologist/psychiatrist’s report (s. 68M).

Ø 60CC(3)(b) – relationship with others:

- parents and others (inc grandparents) (see text at 6.9.3).

- No presumption in favour of mother OR parent for that matter Rice v Miller (1993) KAM v MJR

(1999), Gronow (1980), Re Evelyn (1998).

- No presumption in favour of primary carer – both have shared that role on the facts – court will

assess whether in best interests for that to change.


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- Mark and Jane both work and had been in shared care arrangement which included 50/50

time. Strong relationship with both parents. Would living with one parent as primary care-giver

impact on kids’ relationship with the other? Look at 60CC(3)(c) below.

- Still on 60CC(b), separation from siblings – not generally seen as best interests (Hayman, H

and H (1994)) but could be if significant age difference or if child doesn’t get on with other

parent/parent’s partner etc. Mark unlikely to get a split of siblings – might be seen to work

against him to suggest it to Jane (maybe also relevant to 60CC(3)(f) and 60CC(3)(i) – showing

lack of awareness re kids’ needs).

Ø 60CC(3)(c) – willingness and ability to facilitate/encourage relationship with other

parent.

- Consistent with new 60B and the 60CC (2) Primary Considerations.

- Suggests party who does not facilitate/encourage will have that count against them.

- Jane’s expressed attitude to Mark and her attempts to block him out of the kids’ lives or at the

very least severely curtail their time with him wont help her here. Similarly, behaviour by Mark

suggesting he is not prepared to facilitate the kids’ relationship with Jane (ie his suggested

limited contact) may not help him either if not seen as justified in kids’ best interests.

Ø 60CC(3)(d) – change in circumstances.

- Widespread support of need for stability - Raby (1976) and Jurrs (1976) - gravity of disturbance

to status quo. Must be adequate reasons to disturb Marriage of Peters and Castuera (1994).

BUT no presumption in favour of status quo – best interests prevail. Note both parents were,

even after separation, taking a major role (indeed equal until recently) in care of kids. Is it in

best interests that this should change? Each party seems to be saying “yes” but in their

respective favour.

Ø 60CC(3)(e) – costs/difficulty of parties keeping relationship

- not a major issue in the facts (parties live close by) but any orders would have to take into

account working hours etc. facts suggest that each can accommodate care of kids despite

work.

Ø 60CC(3)(f) – capacity to provide:

- not just economic – emotional and other needs – as per 60CC(3)(b), no presumptions – both

seem economically able to meet needs – who best placed to meet emotional and other needs?


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- Mark could argue that Jane’s use of alcohol and her busy career as artist requiring travel etc

suggests he is better suited to meet children’s needs. Jane would need to show that she is

making accommodation in her lifestyle.

Ø 60CC(3)(g) – maturity, sex, background inc culture:

- no specific issues here, though note Callum is 11 – may add weight re wishes expressed

(60CC(3)(a)).

Ø 60CC(3)(h) – Aboriginal and TSI culture: not relevant.

Ø 60CC(3)(i) attitude to child and responsibilities of parenthood:

- Jane needs to know that matrimonial conduct (eg who leaves who, adultery etc) not relevant

except as impacts on child’s best interests – violence, abuse etc, relevant.

- This provision also relevant to Mark if, in front of the kids, he is repeating his comments about

the kids “should be with him” or making derogatory comments about Jane (Patsalou (1995) –

derogatory comments re spouse –irresponsible attitude, bad example). Also relevant if he is

knowingly allowing his parents to speak about Jane to kids in derogatory terms.

- If Jane is drinking to access around the children her behavior could be said to be irresponsible -

Lack of recognition of their needs, putting her own priorities/lifestyle first. Mark could also argue

that up until recently, she has been putting her work first above the kids needs. This may have

little weight given the more recent shared child care arrangement between the parties.

- Jane could argue that Mark’s willingness to split the kids could be argued to show lack of insight

on his part – putting his own interests over kids.

Ø 60CC(3)(j) –(k) Family Violence and family Violence orders:

- Protection from harm now elevated to primary consideration status as well.

- Doesn’t matter if children not direct victims - Jaeger’s case (1994) and Act doesn’t require this.

Note new definition of “family violence” (s.4(1)) – would court see Jane’s fear as “reasonable”

given the one off nature of the event?

- Possible s. 117AB costs orders if allegations made that cannot be proved. No FV

orders yet in place. If Jane has fears, she could get ADVO under Crimes (Domestic and

Personal Violence) Act 2007 (NSW) or seek protection under s. 68B FLA – ADVO a

cheaper, quicker remedy, particularly if taken out by police.

- SEE NOTES ON FAMILY VIOLENCE – UNACCEPTABLE RISK?


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Ø 60CC(3)(l) – order/s less likely to lead to further proceedings: - if Jane insists on limited time for kids with Mark, he could argue that this would only lead to

further proceedings down the track as he seeks to increase time as kids stay with him more

regularly and grow older.

Ø 60CC(3)(m) - Any other fact/circumstance: - Sexuality? Religion? Nothing in facts.

- Note, mum’s [possible alcohol abuse very relevant to overall need to protect children from harm

under s. 60CC(2)(b), but should it impact on level of care and potentially the relationship

between Jane and the kids (60CC(2)(a) given that they were sharing equally.

- Facts suggest neither side likely to get sole parental responsibility for long term decisions and

also suggest that equal time could well be ordered (note geographic proximity and ability to

both care present – 65DAA(5)) or at least substantial and significant time – more than what

each side is proposing the other has. Note though 65DAA(5)(c) – court will look at parties future

capacity to communicate to resolve difficulties. This may be an issue. Further counseling may

be ordered.

CONCLUSION


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PROPERTY ORDER – TEMPLATE

Process – Hickey (2003) Four steps confirmed in Hickey(2003).

1. Identify and value the prop and resources.

2. Assess contributions under s. 79(4)(a)-(c) [past].

3. Consider factors under s. 79(4)(d)-(g) including, as required by 79(4)(e), such of the s.

75(2) factors [‘future needs’] as are relevant.

4. Make orders that are ‘just and equitable’ (s. 79(2)).

Step 1 – Identify and Value Assets - Need to work out what assets there are. What will be taken into account?

Ø `needs to be full disclosure

- Both Mark and Jane are hiding assets (Jane and mark both have “secret accounts”) that must

be disclosed.

- Consequences of non-disclosure include costs orders (Weir(1993), Black and Kellner (1992)),

adverse inferences being drawn by the court re to value or existence of assets (Morrison

(1995)) or setting aside of any orders made pursuant to s. 79A FLA.

Ø Superannuation

- Superannuation will be regarded as property – 90MC FLA and form part of the asset pool.

Ø Inheritance

- Mark’s inheritance, like a personal injury payout, will not be ‘quarantined’ but included (Bonnici

(1991), Zubcic (1995). Issue is then becomes that of contribution to that asset.

Ø Protection of Super - Mark wants to “protect” super – he needs to know that super can be split (splitting order: s.

90MT(1)) or flagged (flagging order:s. 90MU(1).).

- Flagging order unlikely given vesting so far away in time.

- Court can make an order giving Jane such share of his super as it feels just and equitable: 0% -

100%. She can keep in Mark’s fund or transfer to her own.

- If Mark is to negotiate to keep his super, he may have to trade off other assets (eg share of

house). How super is dealt with will also be relevant to step 4 (just and equitable).


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Ø Valuation issues

- Must be based on evidence (Lenehan (1987)). Court will look at net value of total. Value is

value as at date of hearing.

Ø Potential Inheritance

- Potential inheritance not property except in limited circumstances (White v Tulloch and White) –

testator unable to change will, soon to die.

Ø Company’s assets– are they in the pool or does it belong to a third party?

- Is the company really the alter ego of Jane as per Ascot Investments v Harper (1981)? Even if

not, she is the only director and would seem to have sufficient control – can get order under

Part VIIIAA FLA (s. 90AE or, under 90AF a s. 114 injunction restraining company from

selling the studio property pending the resolution of the property settlement.

- If sale of studio to mother has gone ahead, James could seek to have it set aside under s.

106B FLA as the transfer would defeat a substantial part of any property claim by James

(Halabi (1993)) and mother would probably not be seen as bona fide purchaser (Abdullah

(1981))

- Assets will be net value but debt only relevant if liability established. Can “loan” to mother be

established (Biltoft,(1995)). Would seem that it would be difficult to establish as a loan as

mother never sought to enforce.

Step 2: Contribution Under s 79(4)(a)-(c)

- Court can take either global or asset by asset approach (Norbis (1986)).

- Might also take “two pools” approach as per Coghlan (2005) (eg, one pool is super and the

other the rest of the property) if one party’s super an unusually large proportion of property or in

complex fund or if large contribution made by one party prior to marriage.

- Asset by asset similarly applies where one party has brought in disproportionate contribution or

where significant part of property from that party’s contribution (ie pre-owned property, family

farm (Lee Steere (1985)).

- In Mark and Jane’s case, given they started on pretty much equal footing and although Mark

has super, it is not disproportionately large asset, nor acquired pre-marriage, a global approach

is likely.


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Ø S. 79(4)(a) – Financial contribution direct and indirect – Monetary gift on marriage by Mark’s parents likely to be seen as direct fin. contribution from

him unless Jane might try to argue it was intended as joint gift and therefore joint contribution

(Gosper (1987)).

– In any event, significance of early imbalance re contribution diminished over time by other

party’s contributions over the years (Crawford (1979), Money (1994), Lee Steere (1985),

Bremner (1995) Pierce (2003).

– Inheritances, redundancy are financial contribution.

– The $50,000 from Jane’s mum for studio – more gift (Jane’s contribution) than loan.

– Income of both parties applied over years is a direct financial contrib. Mark would argue his

contrib. greater initially in this regard. Jane would probably argue her financial contrib. greater

overall.

Special skill/contribution

- Jane could argue that she made a special contribution via her artistic skills.

- To be special there needs to be something unique about the skill (eg Whitely (1993) – his skill

as artist. Or JDL and DDF (2000) - H’s special skill in mineral exploration). Jane could say her

skill was like that of Whitely’s.

Non-financial contribution

- Both could perhaps argue that she made non-financial contribution by freeing Mark up to

further career, though this overlaps with her contrib. under s. 79(4)(c) .

o S. 79(4)(b) – Non-financial contribution direct or indirect - Relevant more to cases where one party has increased value of assets but not through

financial contribution – eg carried out renovations etc . Not too much relevance here.

o S. 79(4) (c) - 79(4)( c) - homemaker/parent - Seen as very significant (Rolfe (1979), Waters and Jurek(1995) – not token but substantial

recognition needed), esp. long marriages: Ferraro (1993). This is relatively long marriage here.

In early years of marriage, Jane’s domestic role “freed up” H. to work. Mark did similar in more

recent years. Can be both indirect fin. Contrib. under (a) and a “homemaker” contrib.


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Step 3: Future Needs – s 79(4)(d)-(g) - 79(4)(d), (f) and (g) not really relevant on facts BUT 79(4)(e) requires court to look at such of

the factors under s. 75(2) that may be relevant. Several of those factors are relevant here.

- It was then a matter of going down through the 75(2) factors and seeing which, on the facts,

might be relevant and how they could be argued to apply in favour of one or the other.

For example:

- 75(2)(a) – age, state of health – both parties of similar age, no real health issues impacting on

income.

- 75(2)(b) Income, property, financial resources ... capacity for gainful employment. o Jane would seem to be better off, requiring adjustment for Mark but now that Mark has

returned to workforce can he rebuild his earning capacity? Mark would say that his

absence from workforce and age have impacted on his employability but not likely.

Mitchell’s case (1995) showed court takes into account impact of long marriage on

spouse’s ability to get back into workforce.

- 75(2)( c) Care and control of child –

o whoever has the care of the kids of the marriage here is likely to get adjustment in

favour – child issue would be decided first. If 60% with Jane then if any adjustment

were made here it would be in her favour.

- Going down through other factors, not too many apply on the facts except perhaps 75(2)(l) -

o Protection re parenting role relevant to whoever remains in that role. Both are taking on

that role (though not equally) Mark could argue that even at 40% care this means that

he could not work like he used to and this will impact on future earnings.

- 75(2) (m) Fin. circs if cohabiting with another not relevant unless either have re-partnered.

Step 4: Orders must be just and equitable – s 79(2) - any orders the court makes must be just and equitable. See cases such as D and D (2006) and

McCulough (2006) – is the mix of assets in the split fair?

- If Mark is left with mostly non-liquid assets (eg super) this might not be seen as fair as it will not

vest for some time. Even if Jane wants to make sure house is kept so kids can live there, it

might not be possible – may have to be sold. Further, she may not be able to refinance to pay

out Marks’ share or take on mortgage anyway.


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Spousal maintenance

– possibly Mark could apply – threshold test under s., 72 is that of need on part of Mark (can

Mark adequately support himself) and capacity to pay on the part of Jane.

– 75(2) factors applied both re threshold and in determining amount – disparity income appears

to be only real area of income disparity (75(2)(b)). As indicated above, 75(2)(c) and (l) also

relevant to deciding whether Mark would be eligible and if so, how much.


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i Maree Livermore, The Family Law Handbook,(2007) 330 ii Ibid. iii Above n 1, 333 ivAbove n 1, 336 v Ibid. vi Above n 1, 364 vii Above n 1, 355 viii Above n 1, 356 ix Ibid.

LS370 Family Law Exam Notes -UNE

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