Australian Family Law: The Contemporary Context [2 ed.] 0195574338, 9780195574333

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2

AUSTRALIAN

FAMILY LAW THE CONTEMPORARY CONTEXT SECOND EDITION

belinda FEHLBERG rae kaspiew Jenni millbank fiona kelly juliet behrens

Australian

Family Law

Australian

Family Law

The Contemporary Context Second edition

Belinda Fehlberg Rae Kaspiew Jenni Millbank Fiona Kelly Juliet Behrens

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in Australia by Oxford University Press 253 Normanby Road, South Melbourne, Victoria 3205, Australia © Belinda Fehlberg, Rae Kaspiew, Jenni Millbank, Fiona Kelly & Juliet Behrens, 2015 The moral rights of the authors have been asserted. First published 2008 Second edition 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. National Library of Australia Cataloguing-in-Publication data Author: Fehlberg, Belinda, author. Title: Australian family law: the contemporary context / Belinda Fehlberg, Rae Kaspiew, Jenni Millbank, Fiona Kelly, Juliet Behrens. Edition: 2nd ISBN: 9780195574333 (paperback) Notes: Includes index. Subjects: Family law—Australia. Other Authors/Contributors: Kaspiew, Rae, author. Millbank, Jenni, author. Kelly, Fiona, author. Behrens, J. M. (Juliet M.), author. Dewey Number: 346.94015 Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email: [email protected] Edited by Valina Rainer Cover design by Jennai Lee Fai Cover image by Getty Images/Glowimages Text design by Jennai Lee Fai Typeset by diacriTech Proofread by Joy Window Indexed by Julie King Printed by Markono Printing Media Pte Ltd, Singapore Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Dedications From Belinda: To Gerry, Amy and Ted, and my parents Jan and Paul From Rae: For my family, who are my inspiration From Fiona: To Maia and my always supportive parents, Janice and Len Kelly From Juliet: To the other authors who kept this book alive when I was consumed with other things!

Contents Table of Cases XI Table of Statutes / International Instruments XXXIV Preface XLVII Abbreviations XLIX Acknowledgments LI

1 Introduction

1

1.1 Introduction 1.2 Themes 1.3 Structure of the book

1 1 7

2 Structural Fragmentation: The Constitutional Framework

9

2.1 Introduction 9 2.2 Family law and the Australian Constitution 10 2.3 How have Parliament’s powers been interpreted? 13 2.4 Extending Parliament’s legislative power 17

3 Mechanics of Fragmentation: The Jurisdictional Framework

25

3.1 Introduction 26 3.2 The Family Court of Australia 26 3.3 The Federal Circuit Court of Australia 29 3.4 Jurisdiction of the federal family law courts 31 3.5 Other courts exercising jurisdiction under the Family Law Act 52 3.6 The future of the federal family law courts 54 3.7 Case study: Jurisdictional overlap in child protection 60 3.8 Conclusion 71

4 The Legal Recognition of Family Relationships 4.1 Introduction 4.2 Recognition of adult partnerships 4.3 Who is a parent? 4.4 Conclusion

72 73 87 112 128

vii

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Contents

5

Family Violence

129

5.1 Introduction 5.2 Recent developments 5.3 What is family violence? 5.4 Scope, extent and the significance of context 5.5 A spectrum of severity: Recent Australian evidence and ­ implications for practice 5.6 Children and family violence 5.7 Family Law Act approaches Civil protection orders 5.8 5.9 Conclusion

144 151 154 160 174

6 Introduction to Parenting Disputes

176

6.1 Introduction 6.2 Gender roles and parenting in separated and intact families: Empirical evidence 6.3 Legal concepts relating to parenthood in Part VII: An historical overview 6.4 The contemporary Part VII framework 6.5 United Nations Convention on the Rights of the Child 6.6 Part VII: Current concerns 6.7 Conclusion

176

191 192 196 201 204

7 Processes for Resolving Parenting Disputes

206

7.1 Introduction 7.2 Sorting things out: Dynamics and issues 7.3 Participation of children and young people 7.4 Family Relationship Centres and other elements of the system 7.5 Alternative Dispute Resolution in family law: Development and debates 7.6 Court processes 7.7 Ongoing support 7.8 Conclusion

206 208 212 217

8

Framework and Principles for Decision Making in Children’s Matters

8.1 Introduction 8.2 Applying for parenting orders 8.3 How are parenting orders made?

129 131 133 138

179

221 244 254 257

259 260 261 263

Contents

8.4 The three-stage legislative pathway 8.5 After court orders are made 8.6 Conclusion

269 301 310

9 Specific Issues in Parenting Disputes

312

9.1 Introduction 9.2 Shared time: What are courts deciding? 9.3 Religion 9.4 Aboriginal and Torres Strait Islander children 9.5 Applications by people who are not parents 9.6 Parental mental illness 9.7 Disputes as to where a child will live 9.8 Conclusion

313 313 325 331 339 349 353 380

10 Introduction to Financial Disputes

382

10.1 Introduction 10.2 Understanding post-separation financial disadvantage 10.3 Wealth sharing within intact families and on relationship breakdown 10.4 Law and policy in relation to financial disputes on relationship ­breakdown: An overview 10.5 Conclusion

382 383 393 406 408

11 Child Support

410

11.1 Introduction 11.2 The CSS 11.3 The CSS: Preliminaries 11.4 The basic formula 11.5 Flexibility in the operation and application of the formula 11.6 Enforcement 11.7 Child support after the 2006–08 amendments: Research and evaluation 11.8 FLA child maintenance provisions 11.9 Conclusion

411 415 429 439 445 457 458 464 472

12 Processes for Resolving Property Disputes

475

12.1 Introduction 12.2 How do separating spouses and de facto couples work out their ­ property arrangements? 12.3 Dispute resolution processes

475 476 479

ix

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12.4 Mechanisms for giving effect to private agreement without ­ commencing property proceedings 12.5 Going to court 12.6 Conclusion

480 487 489

13 Legal Framework for Resolving Property Disputes

490

13.1 Introduction 13.2 Property division under the FLA: Preliminaries 13.3 Identification of existing legal and equitable interests of the ­ parties in their property 13.4 Is it just and equitable to make an order? 13.5 Identifying and assessing contributions 13.6 Consideration of additional matters 13.7 Is the result just and equitable? 13.8 Orders in section 79/90SM proceedings 13.9 After orders are made 13.10 Conclusion

491 492 507 515 517 529 539 540 543 547

14 Specific Property Issues in Property Disputes

548

14.1 Introduction 14.2 Allocating responsibility for financial losses and liabilities 14.3 Initial and post-separation contributions 14.4 Breadwinner contributions in high asset cases 14.5 Superannuation 14.6 Relevance of family violence to property outcomes 14.7 Financial agreements: Not so binding? 14.8 Conclusion

548 549 563 567 573 585 592 603

15 Maintenance for Spouses and de Facto Partners

604

15.1 Introduction 15.2 Working things out? Empirical evidence 15.3 Obtaining maintenance without going to court 15.4 Going to court 15.5 Legal framework: Twofold threshold test 15.6 Orders 15.7 After orders are made 15.8 Conclusion

605 611 613 614 617 637 645 646

16 Conclusion

649

17 Index

652

Table of Cases A, In the Marriage of [1998] FamCA 25  287 A & A [1998] FamCA 25  287–8 A & GS & Ors [2004] FamCA 967  373 A F Petersens, In the Marriage of (1981) 7 Fam LR 402  49 A v A: Relocation Approach [2000] FamCA 751  358 A v B and C [2012] EWCA Civ 285  86 AB v GB (No 2) [2005] FMCAfam 402; PAA v RJA [2006] FMCAfam 80  582 AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140  103 AB v ZB [2002] FamCA 1178  527 Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510  49 AC and Ors & VC and Anor [2013] FamCAFC 60 (AC & VC)  553 Adams & Simpson [2008] FMCA 1327  470 Adamson & Adamson [2013] FamCAFC 157  365 Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12  325 Agee and Agee [2000] FamCA 1251  377 Agius & Agius [2010] FamCAFC 143  564 Aitken & Deacon FMCAFam 35  93 Aitken & Murphy [2013] FamCA 3  520 AJO & GRO [2005] FamCA 195  556 Akston & Boyle [2010] FamCAFC 56  284 Albany, In the Marriage of (1980) 6 Fam LR 461  521 Aldridge & Keaton [2009] FamCAFC 229  115, 119–20, 127, 296–7, 339–40 Aldridge v Keaton (2009) FamCAFC 229  272 Alex, Re (Hormonal Treatment for Gender Identity Dysphoria) [2004] FamCA 297 37–9 Allen & Green [2010] FamCAFC 14  622 AM (2006) [2006] FamCA 351  470 AM, Re (Adult Child Maintenance) [2006] FamCA 351  468–9 Amador & Amador [2009] FamCAFC 196 (Amador)  282–3, 311 AMS v AIF [1999] HCA 26  358 Anderson, In the Marriage of [1999] FamCA 1026  485 Anderson & McIntosh [2013] FamCAFC 200  497 Andrew Meldrum Dawes Respondent/Husband and Elizabeth Wade Dawes Appellant/ Wife Appeal (Dawes) In the Marriage Of[1989] FamCA 71  523 xi

xii

table of cases

Anthony Milton Bonnici Appellant/Husband and Jacqueline Angela Bonnici Respondent/Wife, In the Marriage Of [1991] FamCA 86  525 Antmann, In the Marriage of (1980) 6 Fam LR 560  591 Application by JSC & RSC [2013] NSWSC 440  125 Aroney, In the Marriage of (1979) 5 Fam LR 535  510, 528 Aroney and Aroney (1979) FLC 90-709  619 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 (Ascot Investments)  26, 551, 553, 631 Ashton and Ashton (1982) 8 Fam LR 675  638 ASIC v Edensor Nominees Pty Ltd [2001] HCA 1  50 ASIC v Rich [2003] FamCA 1114  560 Astbury v Astbury (1978) 4 Fam LR 395 (‘Astbury’)  618 Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 (Marriage Act Case) 16 Attorney-General for the Commonwealth v Kevin & Jennifer [2003] FamCA 94  87 Attorney-General for the Commonwealth v Kevin and Others (Re Kevin) [2003] FamCA 94  102 Azelda Deslie Townsend Appellant/Wife and Anthony Clyde Townsend Respondent/ Husband Appeal (Townsend), In the Marriage of [1994] FamCA 144  554 B & B: Family Law Reform Act 1995 [1997] FamCA 33  308 B & B v MIMIA [2003] FamCA 451  41 B & B v Minister for Immigration, Multiculturalism and Indigenous Affairs [2003] FamCA 451, [289] (B & B v MIMIA)  40 B & J, In Re [1996] FamCA 124  121 B & J, Re [1996] FamCA 124  118 B and B, Re [2000] FamCA 734  621 B and B, Re Family Law Reform Act 1995 [1997] FamCA 33  353, 358 B and J [1996] FamCA 124  431 B and J (Artificial Insemination) [1996] FamCA 124  465 Baker v Commonwealth of Australia [2012] FCAFC 121  57 Balzano and Balzano [2010] FamCAFC 11  453 Bangi & Belov [2014] FamCA 8  505 BAR & JMR [2005] FamCA 1097  580 BAR & JMR, In the Marriage of [2000] FamCA 386 (BAR & JMR)  582 Baranski & Baranski and Anor [2012] FamCAFC 18 (‘Baranski’)  586 Barkly, In the Marriage of (1976) 1 Fam LR 11  585 Barry & Dalrymple [2010] FamCA 1271  92 Beaumont & Gardner [2013] FCCA 2282  613 Beck, W.T. and Beck, J.F., In the Marriage of (No 2) (1983) 8 Fam LR 340  619, 636

table of cases

Beck & Anor & Whitby & Anor [2012] FamCA 129  83 Beklar & Beklar [2013] FamCA 327  556 Bemert & Swallow (No. 2) [2009] FamCA 708  346 Bennett v Bennett, In the Marriage of (1991) 17 Fam LR 561  252 Bergman & Bergman and Ors [2009] FamCAFC 27  51–2 Bergman and Bergman [2009] FamCAFC 27  50 Bernadette, Re [2011] FamCAFC 50  36 Berrell & Berrell [2013] FamCA 676  514 Berrell & Berrell (No 3) [2013] FamCA 1012  483 Berry & James [2010] FamCAFC 58  484 Bertram-Power & Power [2013] FamCA 520  448 Best [1993] FamCA 107  529, 644 Bevan & Bevan [2013] FamCAFC 116 (Bevan)  482–3, 502–6, 513, 539, 555 Bevan [1993] FamCA 95  619–20, 623, 637 Bevan [2014] FamCAFC 19  503–4, 511, 516, 519 Bieganski [1993] FamCA 51  287 Bishop, In the Marriage of [2003] FamCA 240  50 Bishop & Bishop [2003] FamCA 240  52 Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647  433 Black & Black [2008] FamCAFC 7  595–6 BLH & HM v SJW & MW [2010] QDC 439  125 Bolger & Headon [2014] FamCAFC 27  518 Bondelmonte & Bondelmonte [2014] FamCAFC 29  626, 631, 640–1 Bostoi & Bostoi [2011] FamCAFC 132  352–3 Bracklow v Bracklow (1999) 169 DLR (4th) 577 (Bracklow)  610, 623, 644 Brady & Harris [2012] FamCA 420  98 Bremner [1994] FamCA 116  529 Brent Geoffrey Herbert Waters Appellant/ Husband and Mary Bohumila Jurek Respondent/Wife [1995] FamCA 101  529–30, 532–4, 585 Bretton & Bondai [2013] FamCAFC 168  306 Brianna & Brianna [2010] FamCAFC 97 (‘Brianna’)  115–17 Brown, In the Marriage of (2005) 33 Fam LR 377  536 Bryson v Bryant (1992) 16 Fam LR 112  523 Bulleen & Bulleen [2010] FamCA 187  567, 570 Burgess v Moss [2010] NSWCA 139  99 Burke, In the Marriage of (1992) 16 Fam LR 324  530 Burns & O (a solicitor) [2010] FamCAFC 124  350 Burton & Churchin [2013] FamCA 597  341 Burton & Churchin and Anor [2013] FamCAFC 180  344

xiii

xiv

table of cases

C, Re (No 2) (1992) 15 Fam LR 355  468–9, 471 C & B [2013] NSWSC 254  125 C & C [2005] FamCA 429 (Coghlan)  580–3 C & C [2005] FamCA 429 (Coghlan)  521 C & D [2004] FMCAfam 253  309 C & S  361 C and D, Re [1998] FamCA 98  340 C Pty Ltd and Ors & PGW as Liquidator of S Pty Ltd (In Liq) [2011] FamCAFC 231 51 Cahill v Cahill (Cahill) [2003] FamCA 172  582 Cales & Cales [2010] FamCAFC 237  364–5 Calverly v Green (1984) 155 CLR 242  561 Campano & Tenuta [2013] FMCAfam 230  457 Campbell,In the Marriage of (1987) 92 FLR 130  471 Cannon & Acres [2014] FamCA 104  59, 280, 290, 302 Cape & Cape [2013] FamCAFC 114  47, 368 Carlson & Bowden [2010] FamCA 432  343 Carlson and Ors t Bowden [2008] FamCA 1064  343–4 Carlton & Bissett and Anor [2013] FamCA 143  114, 122 Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631  617, 628–9 Carnell & Carnell [2006] FMCAfam 476  466 Caron v Caron (1987) 38 DLR 892  644 Carpenter, In the Marriage of [1994] FamCA 89  413 Carra & Schulz [2012] FMCAfam 930 (Carra)  277–8 Carson & Carson [1999] FamCA 53(Carson)  643 Cartas & Dennis [2014] FCCA 12  505 Caska and Caska [1998] FamCA 118  643 Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal, Re [1997] FamCA 27  528, 555, 623 CDJ v VAJ [1998] HCA 67  35, 303–4 Champness & Hanson [2009] FamCAFC 96  272, 280, 360 Chapman & Chapman [2014] FamCAFC 91  505 Chappell & Chappell [2008] FamCAFC 143  294 Charles & Charles [2007] FamCA 124  276 Child Support Registrar & Farley and Anor [2011] FamCAFC 207  433 Child Support Registrar v Z [2002] FamCA 182  434 Childers & Leslie [2008] FamCAFC 5  309 Christopher John Biltoft Cross-Appellant/Husband and Valentina Biltoft Respondent/ Wife Appeal (Biltoft), In the Marriage of [1995] FamCA 45  554 Church & T Overton [2008] FamCA 952  344–5

table of cases

Clauson [1995] FamCA 10  536, 621, 629, 634, 642 Clisbey & Viges [2011] FamCA 611  93 Clutterbuck & Tryon & Anor [2008] FMCAfam 784  346 Cohan & Cohan [2007] FamCA 1059  330 Collins, In the Marriage of (1990) 14 Fam LR 563  535 Collins & Andrews [2013] FCCA 1488  520 Collins & Tangtoi [2010] FamCA 878  122 Commissioner of Taxation & Worsnop and Anor [2009] FamCAFC 4 (Worsnop)  558, 560 Commonwealth v ACT [2013] HCA 55  9, 12, 17, 22–4 Connors & Taylor [2012] FamCA 207  119–20 Cooper & Cooper (1989) FLC 92-017  467 Copley & Copley [2010] FamCA 1023  638 Corbett v Corbett [1971] P 83  102–3 Cordell, In the Marriage of (1977) 3 Fam LR 11  591 Cormick, In the Marriage of; Salmon Respondent (1984) 156 CLR 170 (Cormick)  18, 23 Cosgrove (No 1), In the Marriage of (1995) 20 Fam LR 757  468 Cosgrove v Cosgrove (No 2) (1996) FLC 92-701  471 Cowling & Cowling [1998] FamCA 19  265–6 CP, Re (1997) 21 Fam LR 486  80–2 CP and TL Lee Steere, In the Marriage of (1985) 10 Fam LR 431  538, 564 Craig & Rowlands [2013] FamCAFC 45  582–3 Crapp, In the Marriage of (1979) 5 Fam LR 47  510, 631 Craven & Crawford-Craven [2008] FamCAFC 93  530 Cromwell and Cromwell [2006] FamCA 1454  538 Cross & Beaumont [2007] FamCA 123  538 D & C [2005] FamCA 1046  308 D v McA (1986) 11 Fam LR 214  91 Dahl & Hamblin [2011] FamCAFC 202  93 Daines & Daines [2014] FamCAFC 61  512 Danes & Danes [2013] FMCAfam 281  79, 346 Danford & Danford [2011] FamCAFC 54  526 Davida & Davida [2011] FamCAFC 38  530, 564 Dawes [1989] FamCA 71  524, 527 Dawn Lynette Stay (Appellant/Wife) and Graeme Bruce Stay (Respondent/Husband) [1997] FamCA 20  569 Dawson & Dawson [2012] FamCAFC 22  617, 642 Day & Day (1993) FLC 92-333  467

xv

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table of cases

De L v Director-General Department of Community Services (NSW) [1996] HCA 9  371, 376 De Sales v Ingrilli (2002) 212 CLR 338  631 D’Emden v Peder (1901) 1 CLR 91  12 Deniz, In the Marriage of [1977] FLC 90-252  107 Dennis & Pradchaphet [2011] FamCA 123  122 Department of Communities, Child Safety and Disability Services & Garning and Ors (Stay Pending Discharge Application) [2012] FamCA 699  371, 379 Department of Communities, Child Safety and Disability Services & Garning (No. 2) [2012] FamCA 353  379 Department of Communities (Child Safety Services) & Garning [2011] FamCA 485 379 Department of Communities (Child Safety Services) & Garning [2012] FamCA 342 379 Department of Community Services & M and C and Anor [1998] FamCA 1518  378 Department of Family and Community Services & Raho [2013] FamCA 530  378 Department of Human Services & Brouker [2010] FamCA 742  109 Dept of Communities (Child Safety Services) & Lugge [2012] FamCA 67  376 Dickons & Dickons [2012] FamCAFC 154 (Dickons)  518–19, 523, 563, 565–6 Dicosta & Dicosta [2008] FamCAFC 161  269, 291 Director-General, Department of Child Safety & Milson [2008] FamCA 872  372 Director-General, Department of Families v RSP [2003] FamCA 623  376 Director-General, Department of Families, Youth & Community Care v Bennett [2000] FamCA 253  373, 378 Director-General, Department of Family and Community Services & Raddison [2012] FamCAFC 41  373 DJ and AJ [2006] FamCA 961  532, 580, 582 DJM v JLM [1998] FamCA 97  556, 618, 627–8, 630–1, 641 DJS and SJS and Child Representative [2005] FamCA 1006  59 Dodge & Krapf & Krapf (1991) FLC 92-214  467 Doherty, In the Marriage of (1995) 20 Fam LR 137  585 Donald Vincent Morrison Appellant/Husband and Pamela Marlene Morrison Respondent/Wife Appeal [1994] FamCA 153  544 Donnell & Dovey (2010) 42 Fam LR 559  82, 336–7, 342 Dougherty v Dougherty (1987) 163 CLR 278  550 DP v Commonwealth Central Authority [2001] HCA 39  371, 375 Dridi v Fillmore [2001] NSWSC 319  99 DRP & AJL [2004] FMCAfam 440  434, 467 Drysdale & Drysdale [2011] FamCAFC 85 (‘Drysdale’)  624 Drysdale [2011] FamCAFC 85  625–6

table of cases

Dudley and Anor & Chedi [2011] FamCA 502  122–3 Dudley and Chedi [2011] FamCA 502  122 Duff, In the Marriage of [1977] FLC 90-217  508 Duke-Randall & Randall [2014] FamCA 126  355 Duncan & Duncan (1991) FLC 92-218  467 Duncan & Dylan [2012] FamCA 430  294 Dundas & Blake [2013] FamCAFC 133  294 Dunstan & Jarrod [2009] FamCA 480  297 E A and E M Grimshaw; J A and H L Arkcoll (First Interveners); G Stevens (Second Intervener), In the Marriage of (1981) 8 Fam LR 346  326, 328 Eddington & Eddington [2007] FamCA 1299  299 Edwards & Edwards [2009] FamCAFC 139  580, 582 Edwards & Granger [2013] FamCA 918  281–2, 284 EJK & TSL [2006] FamCA 730  46 Elaine Fay Gyselman Applicant/Wife and Robert George Gyselman Respondent/ Husband, In the Marriage of [1991] FamCA 93  448–9 Eleni (Aka Helen) Prowse Appellant/Wife and Geoffrey John Prowse Respondent/ Husband, In the Marriage of [1994] FamCA 150  544 Eliades, In the Marriage of (1980) 6 Fam LR 916  617, 632 Ellison and Anor & Karnchanit [2012] FamCA 602  117, 122, 125 Elspeth and Peter & Ors [2007] FamCA 655  329 Elspeth and Peter [2006] FamCA 1385  328–9 EMC, Re [2012] NSWSC 1626  125 Escott & Lowe [2007] FamCA 307  269, 272, 290 Evans, In the Marriage of (1978) FLC 90-435  618 F, In Re (Hague Convention: Child’s Objections) [2006] FamCA 685  373 F, In the Marriage of (1982) 8 Fam LR 29  645 F, Re (1982) 8 Fam LR 29  635 F, Re (1986) 161 CLR 376  15, 18, 23 F, Re Ex parte F (1986) 161 CLR 376  14 F, Re (Hague Convention: Child’s Objections) [2006] FamCA 685  377 F, Re Litigants in Person Guidelines [2001] FamCA 348  58–9, 351 Falconio & Anor & Conchita [2009] FamCA 1323  48 Farmer and Bramley (2000) 27 Fam LR 315  525, 534, 537, 566 Farmer and Bramley, In the Marriage of [2000] FamCA 1615  523 Fayza Bourham Chemaisse Appellant/Wife and the Commissioner of Taxation First Respondent/Intervener and Bourham Chemaisse Second Respondent/Husband [1990] FamCA 32  554 Fencott v Muller (1983) 152 CLR 570  49

xvii

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table of cases

Fenton & Marvel [2012] FamCAFC 150  93 Ferguson, In the Marriage of (1978) 4 Fam LR 312  636 Ferraro [1992] FamCA 64  520, 523–4, 526–8, 537, 568, 572 Fevia & Carmel-Fevia [2009] FamCA 816  593, 595, 597 Figgins & Figgins [2002] FamCA 688 (Figgins)  522, 537, 569–71 Firth & Hale-Forbes [2013] FamCA 334  448 Firth [1988] FamCA 10  331 Fisher, In the Marriage of (1990) 13 Fam LR 806  585 Fisher v Fisher (1986) 161 CLR 438  17, 23 Fisher-Oakley & Kittur [2014] FamCA 123  124, 126 Fm (Husband) and Fm (Wife) [1996] FamCA 120  469 Forsythe & Latimer & Anor [2010] FMCAfam 478  434 Frampton & Frampton [2007] FMCAfam 914 (Frampton)  601–2 G & G (2004) FamCA 1179  519 G and G, In the Marriage of (1984) FLC 91-582  527 G v H (1994) 181 CLR 387  116 Gabini v Gabini [2014] FamCAFC 18  511 Galloway & Midden [2014] FamCAFC 22  511 Gamble and Gamble (1978) 4 Fam LN 28  467–8 Garden & Gavin (No. 2) [2010] FamCAFC 125  545 Garning & Department of Communities, Child Safety and Disability Services [2012] FamCA 354  379 Garning & Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839  379 Garning & Department of Communities, Child Safety and Disability Services (No 2) [2012] FamCA 482  379 Garning & Dept of Communities (Child Safety Services) [2012] FamCAFC 35  379 Garning & Director-General, Department of Communities, Child Safety and Disability Services and Ors (Discharge of Return Order) [2012] FamCA 565  379 Garning v Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839  379 Gaye Robb Appellant/Wife and David John Robb Respondent/Husband Appeal, In the Marriage of [1994] FamCA 136  527 Gebert, In the Marriage of (1990) 14 Fam LR 62 (Gebert)  484, 486 Genish-Grant & Director-General Department of Community Services [2002] FamCA 346 375 Gillee & Gillee [2010] FamCA 1141  287 Gillespie v Bahrin [1993] FamCA 54  263 Gillick v Norfolk Area Health Authority (Gillick) [1985] UKHL 7  36

table of cases

Gilmore and Gilmore, In the Marriage of (1993) 16 Fam LR 285 (‘Gilmore’)  45 Godfrey & Sanders [2007] FamCA 102  359 Gollings & Scott [2007] FamCA 397  508 Goode v Goode [2006] FamCA 1346 (Goode)  260, 264–7, 270, 291, 295, 297–8, 310, 320, 361, 483 Goodridge v Department of Public Health 798 N.E. 2d 941 (Mass. 2003)  104 Gosper, In the Marriage of (1987) 11 Fam LR 601  525 Gould & Gould [2010] FamCAFC 197  538 Graziano & Daniels (1991) 14 Fam LR 697  378 Greenwood v Merkel [2004] NSWSC 43  94 Grimshaw-Grieves and Grieves [2011] FMCAfam 125  638 Gronow v Gronow [1979] HCA 63  35, 303 Groth & Banks [2013] FamCA 430  123–4, 348, 431 GWW and CMW, In the Marriage of (1997) 21 Fam LR 612  37 H, In the Marriage of (1981) 7 Fam LR 355  468, 470 H & H [2003] FMCAfam 31  325–6, 330 H & H (1998) FamCA 7  328 H & H (2005) 32 Fam LR 552  528, 555 H v MIMA [2010] FCAFC 119  114 Hadley & Pock [2011] FMCAfam 117  117 Hallas & Kefalos [2012] FamCA 860  109 Hamilton & Thomas [2008] FamCAFC 8  563 Hammond & Chapman [2013] FCCA 851  323, 325 Hampson & Bailey [2013] FCCA 1004  454 Hardie & Capris [2010] FamCA 1046  294 Harridge and Anor & Harridge and Anor [2010] FamCA 445  286 Harris, In the Marriage of (Harris) (1991) 15 Fam LR 26  523 Harris & Calvert [2013] FCCA 955  119, 340 Harris & Duerr [2014] FamCA 127  363 Harris & Harris [2011] FamCAFC 113  376 Harris v Caladine (1991) 172 CLR 84  29, 243, 485–6, 524 Harrison & Cawley [2013] FCCA 1594  520 Harrison and Woollard (1985) 18 Fam LR 788  289 Harry & Barndon [2013] FCCA 1616  127 Haughton & Ors v Arms [2006] HCA 59  50 Hayson, In the Marriage of [1987] FamCA 13  638–9 Hearn & Woolcott [2014] FamCA 42  485–6 Heeks, G.B. and Heeks, J.M., In the Marriage of [1980] FLC 90-804 (Heeks)  634 Henderson, In the Marriage of (1989) 13 Fam LR 40  467, 471

xix

xx

table of cases

Henry v Henry (1996) 185 CLR 571 (‘Henry’)  45 Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395 (Hickey)  501–2, 576, 581 Hirst and Rosen (1982) FLC 91-230  619 Hoffman & Hoffman [2014] FamCAFC 92 (Hoffman)  522, 571–2 Holman & Bailie and Anor [2012] FamCA 827  127 Hope, In the Marriage of [1977] FLC 90–294 (Hope)  615 Hope [1977] FLC 90-294  632 Hort & Verran [2009] FamCAFC 214  83, 337–8, 343 Hosking, In the Marriage of [1994] FamCA 87  107 Hoult & Hoult [2013] FamCAFC 109 (Hoult)  596–9, 603 House v The King [1936] HCA 40  35, 303 Houston v Butler [2007] QSC 284  94 HR & HJ [2003] FMCAfam 31  336 HRDW & HSJL [2005] FamCA 676  581 Hughes & Hughes [2014] FamCA 12  45 Hunt & Planey [2013] FamCAFC 160  365 Husseyin Mulla Mehmet Appellant and Fatma Mehmet Respondent Appeal, In the Marriage of [1986] FamCA 24  527 Hutley & Hutley [2012] FamCA 679  273, 295 Hyde v Hyde (1866) LR 1 P&D 130  23 HZ & State Central Authority [2006] FAMCA 466  372, 376–7 IABH & HRBH [2006] FamCA 379  515 Inaya, Re (Special Medical Procedure) [2007] FamCA 658  37–8 Ireland, In the Marriage of (1986) 11 Fam LR 104  49 Irving & Irving [2013] FamCA 962  545 J & G [2000] FMCAfam 8  328 Jacks & Samson [2008] FamCAFC 173  345 Jacobson, In the Marriage of (1988) 12 Fam LR 828  565 James Michael Redman Appellant and Yvonne Annette Redman Respondent Appeal, In the Marriage of [1987] FamCA 2 (Redman)  624 Jamie, Re [2013] FamCAFC 110  36, 38–40 Jamie, Re (Special Medical Procedure) (Re: Jamie) [2011] FamCA 248  36, 39 Jamine & Jamine & Anor (No 2) [2011] FamCA 843  469 JEL and DDF [2000] FamCA 1353  522, 528, 536, 567, 569–70, 572 JLM v Director-General NSW Department of Community Services [2001] HCA 39 371 Joanne Michelle Biegnaski Appellant and Michelle Biegnaski Responent Marriage of [1993] FamCA 51  287

table of cases

John Frank Bevan Appellant/Husband and Merrien Denise Bevan Respondent/Wife, In the Marriage of [1993] FamCA 95 (Bevan)  471, 617 John Oswald Turnbull Respondent/Husband and Catherine Anne Turnbull Applicant/ Wife John Richard Turnbull Bald Hills Pty Ltd Allans Water Pty Ltd Apropos Pty Ltd Interveners, In the Marriage of [1990] FamCA 157  514 Johnetta & Patsiokis [2012] FamCA 1145  323 Johnson, In the Marriage of (1997) 22 Fam LR 141  58–9 Johnson and Johnson [1999] FamCA 369  558 Johnson and Knight [2014] FamCA 107  363 Johnson v Page [2007] FamCA 1235  284, 286 Jonah & White [2012] FamCAFC 200  93–4, 96 Jonah & White (2011) FamCA 221  94–5 Jonas & May [2010] FamCA 551  613 Jones v Skinner (1835) 5 LJ Ch 90  508 Joseph Pellegrino and Ornella Pellegrino [1997] FamCA 52  525 JT and ML Collins, In the Marriage of (1977) 3 Fam LR 11  540 Jurd v Public Trustee [2001] NSWSC 632  99 K, Re (1994) 17 Fam LR 537  252 K v K (1979) 5 Fam LR 179  328 K v K (Relocation: Shared Care Arrangement) [2011] EWCA CIV 793  355 KAM & MJR and Anor [1998] FamCA 1896  127, 339 Kane and Kane [2013] FamCA 205 (Kane)  518, 563, 571 KB & TC [2005] FamCA 458  305 Keane & Keane and Ors [2013] FamCA 332  451, 453–4 Keene &Scofield (No. 2) [2013] FCCA 1107  95 Kelly (No 2) (1981) 7 Fam LR 762  511, 631 Kelly, In the Marriage of (No 2) (1981) 7 Fam LR 762  510, 631 Keltie & Keltie & Bradford [2002] FamCA 421  466–7 Kennon [1997] FamCA 27  529, 532, 534, 585–7, 589–91, 632, 637 Kessey, In the Marriage of (1994) 18 Fam LR 149  525 Kevin, Re [2003] FamCA 94  23, 102–3 Kiesinger & Paget [2008] FamCAFC 23  619–20, 640 Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 375 Kilah & Director-General, Department of Community Services (No. 2) [2008] FamCAFC 122  372 King and Finneran [2001] FamCA 344 (Collier 5)  305 Kostres & Kostres [2009] FamCAFC 222  592 Kouper & Kouper (No. 3) [2009] FamCA 1080  555–7

xxi

xxii

table of cases

Kowaliw, J.I. and Kowaliw, A.G., In the Marriage of (1981) FLC 91-092 (Kowaliw) 555–6 Kowaliw and Kowaliw (1981) FLC 91-092 (Kowaliw)  513, 558, 591 Kowalski (1991) 16 Fam LR 235  565 Kreet & Sampir [2011] FamCA 22  109 Lanceley and Lanceley [1994] FamCA 94  542 Lane v Morrison (2009) 239 CLR 230  56 Lang, In the Marriage of (1976) 25 FLR 130  632 Lansell v Lansell (1964) 110 CLR 353  13, 15 Laracy & Laracy [2013] FamCA 61  323 Lasic [2009] FamCAFC 64  562 Lavender & Turner [2007] FamCA 182  266 Lemnos & Lemnos [2007] FamCA 1058  558, 560 Lemnos [2009] FamCAFC 20  562 Leo & Hanson [2010] FAMCA 321  343 Letsos & Vakros [2009] FMCAfam 897  346 Levine & Levine [2011] FMCAfam 821  434 Levy & Prain [2012] FamCAFC 92  543 Linch & Linch [2014] FamCAFC 69  565 Linder & Linder [2013] FamCA 988  513 LK v Director General, Department of Community Services [2009] HCA 9  374 LK v Director-General, Department of Community Services [2008] HCA 12  370–1 Logan & Logan [2013] FamCAFC 151  599 Longer & Longer [2013] FMCAfam 257 (Longer)  278–9 Lorne & Trott [2012] FamCA 976  613 Lovett & Xavier and Anor [2014] FamCA 49  541 Lovine & Connor and Anor [2012] FamCAFC 168  518 Lucy, Re (Gender Dysphoria) [2013] FamCA 518  36, 38–9 Lutzke, In the Marriage of (1979) 5 Fam LR 553  633 M & M [2006] FamCA 913  583–4 M and S [2006] FamCA 1408  272, 358 M v H (1993) 17 Fam LR 416  19 M v M [2006] FamCA 868  583, 622 M v M (1988) 166 CLR 69  283–6 Madley & Madley [2011] FMCAfam 1007  109 Magill v Commonwealth of Australia [2006] VCC 1395  434 Magill v Magill (2006) 226 CLR 551  434–5 Maher & Maher [2012] FMCAfam 147  471

table of cases

Mahoney & Barrow [2013] FCCA 1793  317 Malcolm & Monroe [2011] FamCAFC 16  341 Malcolm and Malcolm (1977) FLC 90-020  638 Mallet v Mallet (Mallet) (1984) 156 CLR 605  514, 519, 522–3, 527, 565, 567, 570 Maluka and Maluka [2011] FamCAFC 72  7 Mancini & Hodges [2013] FCCA 1392  613 Manna Unreported, Family Court of Australia  585 Manolis & Manolis (No 2) (Manolis) [2011] FamCAFC  539 Marchant & Marchant [2012] FamCAFC 181  541, 543 Marion, Re (No. 2) (1992) 17 Fam LR 336  37 Mark, Re [2003] FamCA 822  114, 121, 123 Mark John Money Appellant/Husband and Jennifer Anne Money Respondent/Wife [1994] FamCA 54 (‘Money’)  564 Maroney and Maroney [2009] FamCAFC 45  626 Marquis & Marquis [2012] FamCA 137  108 Marriage Act Case (1962) 107 CLR 529  18, 23 Marriage of Joannou (1985) FLC 91-642  289 Marriage of P and P [1997] FLC 92–790  119 Marsden & Winch [2009] FamCAFC 152  305 Marsden & Winch [2012] FamCA 557  288 Marsden & Winch [2013] FamCAFC 177  288 Marsden & Winch (No 3) [2007] FamCA 1364  272 Marsh & Marsh [2014] FamCAFC 24  518, 523, 534, 563, 566 Martin & Newton [2011] FamCAFC 233  505 Marvel & Marvel (No 2) [2010] FamCAFC 101  201, 263, 265, 267, 297 Mason & Mason [2013] FamCA 424  122–3 Masoud & Masoud [2013] FamCA 763  448 Masterton & Masterton & Anor [2012] FMCAfam 913  467–8, 470–1 Matthews v Millar (1988) 12 Fam LR 205  308 Maunder, In the Marriage of (1999) 25 Fam LR 579  112 Maurice & Barry [2010] FamCA 687  115–16, 120 Mayne & Mayne (No. 2) [2012] FamCAFC 90  584 Mayne and Mayne [2011] FamCAFC 192  557 Mazorki & Albright [2007] Fam 520  275 Mazorski & Albright [2007] FamCA 520  271 McAllister & Day [2012] FMCAfam 863  363–4 McBain and the State of Victoria [2000] 99 FCR 116  12 McCall & Clark [2009] FamCAFC 92  360 McCall & Clark [2009] FamCAFC 92  274–5, 298, 359–60

xxiii

xxiv

table of cases

McCormack & McCormack & Anor and Peakes & Peakes & Anor [2009] FMCAfam 1250 495 McDonald & Director-General, Department of Community Services [2006] FamCA 1400  372–3, 376 McFarlane v McFarlane [2006] UKHL 24  624 McGee & Kerr [2013] FCCA 402  520 McGregor and McGregor [2012] FamCAFC 69  7, 188 McKay, In the Marriage of (1984) 9 Fam LR 850  49 McLeod and McLeod [1976] FLC 90-073  521 McMahon and McMahon (1995) 19 Fam LR 99  520 McMaster & Wyhler [2013] FamCA 989  99 Mee and Ferguson, In the Marriage of [1986] FamCA 4  417 Melrose & Melrose [2010] FamCA 398  273 Melrose & Melrose [2012] FamCA 398  290 Mercer, In the Marriage of (1976) 1 Fam LR 11  466–7 Michael, Re [2009] FamCA 691  115 Michael, Re Surrogacy Arrangements [2009] FamCA 691  122 Miller; McFarlane [2006] 2 AC 618  514, 644 Milton & Milton [2012] FamCA 202  325 MIMIA v B (2004) 219 CLR 365  35, 41–2, 65–6 Minister for Immigration, Multiculturalism and Indigenous Affairs v B (MIMIA v B) (2004) 219 CLR 365  40 Mitchell [1995] FamCA 32  619, 621–3, 643–4, 646 MM and KF [2012] NSWSC 44  125 Moby & Schulter [2010] FamCA 748  95 Moby & Shulter [2010] FamCA 748  94 Moge v Moge (1993) DLR (4th) 456  610, 623, 644 Moose & Moose [2008] FamCAFC 108  280, 302 Morcombe v Preston [2010] FAMCA 165  288 Morgan & Miles [2007] FamCA 1230  364 Morgans Miles [2007] FamCA 1230  360 Morrison, In the Marriage of [1994] FamCA 153, [32] (Morrison)  485 Morrison [1994] FamCA 153  486 Mortone v Mortone [2011] FamCA 309  288 MRR v GR [2010] HCA 4  361 MRR v GR (2010) 240 CLR 461  264, 299–300 Mullane v Mullane (1983) 158 CLR 436  543, 643–4 Mulvany and Lane [2009] FamCAFC 76  340–1, 346–8 MW v Director-General, Department of Community Services [2008] HCA 12  371–2

table of cases

N (No 2) (1981) 7 Fam LR 889  326 N and ML Johnston [1997] FamCA 32  351 N Appellant/Wife and S Respondent/Husband and the Separate Representative [1995] FamCA 139  284 Nagri & Chapal [2012] FamCA 464  109 Navarro & Jurado [2010] FamCAFC 210  112 Nettler & Nettler [2009] FamCAFC 185  530 Nguyen v Nguyen [1990] HCA 9  35 NHC & RCH [2004] FamCA 633  556 Nixon, JAW and Nixon, SJ-L(Nixon) [1992] FLC 92-308  633 Noll & Noll and Anor [2013] FamCAFC 24  50–2, 596 Norbis (1986) 161 CLR 513  518, 520, 522, 567 Norbis [1986] HCA 17  544, 568, 571 Norma Jill Mitchell Appellant/Wife and Anthony Lewis Mitchell Respondent/Husband [1995] FamCA 32  471, 508, 618–19 Norman and Norman [2010] FamCAFC 66  502 North & North [2010] FamCA 306  295–6 Northern Territory v GPAO (1999) 196 CLR 553  12 Norton & Locke [2013] FamCAFC 202  91, 543 Nova & Nova [2012] FamCA 152  486 NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11  103 Nutting, In the Marriage of (1978) FLC 90-410  618 Oates & Crest [2008] FamCAFC 29  606, 639–40 O’Connor & Kasemsarn [2010] FamCA 987  122 O’Dempsey & van Ray [1990] FLC 92-177  471 Official Trustee in Bankruptcy v Mateo (2003) [2003] FCAFC 26 (Mateo)  562 Oldfield & Oldfield [2012] FMCAfam 22  79, 346 Oliver, In the Marriage of (1977) 4 Fam LR 252  468 O’Shea, In the Marriage of (1987) 12 Fam LR 537  575 Osman and Mourrali, In the Marriage of (1990) FLC 92-111  107 P & P (1997) 141 FLR 214  115 P & W [2005] FamCA 1303  532 P and L [2006] FamCA 947  326 P v P (1994) 181 CLR 583  16–17, 37, 42–3 PA and JA Litchfield, In the Marriage of (1987) 11 Fam LR 435  328 Paisio, In the Marriage of (No 2) (1978) 5 Fam LR 281  325–6 Palmer & Palmer [2012] FamCAFC 159  586 Panshin & Farmer [2012] FamCAFC 197  543

xxv

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table of cases

Papageorgio & Nicolau [2014] FamCA 31  361 Parij v Parij (1997) 72 SASR 153  523 Parker & Parker [2012] FamCAFC 33  597 Parkin & Sykes [2012] FamCA 187  295 Parkin & Sykes [2013] FamCAFC 87  294–5 Pascarl & Oxley (edited) [2013] FamCAFC 47  46 Pascot & Pascot [2011] FamCA 945  601–2 Pastrikos (1979) 6 Fam LR 497  502 Pastrikos, In the Marriage of (Pastrikos) (1979) 6 Fam LR 497  501 Patching (1995) 18 Fam LR 675  484, 486, 544 Patrick, Re [2002] FamCA 193  84–5, 121, 348, 431 Paul & Paul [2012] FamCAFC 64  468 Pavey, In the Marriage of (Pavey) (1976) 1 Fam LR 11  111 Pavey & Pavey (1976) FLC 90-051  93, 111 Payne & Payne [2009] FamCAFC 13  352, 355 Pelech v Pelech [1987] 1 SCR 801  610 Pelech v Pelech (1987) 38 DLR 641  644 Pelerman, In the Marriage of [2000] FamCA 881  485 Peter & Elspeth [2009] FamCA 551  328–9 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (Philip Morris) 49–50 Pierce & Pierce (Pierce) [1998] FamCA 74  564 Pilot & Pilot [2008] FamCAFC 206  645 PJM & STM [2005] FamCA 1245  582 Plows, In the Marriage of (No 2) (1979) 5 Fam LR 590  326 Polites & Stathos [2013] FamCA 1002  317 Polonius & York [2010] FamCAFC 228  520, 523, 534–5, 554–5 Pope & Pope [2012] FamCA 204  508, 515, 580 Potts v Bims and Ors [2007] FamCA 394  297, 340, 345 Prantage & Prantage [2013] FamCAFC 105  35 Pratt & Pratt [2012] FamCAFC 81  540 Preston & Maine [2013] FamCA 393  496 Prewett & Mann [2013] FamCAFC 130  305 Price & Underwood [2008] FamCAFC 46  111 Prince, In the Marriage of (1984) 9 Fam LR 481  49 Prior v Prior [2002] FamCA 327 (Prior)  484, 486 Pritchard, In the Marriage of (1982) 8 Fam LR 505  638 Prowse, In the Marriage of [1994] FamCA 91 (Prowse)  486 Puddy & Grossvard and Anor [2010] FamCAFC 54  52 Purkess v Crittenden (1965) 114 CLR 164  598

table of cases xxvii

R, In the Marriage of (Children’s Wishes) [2002] FamCA 383  289 R, Re [2003] EWHC 1986  375 R, Re (Child Abduction: Acquiescence) (1995) 1 FLR 716  377 R & BH [2006] FamCA 919  305 R & J & Anor [2006] FamCA 1398  84 R & J and Anor [2006] FamCA 1398  348 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452  49 R v Cook; Ex parte C (1985) 156 CLR 249  18 R v Dovey; Ex Parte Ross (1979) 141 CLR 526  543, 551 R v Lambert; Ex parte Plummer (1980) 146 CLR 447 (Lambert)  16 R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504  48 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185  31 R v Watson; Ex parte Armstrong [1976] HCA 39  517 Radcliffe & Sayer and Anor [2012] FMCAfam 342  127 Ramsay v Ramsay (1997) 137 FLR 40  508, 514 Ray and Anor & Males and Ors [2009] FamCA 219  65 RCB (as Litigation Guardian of EKV, CEV, CIV AND LRV) v The Honourable Justice Forrest and Ors [2012] HCA 47; (2012) 247 CLR 304  377 RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest [2012] HCA 47  379 Re F (Children) (Internal Relocation) [2010] EWCA Civ 1428  355 Rebecca Miriam Zyk Appellant/Wife and David Zyk Respondent/Husband [1995] FamCA 135  520 Redman and Redman, In the Marriage of [1987] FamCA 2 (Redman)  625 Reiby & Meadowbank & Anor [2013] FCCA 2040  348–9 Renata Ferraro Appellant/Wife and Ruggero Ferraro Respondent/Husband, In the Marriage of [1992] FamCA 64, [207] (‘Ferraro’)  491, 567 Rest v Petrodel Resources Limited and Others [2013] UKSC 34  551 Rhonda Evelyn Napthali Appellant/Wife and Geoffrey Napthali Respondent/ Husband Appeal, In the Marriage of [1988] FamCA 9  523 Ricci & Jones [2011] FamCAFC 222  92, 95 Rice and Asplund, In the Marriage of (1978) 6 Fam LR 570  302, 304, 343 Rice’s Miller [1993] FamCA 87  340 Richards & Parsons [2013] FamCAFC 74  363 Richardson v Richardson (1987) 38 DLR 699  644 Rick & King [2011] FamCAFC 220  108 Robert & Golden [2011] FamCA 443  109 Roberts v Roberts (1977) Fam LN 59  532, 635 Robertson & Robertson [2012] FamCAFC 60  518 Robinson v Rouse [2005] TASSC 48  94

xxviii

table of cases

Rodeo & Pryor [2011] FamCAFC 180  343 Rodway & Rodway [2012] FMCAfam 903  321–2, 325 Rogers v Rogers (1964) 114 CLR 608  486 Rolfe (1977) 5 Fam LR 146  522 Rolfe, In the Marriage of (Rolfe) (1977) 5 Fam LR 146  521 Rosati and Rosati (Rosati) [1998] FamCA 38  515 Rosati Unreported, Family Court of Australia  585 Rose & Baudin [2012] FamCAFC 171  361 Ross & Kelso (No. 2) [2013] FCCA 1425  613 Rouse, In the Marriage of (1982) FLC 91-226  631 Roy v Sturgeon (1986) 11 Fam LR 271  92 Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101  593 Ruane & Bachmann-Ruane and Ors (Accrued Jurisdiction) [2012] FamCA 369  51, 596 Ruane v Bachmann-Ruane [2009] FamCA 1101  595 Rushton & Rushton [2011] FMCAfam 1259  584 Russell Stuart Mclay Appellant/Husband and Susan Jeanette Mclay Respondent/ Wife [1996] FamCA 29  492, 569 Russell v Russell (1976) 134 CLR 495  11–12, 15–16, 23 Rutherford & Marshall of the Family Court of Australia [1999] FamCA 1299 (Rutherford)  306, 308 S, In the Marriage of (1980) 5 Fam LR 831  108 S & S [2003] FamCA 905  586–7 S v B (No 2) [2004] QCA 449  94 Sabri, Re Ex parte Brien v Sabri (1996) 137 FLR 165  561 Saintclaire & Saintclaire [2013] FamCA 491 (Saintclaire)  600–1 Salomon v Salomon & Co [1897] AC 22  551 Sampson & Hartnett (No 10) [2007] FamCA 1365  362 Samson & Jacks [2008] FamCA 176  345 Sand & Sand [2012] FamCAFC 179  557 Sand & Sand (No 2) [2012] FamCAFC 216  51 Sanders and Sanders (1967) 116 CLR 366  617 Sandler & Kerrington [2007] FamCA 479  302 Sandrk and Sandrk (1991) 15 Fam LR 197  545 Sapir v Sapir (No 2) (1989) 13 Fam LR 362  510 Sarah, Re [2014] FamCA 208  40 Sathra & Sathra [2013] FamCAFC 142  448, 450 Schacht v Bruce Lockhart Thompson and Dennis Michael Staunton (trading as Staunton and Thompson Lawyers) (No. 3) [2013] NSWSC 316  596 SCVG & KLD [2014] FamCAFC 42 (SCVG)  264, 267

table of cases

SCVG v KLD [2010] FMCAfam 641  273 SDM & JCM [2006] FamCA 840  539 Sealey v Archer [2008] FamCAFC 142  264, 359 Secretary, Department of Health and Community Services v JMB and SMB (1992) 175 CLR 218; [1992] HCA 15, 256 (Marion’s Case)  35–40 Secretary of the Attorney-General’s Department & McDonald [2013] FamCA 8  376 Secretary of the Department of Health and Human Services & Ray and Ors [2010] FamCAFC 258  40, 65 Sedgley, In the Marriage of (1995) 19 Fam LR 363  287 Selen & Selen and Anor [2013] FamCAFC 39  51 Semperton & Semperton [2012] FamCAFC 132 (Semperton)  580–3 Senior & Anderson [2011] FamCAFC 129  593, 597 Sharp & Sharp [2011] FamCAFC 150  496–7 Sharpless v McKibbin [2007] NSWSC 1498  99 Shaw, In the Marriage of (1989) 12 Fam LR 806  502 Sheldon & Weir [2011] FamCAFC 212  335, 361 Sheldon & Weir (No 3) [2010] FamCA 1138  335 Sheridan, In the Marriage of [1994] FamCA 126  326 Shewring, In the Marriage of (1987) 12 Fam LR 139  526 Shimizu & Tanner [2011] FamCA 271  556–7 Simpson & Brockmann [2009] FamCAFC 73  115–16 Simpson and Hamlin (1984) 9 Fam LR 1040  545 Simpson and Hamlin, In the Marriage of (1984) 9 Fam LR 1040 (Simpson and Hamlin) 545 Sinclair & Hatcher [2014] FCCA 395  92, 94–5 Sinclair & Whittaker [2013] FamCAFC 129  92 Skinner & Cluny [2013] FamCA 301  448 SL and EHL [2005] FamCA 132  567, 570 Slater & Light (2013) [2013] FamCAFC 4  280 Slater v Light [2011] FamCAFC 1  272 Smith, In the Marriage of (1985) 10 Fam LR 283  49 Smith & Fields [2012] FamCA 510  567, 570–2 Smith v Smith (1986) 161 CLR 217  49–50 Smith v Wickstein (1996) 21 Fam LR 118  467, 471 Soblusky (1976) 2 Fam LR 11  630 Soblusky, In the Marriage of (1976) 2 Fam LR 11 (Soblusky)  554, 611, 618, 636–7 Somerset & Somerset [2009] FamCAFC 5  513 Soysa & Commissioner of Police [2011] FamCAFC 39  373 Soysa and Commissioner, Western Australia Police [2012] FCWA 28  379

xxix

xxx

table of cases

Spry v Kennon (2008) 238 CLR 366  509, 511, 552, 555 SPS & PLS [2008] FamCAFC 16  306 Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261  49 Stanford [2012] HCA 52  516–17 Stanford v Stanford (2012) 247 CLR 108 (Stanford)  17, 22, 482–3, 491–2, 494, 496, 498, 501–7, 509, 511–13, 517, 521, 524, 539, 542, 544, 547, 549, 556, 563, 565–7, 573, 583, 593, 603 Stanton & Brook [2012] FamCA 230  613, 639, 641 Starr v Duggan [2009] FamCA 115  264, 304 State Central Authority & Ustinov (No 4) [2008] FamCA 987  379 Stavros, In the Marriage of (1984) Fam LR 1025  308 Stein & Stein [2000] FamCA 102 (Stein)  624–6, 633 Steinmetz, In the Marriage of (1980) 6 Fam LR 554 (Steinmetz)  636–7 Stephens & Stephens and Anor (Enforcement) [2009] FamCAFC 240  509, 550, 552–3 Stephens & Stephens and Ors [2007] FamCA 680 (Stephens)  552 Stevenson and Hughes [1993] FamCA 14  308 Stirling & Dobson [2011] FMCA 52  449 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 (Strahan)  540–1, 543, 606, 639 Stuart Anderson Evans Applicant and Julie Gay Spicer (Formerly Evans) Respondent Suit, In the Marriage of [1992] FamCA 36  643 Suiker, In the Marriage of [1993] FamCA 141  485 Sullivan & Sullivan [2011] FamCA 752  595 Susan Elizabeth Wunderwald Appellant and Clyde Edward Wunderwald Respondent [1992] FamCA 1  575 Suzanne Best Appellant and Gary William Best Respondent, In the Appeal Of [1993] FamCA 107 (‘Best’)  508, 623 Suzanne Margaret Weir Appellant/Wife And: William Hilton Weir Respondent/ Husband, In the Marriage of [1992] FamCA 69  513 Swarapathan & Sangakkara [2012] FamCA 1071  109 Sydney Children’s Hospital Network (Randwick and Westmead) v X and Others [2013] NSWSC 368  42 T & T [Pension Splitting] [2006] FamCA 207  535 T and S, In the Marriage of [2001] FamCA 1147  58 T v T [2006] FamCA 207  580 Taisha & Peng and Anor [2012] FamCA 385  91 Talbot v Norman [2012] FamCA 96  36 Tate Central Authority v Perkis [2010] FamCA 6  376 Taylor & Tyson [2011] FMCAfam 1038  613

table of cases

Taylor v Barker [2007] FamCA 1246  264, 304, 359 TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515  374 Teoh (1995) 183 CLR 273  197 Teves III and Campomayor, In the Marriage of [1994] FamCA 57  108 The Commonwealth of Australia v the Australian Capital Territory see Commonwealth v ACT [2013] HCA 55 Thistle & Thistle (No. 2) [2014] FamCA 67  280 Tobin, In the Marriage of [1999] FamCA 446 (Tobin)  113–14 Tobin v Tobin (1999) [1999] FamCA 446  465 Todd, In the Marriage of (No 2) (1976) 9 ALR 401  111 Tomasetti & Tomasetti [2000] FamCA 314  535 Townsend [1994] FamCA 144  556 Transurban City Link Ltd v Allan [1999] FCA 1723  35 Trott & Trott [2006] FamCA 207  581–2 Trustee for the Bankrupt Estate of N Lasic & Lasic [2009] FamCAFC 64  550 Trustee of the property of G Lemnos & Lemnos and Anor (Lemnos) [2009] FamCAFC 20 558 Trustees of the Property of Cummins (a Bankrupt) v Cummins (Cummins) (2006) 227 CLR 278  560–2 Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229  346 Tryon & Clutterbuck [2007] FamCA 580  346 Tryon & Clutterbuck [2010] FamCAFC 80  346 Tryon & Clutterbuck (No 2) [2009] FamCAFC 176  116, 346 Tuck, In the Marriage of (1979) 7 Fam LR 492  467 Tye, In the Marriage of (No 2) (1976) 2 Fam LR 11  635 Tyler & Sullivan [2014] FamCA 178  288 Tynan, In the Marriage of (1992) 16 Fam LR 621  413 Tyson v Tyson (1996) 70 ALJR 285  642 U v U [2002] HCA 36  296, 304, 358 U v U (2002) 211 CLR 238  66 United States v. Windsor, 570 U.S. (2013)  105 Vakros & Lestos [2012] FamCAFC 40  114, 346 Valentine & Lacerra and Anor [2013] FamCAFC 53  297, 340–1, 344–5 Van Rodenberg and Carne [2008] FamCA 478  338 Vargas & Clarke [2014] FamCA 109 (Vargas)  319, 321, 350, 353 Vaughan & Bele [2011] FamCA 436  92 Vautin & Vautin [1998] FamCA 135 (Vautin)  617, 641–3

xxxi

xxxii

table of cases

Venkatesan & Pawar [2007] FMCAfam 1109  340 Verran & Hort and Verran [2009] FMCAfam 1  337 Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 148 CLR 383  11 Volen & Backstrom [2013] FamCA 40  93 Voth v Manildra Flour Mills (1990) 171 CLR 538; [1990] HCA 55 (‘Voth’)  45 W & W [2002] FamCA 1143  470 W and W [1997] FamCA 3  563 W v G [1996] NSWSC 43  121 W v G No 4607 of 1994 Equity—Estoppel [1996] NSWSC 43  465 Wade-Ferrell, In the Marriage of [2001] FamCA 138  52 Wagner & Baier (No. 2) [2009] FMCAfam 959  613 Wainder & Wainder [2011] FamCAFC 181  300 Wakim; Ex parte McNally, Re (1999) 198 CLR 511  23, 48–50 Waldrop & Chatelet [2012] FMCAfam 1048  645 Wallace and Stelzer & Anor [2013] FamCAFC 199 (Wallace & Stelzer)  596, 598–9 Warby and Warby [2001] FamCA 1469 (Warby)  50–2 Ward & Trench [2013] FamCA 478  92 Wardman and Hudson, In the Marriage of (1978) 5 Fam LR 889  513, 521 Warren John Mcalpin Respondent/Husband And: Rachel Mary Mcalpin Appellant/ Wife, In the Marriage of [1990] FamCA  328 Watson & Ling [2013] FamCA 57  497, 516, 556 Wayne & Wayne [2010] FamCAFC 33  530 Wellesley v Duke of Beaufort (1827) 2 Russ 1  35 Wernham & Campagnola [2012] FamCAFC 137  545 West & West & Anor [2007] FMCAFam 681  562 Whistler & Whistler [2012] FamCAFC 97  545 White and Tulloch v White (1995) 19 Fam LR 696  510 White v White [2001] 1 AC 595  569 Whitehouse and Whitehouse [2009] FamCAFC 207  51 Whiteley, In the Marriage of [1992] FLC 92-304  502, 527, 568 Whitford, In the Marriage of (1979)  602 Whitford & Whitford (1979) FLC 90-612 (Whiford)  496–7 Williamson, In the Marriage of (1978) 4 Fam LR 355  638 Willis & Willis [2007] FamCA 818  518, 536 Wilson, In the Marriage of (1989) 13 Fam LR 205  632 Wilson and Anor & Roberts and Anor (No 2) [2010] FamCA 734  348 Winefield v Clark [2008] NSWSC 882  600 Witson Theodore Way Appellant/Husband and Shirley Jean Way Respondent/Wife, In the Marriage of [1995] FamCA 28  564

table of cases xxxiii

Wollacott & Wollacott [2014] FamCA 5  505 Woodland v Todd (2005) [2005] FamCA 161  482 Wynona & Friend [2011] FamCAFC 6  530, 536–7 Z and G (1982) 8 Fam LR 193  532 Zabini & Zabini [2010] FamCA 10  201, 263 Zotkiewicz & Commissioner of Police (No 2) [2011] FamCAFC 147  372, 375 ZP v PS [1994] HCA 29  370 ZP v PS (1994) 181 CLR 639  46 Zubcic, (1991) 14 Fam LR 559  526 Zyk [1995] FamCA 35  526

Table of Statutes/International Instruments Commonwealth Access to Justice (Federal Jurisdiction) Amendment Act 2012  59 Acts Interpretation Act 1901 s 22(2)  91, 93 s 22A  96 s 22C  89 s 22C(5)  95 Australian Capital Territory (SelfGovernment) Act 1988  24 s 28  13 s 35(2)  97 Bankruptcy Act 1966 (Bankruptcy Act)  558, 561 ss 115–116  560–1 s 123(6)  560 Bankruptcy and Family Law Legislation Amendment Act 2005  558, 562 s 59A  558 Child Support (Assessment) Act 1989 (CS(A)A)  411, 413, 429–31, 442, 469, 499 Div 4  450 Part 5  439 Part 6A  450 Part 7  450 Part VA  458 s 3(1)  413–14 s 3(2)(a)  633 s 4(1)  416 ss 4(2)–(3)  417 s 5  430–1 s 5(3)  430 s 7A(3)(a)  439 s 7B  430 s 24(2)  430 s 25  430 ss 25A–B  430 XXXIV

s 26A  430 s 30  457 s 35  439 s 44  446 s 65A  447 s 66  446 s 66(1)  446–7 ss 66(5)–(6)  447 s 67  458 s 69A  456 s 71C  456 s 72  458 s 72A  458 s 72AA  458 s 72AB  458 s 72AC  458 s 72AD  458 s 72C  457 s 79  457 s 79A  433 s 80C  451 s 80C(2)  451 s 80D(1)  451 s 80E  451 s 80E(1)  451 s 80F(1)  451 s 80G(1)  451 ss 80G(1)(d)–(e)  451 s 84  451 s 84 (7)(c)(ii)  457 s 90SM  457 s 98C(1)  450 s 98C(2)  448 s 99  433 s 99(2)  54 s 106A  433 s 107  433, 455 s 113  458

Table of Statutes/International Instruments xxxv

s 113A  457 s 116(1)(b)  447 s 117  454 s 117(1)(a)  448 s 117(1)(b)  450 s 117(2)  448 s 117(2)(a)  450 s 117(2)(aa)  446, 450 s 117(2)(A)(iii)(A)  449 s 117(2B)  449 s 117(2)(b)  449 ss 117(2)(b)(ia)–(ib)  449 s 117(2)(b)(ii)  449 s 117(2C)  449 ss 117(2)(c)(ia)–(ib)  450 s 117(3B)  449 ss 117(4)–(5)  450 s 117(5B)  450 s 117(7B)  449–50 s 117(10)  450 s 118  447 s 123A  456 s 123A(2)  457 s 124  456 s 136  452 ss 136(2)(c)–(d)  453 s 141  447 s 143  455 s 143(3)  434 s 143(3B)  434 s 146F  452 s 151B–D  430 s 80CA(1)  451 Child Support Legislation Amendment (Reform of the Child Support Scheme—Initial Measures) Act 2006  53 Child Support (Registration and Collection) Act 1988 (CS(RC) A)  645 Part VII  418, 431 Part VIIA  418 s 10  433 s 29(2)  433

s 29(2)(c)  433 s 60HB  431 s 95  420 s 99  418 s 101(1)  418 s 103VA  418 s 109  418 Commonwealth of Australia Constitution Act 1900 (the Constitution)  1–2, 9, 11, 17, 23–4, 27, 60, 62, 71, 87, 406 Chap III  30 s 51  10–14, 16, 31 s 51 (i)  12 s 51 (xx)  11 s 51 (xxi)  11–12, 14–15, 17, 24, 97, 106, 495 s 51 (xxii)  11–12, 14–15, 18, 495 s 51 (xxiii)  11 s 51 (xxxiii)  12 s 51 (xxxix)  12 s 51 (xxxvii)  13, 18 s 71  27 s 72  29 s 76(ii)  49 s 77  27, 49 s 77(iii)  21 s 92  358 s 109  12–13, 24, 63 s 116  326 s 122  12, 48 s 128  17 Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013  109 Criminal Code Act 1995 s 270.1A  110 s 270.7A(1)  109 s 270.7B  109 Evidence Act 1995  247, 622 s 144  622 Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988  32

xxxvi

Table of Statutes/International Instruments

Family Law Act 1975 (FLA)  3, 6, 10–11, 14–16, 18, 20–2, 26–8, 32–3, 35, 41, 43–5, 51–5, 58–60, 62–8, 70, 73, 78–9, 82, 87, 91–3, 95–7, 99, 106–7, 112–14, 119–23, 129–30, 133–4, 136–8, 146, 153–4, 156, 160, 171, 173, 177, 179, 191–2, 227–8, 241–2, 289, 303, 306, 313, 328, 357–8, 383, 393, 397, 399, 401–2, 406–8, 431, 438, 445, 464– 5, 472, 477–8, 480–1, 492–508, 605, 610–11, 613–16, 623, 646 Chap 7  28 Div 2  629, 638 Div 4  47 Div 7  415, 465 Div 11  54 Div 12  117 Div 12A  31, 65, 245–6 Part 12A  28 Part II  480 Part III  247 Part VII  15, 31–2, 35–6, 41, 53–4, 63, 65, 128, 136, 153, 155–6, 177–9, 191–2, 196–7, 200– 5, 207, 212, 228, 245–6, 250, 255, 260, 264, 270, 272, 325, 331–2, 341, 355, 415, 465, 489, 493, 587, 647 Part VIII  107, 136, 409, 616, 629, 638 Part VIIIA  53, 478, 493, 592, 594–6 Part VIIIAA  15, 51–2, 493, 552–3 Part VIIIAB  22, 89, 136, 501, 594, 616, 629, 638 Part VIIIB  493, 576–7 Part VIIII  647 Part VIII/VIIIAB  558, 592 Part XIB  59 Part XIIIA  546, 645 Part XIIIAA  47 Parts VIIIA/VIIIAB  409, 486–7

s 3(2)  112 s 4  102, 153–4, 277, 335–6, 466, 471, 495 s 4(1)  15, 17, 28, 32–3, 117, 270, 494–5, 508, 550, 617 s 4(1)(ca)(i)  550 s 4(1)(eab)  560 s 4(1)(f )  560 s 4(2)  106 s 4A/4B  560 s 4AA  89, 107, 496 ss 4AA(1)–(2)  91 s 4AA(2)(g)  96 s 4AA(3)  92 s 4AA(5)(b)  95 s 4AB  136, 153, 157, 277, 322–3, 589 s 4AB(1)  278, 280 s 4AB(2)  278 s 4AB(2)(i)  278 s 5A  119 s 6  23, 107, 171 s 8(1)  171 s 8(1)(a)  15, 494 s 8(1)(a)/90RC  617 s 10F  225 s 10L(1)  480 s 11  156 s 11C  247 s 11F  247 s 14(1)(e)/114(2A)(c)  542–3 s 14E  225 s 21(2)  31 s 21A  28 s 22(2AA)  28 s 23B(a)  107 s 26B  28 s 29A  432 s 30  162 s 31  65 s 31(2)  44 s 33  48–9 s 33B  33 s 37A  28

Table of Statutes/International Instruments xxxvii

s 37A(10)  29 s 39  616 s 39(1A)  33 s 39(2)  53 s 39(3)  44 s 39(4)  44 s 39(6)  53 s 39(7AA)  53 s 39(8)  52 s 39B  33 s 40(2)  88 s 41  52 s 43  79, 85 s 43(a)  23, 102 s 44(1B)  111 s 44(3)  15, 482, 497, 601 s 44(4)  496 s 44(4)/44(6)  614 s 44(4)(b)/44(6)(b)  614, 616 s 44(5)  15, 93, 482, 496 s 44(6)  93, 496 s 44A  53 s 46(1)  54 s 46(3)  54 ss 48(1)–(2)  110 s 48(3)  111 ss 49(1)–(2)  110 s 50(1)  110 s 51  106 s 55  110 s 55A  110, 112 s 60(1)  92 s 60B  119, 193, 264, 270, 272, 325–7, 340 s 60B(1)  127 s 60B(1)(a)  359 s 60B(2)  127 s 60B(2)(a)  112 s 60B(2)(b)  341 s 60B(2)(e)  334 s 60B(3)  334–6 s 60B(4)  196–7 s 60CA  34, 270, 313, 413 s 60CB  36

s 60CC  113, 163, 192, 204, 264, 266, 268, 270, 281, 325, 329, 340, 347, 359–60, 366, 404 s 60CC(1)(a)  194 s 60CC(2)  127, 272, 340, 342 s 60CC(2A)  194, 202, 271, 277, 281, 284, 315, 322, 325 s 60CC(2)(A)  363 s 60CC(2)(a)  274–6, 341–2, 346–7, 359–60 s 60CC2A  157, 228 s 60CC(2)(b)  276, 281 s 60CC(3)  127, 271, 347 s 60CC(3)7  156 s 60CC(3)(a)  194, 250, 289 ss 60CC(3)(b)–(c)  291 s 60CC(3)(ca)  194 s 60CC(3)(d)  266, 269, 291 s 60CC(3)(e)  194 s 60CC(3)(h)  81, 334 s 60CC(3)(k)  156, 163, 277 s 60CC(3)(m)  266, 340–1, 349 s 60CC(4)  266 s 60CC(4A)  266 s 60CC(5)  195, 243 s 60CC(6)  334 s 60CC(b)  194 ss 60CC(c)(i)–(iii)  194 s 60CC(d)(i)  194 s 60CC(d)(ii)  194 s 60CC(f )(i)  194 s 60CC(f )(ii)  194 s 60CC(g)  195 s 60CC(h)  195, 335–6 s 60CC(i)  195 s 60CC(k)  166, 195 s 60CC(l)  195 s 60CC(m)  195, 342 s 60CD  289 s 60CE  247, 250, 289 s 60CG  36, 284, 287 s 60CG(2)  287 s 60CI  64 s 60CI(2)  157

xxxviii Table of Statutes/International Instruments

s 60D  20, 587 s 60D(1)  228, 271, 590 s 60D(1)(a)  228 s 60D(1)(iii)  157 s 60D(2)  271, 298 s 60F  633 s 60G  19–20 s 60H  119–23, 348, 430–1, 433 s 60H(1)  115, 119–20, 128 s 60H(1)(d)  121 ss 60H(2)–(3)  431 s 60H(5)  119 s 60H(a)  119 s 60HA  92, 128 s 60HB  79, 115, 121–2, 124, 433 s 60HB(1)  79 s 60I  230, 257, 261 ss 60I(7)–(8)  229 s 60I(8)(a)  229 s 60I(8)(aa)  229 s 60I(8)(c)  230 s 60I(8)(d)  229 s 60I(9)  136, 261 ss 60I(9)(a)–(f )  229 s 60I(10)  229 s 61B  292 s 61C  195, 292, 339 s 61C(2)  112 s 61D  360 s 61DA  113, 155, 195, 264, 270, 292–3, 339 s 61DA(2)  155, 196, 265, 292–3, 296–7 s 61DA(3)  267, 293 s 61DA(4)  155, 292–3, 295–7 s 61DAA  270 s 61DB  269 s 61E  20 s 61F  82–3, 334–6 s 62B  255, 258 s 62DA  298 s 62G  247 s 62G(2)  289 s 62G(3A)  250

ss 62G(3A)(a)–(b)  247 s 62G(3B)  247, 250 s 63C(1)(b)  339 s 63C(2)(c)  339 s 63DA  227–8, 242 s 63DA(2)  228 s 63DA(c)  228 s 64(1)(C)  36 s 64(1)(c)  16–17 s 64B  192–3 s 64B(1)  117 s 64B(2)  261–2 ss 64B(2)(a)–(c)  193 s 64B(2)(i)  40 s 64B(4A)  255 s 64B(6)  65 s 64C  65, 127, 261 s 64CA  127 s 64C(b)  126 s 64C(c)  127 s 64D  242 ss 64D(2)–(3)  242 s 65AA  413 s 65C  20, 65, 128 s 65C(a)  126, 261 s 65C(b)  250, 261 s 65C(ba)  126, 261, 340 s 65C(c)  127, 261, 339–40 s 65D  126, 261 s 65D(1)  65 s 65D(2)  304 s 65DAA  113, 155, 202, 267–8, 293, 297, 360 s 65DAA(1)  192, 267–8, 299–300 ss 65DAA(1)(a)–(b)  297–8 s 65DAA(1)(c)  298 s 65DAA(2)  155, 192, 298, 300 s 65DAA(3)  299 s 65DAA(5)  299, 301, 324 s 65DAB  242 s 65DAC  113, 196, 293 s 65DAE  113, 293 s 65G  243

Table of Statutes/International Instruments xxxix

s 65G(2)  243 s 65L  255 s 65LA  255, 310 s 65LB  310 s 65N(2)  308 ss 66B–C  413, 465 s 66C(2)(a)  633 ss 66D(1)–(2)  466 s 66E  465 s 66F(1)  465 s 66G  465, 468 s 66H  465, 467 s 66J  466–7 s 66J(1)(c)  471 s 66J(3)(a)  471 s 66J(3)(b)(ii)  471 s 66K  466–7 s 66K(1)(e)  468 s 66K(4)(a)  471 s 66L  467–8, 470–2 s 66L(1)(b)  468 s 66M  466 ss 66M(1)–(3)  466 s 66M(3)(a)  466 s 66M(3)(c)  468 s 66N  466 s 67J(2)  262 s 67N(4)  262 s 67P(1)(d)  262 s 67Z  64 s 67Z(2)  268 s 67ZA  64 s 67ZBA  64 s 67ZBA(2)  268 s 67ZBA(3)(b)  268 s 67ZBB  268 s 67ZBB(2)  268 s 67ZC  16–17, 19, 35–6, 38–42, 65 s 67ZC(1)  36 s 68B  35, 54, 136, 161, 281 s 68F  81, 270 s 68F(2)(f )  81 s 68F(2)(g)  155

s 68J  155 s 68L  251, 289 s 68L(5)  251 s 68LA  289 s 68LA(2)  251 ss 68LA(4)–(5)  251 s 68LA(5)(b)  250 s 68LA(6)–(7)  251 s 68R  173 s 69(1)  115 ss 69(1)(a)(i)–(ii)  115 s 69(1)(b)  115 s 69(3)  115 s 69B  42 s 69E  44, 261 s 69H  33, 63, 115–16 s 69H(1)  35, 65 s 69H(4)  35 s 69J  35, 63 s 69N  53 s 69N(4)  54 s 69P  114 ss 69P–T  433 s 69Q  114 ss 69R–S  114–15 s 69S(1)  114–15 s 69S(1A)  114 s 69T  115 ss 69U(1)–(2)  115 s 69VA  115–16, 121, 262, 434 s 69W  115–17, 434 ss 69W(1)–(2)  116 s 69X  116 s 69Y(2)  116 s 69Z  116 s 69ZA  116 s 69ZC  116 s 69ZE  53 s 69ZH  41, 65 ss 69ZH(2)–(3)  41 s 69ZJ  32 s 69ZK  61, 64 ss 69ZK(1)–(3)  64 s 69ZM  489

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s 69ZN  246 s 69ZQ(1)  246 s 69ZQ1(aa)  64 s 69ZQ(aa)  157 ss 69ZR–S  247 ss 69ZT(1)–(2)  247 s 69ZW  65 s 69ZX  247 s 70N  47 s 70NAA  307 s 70NAA(3)(c)  309 s 70NAC  307 s 70NAE(2)  308 s 70NAF(1)  309 ss 70NCB(1)–(2)  309 s 70NDB  309 s 70NDB(2)  309 s 70NDC  309 ss 70NEA(2)–(5)  309 s 70NEB  310 s 70NFB  310 s 70NFG  310 s 71  106 s 71A/90SA  593 s 72  618, 627, 630, 643 s 72(1)  495 s 72(1)(a)/90SF(1)(b)  633 s 72(1)(b)/90SF(1)(b)(ii)  630 s 72(2)  618–21 ss 72(2)(j)–(k)  621 s 72/90SF(1)  617–18, 626, 629, 631–2 s 74  618, 638, 643 s 74(1)/90SE(1)  34 s 74/90SE(1)  629, 638, 641 s 75  499–501 s 75(1)/90SF(2)  629 s 75(2)  89, 501, 510, 519, 529, 531–7, 540, 559–60, 568, 583–5, 590, 592, 618, 623–4, 628, 636 s 75(2)/90SF(3)  498, 502, 504, 510, 529–38, 583, 587, 592, 618, 624, 629–31, 634–5 s 75(2)/90SM(3)  529, 632–3

s 75(2)(a)  585, 630 ss 75(2)(a)/90SF(3)(a)–(b)  630 s 75(2)(a)/90SF(3)(d)  630 ss 75(2)(a)/90SF(3)(g)–(h)  630 s 75(2)(a)/90SF(3)(i)  630 ss 75(2)(a)/90SF(3)(n)–(p)  630 s 75(2)(a)/90SF(3)(s)–(t)  630 s 75(2)(b)  510, 585, 628, 630–1 s 75(2)(b)/90SF(3)  630 s 75(2)(b)/90SF(3)(b)  510, 533, 626, 631, 637 s 75(2)(c)/90SF(3)(c)  530, 633 s 75(2)(d)  625, 630, 632 s 75(2)(d)/90SF(3)(d)  632–3 s 75(2)(e)/90SF(3)(e)  633 s 75(2)(f )  615, 634 s 75(2)(f )/90SF(3)(f )  634 s 75(2)(g)  628–30 s 75(2)(g)/90SF(3)(b)  628 s 75(2)(g)/90SF(3)(g)  632 s 75(2)(h)  630 s 75(2)(h)/90SF(3)(h)  632 s 75(2)(ha)  559, 630 s 75(2)(ha)/90SF(3)(i)  632 s 75(2)(j)  635 s 75(2)(j)/90(3)(j)  635 s 75(2)(k)/90SF(3)(j)  635 s 75(2)(k)/90SF(3)(k)  635 s 75(2)(k)/90SM(3)(k)  635–6 s 75(2)(l)  633–4, 636 s 75(2)(l)/90SF(3)(l)  633 s 75(2)(m)  635 s 75(2)(m)/90SF(3)(f )  634 s 75(2)(m)/90SF(3)(m)  634 s 75(2)(m)/90SF(3)(m)  635, 645 s 75(2)(n)  630, 632 s 75(2)(na)/90SF(3)(q)  634 s 75(2)(naa)  630 s 75(2)(o)  510, 555, 557, 585, 591, 627, 630–2, 636 s 75(2)(o)/90SF(3)(o)  556 s 75(2)(o)/90SF(3)(r)  527, 629–31, 633, 636–7 s 75(2)(p)  630

Table of Statutes/International Instruments

ss 75(2)(p)/90SF(3)(n)–(p)  632 ss 75(2)(p)/90SF(3)(s)–(t)  632 s 75(3)  615 s 75(3)/90SF(3)(f )  615 s 75(3)/90SF(4)  634 s 75.21  631 s 76(1)  455 ss 76(2)–(3)  467 s 77  638–9 s 77A  643 s 77A/90SG  638 s 77A/90SH  614, 642–3 s 78  48 s 78/90SL  542 s 79  51–2, 89, 486, 492–3, 496, 498, 501–4, 512–13, 515, 523, 532, 541–2, 544, 550, 554, 557, 559, 562, 565, 574–5, 580, 584, 590, 600, 637 s 79(1)  498 s 79(1)/90SM(1)  34, 540, 628 s 79(1A)/90SN  497 s 79(2)  497, 502–5, 512, 516–17 s 79(2)/90SF(3)  501, 515 s 79(2)/90SM(3)  34, 485, 498, 504–5, 603 s 79(4)  503, 505, 516, 521, 523, 572 s 79(4)/90SM  539 s 79(4)/90SM(3)  505 s 79(4)/90SM(4)  498, 504–6, 512, 517, 539, 563 s 79(4)(a)/90SM(4)(a)  518, 524–5, 527 ss 79(4)(a)–(c)/90SM(4) (a)–(c)  502, 504, 517 s 79(4)(b)  521, 527, 566 s 79(4)(b)/90SM(4)(b)  518, 524–7 s 79(4)(c)  521, 526–7 s 79(4)(c)/90SM(4)(c)  518, 526–7 s 79(4)(d)/90SM(4)(d)  243, 631 ss 79(4)(d)–(g)  501, 535

ss 79(4)(d)–(g)/90SF(4) (d)–(g)  502 ss 79(4)(d)–(g)/90SM(4) (d)–(g)  504, 517, 529 s 79(4)(e)  532 s 79(4)(e)/90SM(4)(e)  510, 529 s 79(5)/90SM(5)  540 s 79(6)  643 s 79(8)  497–8 s 79(8)/90SM(8)  497 s 79(8)(b)  497 s 79(8)(b)(i)–(ii)  497 s 79(9)/90SM(9)  488 s 79(10)(a)  562 s 79(11)  562 s 79(24)/90SM(4)  517, 519 s 79/90SM  482–3, 485–6, 488, 501, 506–7, 510–11, 529, 542–4, 546–603, 629, 631 s 79A  304, 485–6, 543, 545–6, 601, 643 s 79A(1A)  544 s 79A(1)(a)/90SM(1)(a)  550 s 79A(1)(a)/90SN(1)(a)  544–5 s 79A(1)(b)/90SN(1)(b)  544 s 79A(1)(c)/90SN(1)(c)  544 s 79A(1)(d)  545, 601–2 s 79A(1)(d)/90SN(1)(d)  454, 545 s 79A/90SN  484, 486, 545, 643 s 79A/90SN(1)  544–7 s 79F  562 s 79G  562 s 79SM  526, 535–7 s 80(1)(h)  541 s 80(1)(h)/90SS(1)(h)  638 s 80(2)/90SST  614 s 80/90SS  540, 638 s 81  15, 580, 615, 641 s 81/90ST  495, 540, 614 s 82(4)/90SJ(2)  645 s 82/90SJ  645 s 83/90SI  645 s 84(5)  451 s 85  550

xli

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Table of Statutes/International Instruments

s 85A  509 s 87  594 s 89  173 ss 90AE(3)–(4)  553 ss 90AF(3)–(4)  553 s 90B/90UB  486–7, 592 s 90C/90UC  486–7, 592 s 90D/90UD  486–7, 592 s 90DA/90UF  593 s 90E/90UH  592 s 90F/90UI  487, 593, 614 s 90G  598 s 90G(1A)  597 s 90G(1A)/90UJ(1A)  596–7 s 90G(1A)(c)  597–8 s 90G(1A)(c)/90UJ(1A) (c)  597–8 s 90G(1)(b)  596, 598–9 s 90G(1)(b)/90UJ(1)(b)  593 s 90G/90UJ  487, 593, 595–6, 598 s 90J/90UL  593 s 90K (1)  89 s 90K (1A)  89 s 90K(1)(aa)/90UM(1) (b)  550, 560 s 90K(1)(d)  454, 601–2 s 90K(1)(d)/90UM(1)(g)  601 s 90K(3)  601 s 90K/90UM  593, 595, 600 s 90KA/90UN  593 s 90L/90WA  483 s 90MA  576 s 90MC  573, 576, 581 s 90MC(2)  493 s 90MT(2)(a)  578–9 s 90MT(2)(b)  579 s 90RA  53 s 90RB  633 s 90RC  494 s 90RD  91, 95 s 90SB  92, 494 s 90SB(a)  93 s 90SD  494

s 90SF(3)  89 s 90SF(4)  615 s 90SM  89, 492–3, 496, 498, 502, 504 s 90SM(8)  517 s 90ST  15 s 90TA  493, 552 s 91B  65 s 92  250 s 92A  64 s 94(1)  28 s 94A  50 s 94AAA  30 s 94AAA(3)  30 s 95  28 s 96(4)(a)  54 s 97(2)  27 s 100B  250 s 102Q(1)  280 s 102QB  280–1, 302 s 102QD  280 s 104  44, 497 s 106B  44, 543, 550 s 111C  366 s 112AD  546 s 112AE  546 s 112AG  546 s 112AN  546 s 114  52, 54, 136, 161, 542–3, 553, 643 s 114(1)(e)/114(2A)(c)  543 s 114(1)(f )  543 s 114(1)(f )/114(2A)(a)  542–3 s 114(2A)  543 s 114(3)  542–3 s 116  325 s 117  541 s 117(4A)  65 s 117AB  156 s 118  59 s 121  27–8, 262–3 s 121(9)  27 s 121(9)(d)  263 s 136(2)(d)  455

Table of Statutes/International Instruments

s AB  156 s 79(2)  544 ss 65M–P  307 ss 67J–67P  262 ss 67Q–67Y  262 ss 70NAE(4)–(7)  309 Family Law Act Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010  300 Family Law Amendment Act 1983  18, 521 s 4  119 s 29  177 Family Law Amendment Act 1987, s 24  119 Family Law Amendment Act 2000  594 Family Law Amendment Act 2003  560, 562 Sch 6  552–3 Family Law Amendment (Child Protection Convention) Act 2002  47 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008  21–2, 86, 88 Sch 3  121 s 60H(1)  86 s 60HB  86 Family Law Amendment (Family Violence) Act 2011  268, 271, 282 Family Law Amendment (Family Violence and Other Measures) Act 2011  130–1, 134, 182, 437 Family Law Amendment Regulations 2009 (No 1)  96 Family Law Amendment (Shared Parental Responsibility) Act 2006  260, 266 Sch 7  33 Family Law (Child Abduction Convention) Regulations 1986 (the Regulations)  369

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 s 45  314 Sch 2  117 Family Law Legislation Amendment (Superannuation) Act 2001  575–6 Family Law Reform Act 1995  155, 282, 354 Federal Circuit Court of Australia Act 1999  29–30 s 8(3)  32 s 8(4)  30 s 18  48–9 s 39  33 s 45  31 ss 50–51  31 ss 54–55  31 s 56  31 s 62  31 s 85  33 Federal Circuit Court of Australia Legislation Amendment Act 2012  29 Federal Magistrates Act 1999  29, 32 s 42  30 Marriage Act 1961 (MA)  9, 13–14, 18, 23–4, 32, 87, 100–1, 105–7 s 4  97 s 5  23, 105 s 5(1)  32 s 5(3)  101 s 16  32 s 17  32 s 23  106 s 23B  106 ss 41–42  101 ss 44–45  101 s 46(1)  23 s 48  106 s 88EA  97, 105 Matrimonial Causes Act 1959  14, 18, 192, 406, 493

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A New Tax System (Family Assistance) Act 1999  436 Reform Act 1996  155 Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008  88 Same-Sex Relationships (Equal Treatment in Commonwealth Laws— Superannuation) Act 2008  88 Sex Discrimination Act 1984, s 22  12 Sex Discrimination Amendment Act 1991, s 12  108 Social Security Act 1947  616 Social Security Act 1991  616 Social Security and Veteran’s Entitlements (Maintenance Income Test) Amendment Act 1988  616 Social Security (Rewrite) Transition Act 1991, s 3  616 Trans-Tasman Proceedings Act 2010, s 17(1)  45

Australian Capital Territory Child Support (Registration and Collection) Regulations 1988, Reg 5D 456 Civil Partnerships Act  97 Civil Unions Act 2012  96–7 s 5  97 s 7(c)  97 s 9  97 s 11  97 Domestic Relationships Act 1994  98–9, 397, 613 s 3(1)  98 s 3(2)  98 Jurisdiction of Courts (Cross-vesting) Act 1987  48 Marriage Equality (Same Sex) Act 2013  12–13 Marriage Equality (Same Sex) Act 2013 (the ACT Act)  24, 105

Parentage Act 2004 Divs 2.4–2.5  124 s 11(4)  118

New South Wales Births, Deaths and Marriages Registration Act 1995  103 s 32B  102 Commonwealth Powers (De Facto Relationships) Act 2003  21 s 4(1)  495 Commonwealth Powers (Family Law— Children) Act 1986  19 s 3(1)  19 s 3(2)  13, 19 s 4  19 Crime (Domestic and Personal Violence) Act 2007  161 Guardianship Act 1987, Part 5  42 Jurisdiction of Courts (Cross-vesting) Act  48 Property (Relationships) Act 1984 s 4(1)  91 s 5(1)(b)  99 s 17  92 Relationships Register Act 2010  96 Status of Children Act 1996, s 14(4)  118 Surrogacy Act 2010, Part 3  124 Northern Territory De Facto Relationships Act 1991 s 3  101 s 5  102 s 46(1)  102 s 48  102 De Facto Relationships (Northern Territory Request) Act 2003  21 s 4(1)  495 Interpretation Act 1978, s 19A  101 Jurisdiction of Courts (Cross-vesting) Act 1987  48 Status of Children Act 1978, s 5D(2)  118

Table of Statutes/International Instruments

Queensland Adoption Act 2009  88 Commonwealth Powers (De Facto Relationships) Act 2003  21 s 4(1)  495 Commonwealth Powers (Family Law—Children) Act 1986  19 s 3(1)  19 s 3(2)  13, 19 s 4  19 Jurisdiction of Courts (Cross-vesting) Act 1987  48 Property Law Act 1974, s 287  92 Relationships Act 2011  96 Status of Children Act 1978, s 17(3)  118 Surrogacy Act 2010, Part 2  124 South Australia Commonwealth Powers (De Facto Relationships) Act 2009  21 s 4(1)  495 Commonwealth Powers (Family Law—Children) Act 1986  19 s 3(1)  19 s 3(2)  13, 19 s 4  19 Family Relationships Act 1975 Div 3  124 Part 2B  124 s 10D(1)  118 Jurisdiction of Courts (Cross-vesting) Act 1987  48 Tasmania Commonwealth Powers (De Facto Relationships) Act 2006  21 s 4(1)  495 Commonwealth Powers (Family Law—Children) Act 1987  19 s 3(1)  19 s 3(2)  13, 19 s 3(4)  19

Jurisdiction of Courts (Cross-vesting) Act 1987  48 Relationships Act 2003 Part 2  96 ss 4–5  99 Surrogacy Act 2012, Part 4  124

Victoria Children, Youth and Families Act 2005 63 Children and Young Persons Act 1989  63 Commonwealth Powers (De Facto Relationships) Act 2004  21 s 4(1)  495 Commonwealth Powers (Family Law— Children) Act 1986  19 s 3(1)  19 s 3(2)  13, 19 s 4  19 Crimes (Family Violence) Act 1987  162, 169 Family Violence Protection Act 2008  161, 169, 171–2 s 5(1)  171 s 24  172 ss 30–31  172 s 53  172 s 74  172 ss 74(1)–(2)  172 s 77  172 s 81  172 s 81(b)  173 s 82  173 s 82(3)  173 s 91(2)  173 s 92  173 s 92(1)(b)  173 s 94  173 s 99  173 s 123  173 Jurisdiction of Courts (Cross-vesting) Act 1987  48

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Marriage Act 1958, s 161(4)(b)  14 Property Law Act 1958, s 53  482 Relationships Act 2008  96, 99, 613 s 4  99 s 5  99 s 41  99 Status of Children Act 1974 Part 4  124 s 10C(3)  118 s 19  121

Western Australia Artificial Conception Act 1985, s 6(1)  118 Child Support (Adoption of Laws) Act 1990, s 5(1)  53 Child Support (Assessment) Act 1989 (CS(A)A)  53 s 99(2)  53 Child Support (Registration and Collection) Act 1988  53 Commonwealth Powers (De Facto Relationships) Act 2006  21 Family Court Act 1997  21, 415, 467 Part 5A  53 s 75(2)(f )  416

Jurisdiction of Courts (Cross-vesting) Act 1987 ss 4(6)–(7)  48 Surrogacy Act 2008, Part 3  124

New Zealand Civil Union Act 2004  98 Marriage (Definition of Marriage) Amendment Act 2013  98 United Kingdom Divorce and Matrimonial Causes Act 1857 s 20  13 s 21  13 The Human Fertilisation and Embryology Act 2008  86 Lord Talfourd’s Act 1839  13 Marriage (Same-Sex Couples) Act 2013  98 s 9  98 United States Defense of Marriage Act (DOMA)  104–5

Preface In writing the second edition of this book, our main aim continues to be to encourage and enable broad understanding of, and critical thinking about, contemporary Australian family law. To achieve this, the general approach we have taken is to first address fundamental aspects of Australia’s family law system (constitutional and jurisdictional aspects, family diversity and family violence) and from Chapter 5 onwards to consider (first in relation to parenting disputes and then in relation to financial disputes) relevant historical and empirical perspectives, followed by process issues, followed by the substantive law. The book has been re-written and re-structured to reflect the many significant changes and developments since the first edition was published seven years ago, and reflects the law as at 31 July 2014. Our book is targeted at a wide range of readers. A key audience is law students at tertiary level (both undergraduate and post-graduate), and we have deliberately pitched the work in a way that is designed to challenge such students, while at the same time making it accessible both to them and to students of other disciplines. We also intend that the book will be useful to teachers, researchers, policy makers and practitioners in their own thinking about family law and policy. The process of writing the second edition has continually challenged us to be clear about and to question our own assumptions and understandings, and we hope that the book will encourage others to do the same. The second edition of the book is as timely as the first, as it once again follows a number of significant changes to Australian family law, including the introduction of a new child support formula in 2008, amendments to the Family Law Act to extend its coverage to financial disputes between separating de facto partners in 2009, and further Family Law Act amendments in 2012 in relation to family violence. Since the 2006 amendments that encouraged shared parenting after separation, there has been much empirical research relevant to family law and policy and a significant focus of this book is to draw on that research to convey a rich sense of the law in action, including gaps between formal law and social practices. Belinda Fehlberg wrote Chapters 1, 2, 3, 10, 11, 13, 14, 15, with Juliet Behrens providing valuable input on Chapters 2, 3, 10, 13 and 14. Belinda Fehlberg with Juliet Behrens wrote Chapter 12. Jenni Millbank wrote Chapter 4, Rae Kaspiew wrote Chapters 5, 6 and 7, and Fiona Kelly with Jenni Millbank wrote Chapter 8. Jenni Millbank with her co-authors wrote Chapter 9. While the first edition provided our starting point, all chapters were re-written, new chapters have been included in relation to family law process and the book structure has also changed. The book has a long history, which began with a contract between OUP and John Dewar, Miranda Kaye and Julia Tolmie. Those original proposed authors moved on to other things, but we acknowledge their role in the conception of the first edition of the book.

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In particular, John Dewar played a major role. The first edition was written by Belinda Fehlberg and Juliet Behrens, with Rae Kaspiew. The Australian family law academy is particularly collegial and supportive. We value this, and have been the beneficiaries of it. In particular, we would like to thank our academic colleagues who have used the book in their teaching and provided valuable feedback on the first edition, which we have tried to the fullest extent possible to reflect in the second edition. Our sincere thanks also to the following colleagues for their generous and invaluable feedback on drafts of our chapters: Richard Ingleby, Cressida Limon, Nicola Ross, Helen Rhoades, Bruce Smyth, Maria Vnuk and Lisa Young. Thanks also to Tom Andrews, Briony Horsfall and Anthea Vogl for excellent research assistance. We would also like to thank the following colleagues for their help in various ways throughout the project: Richard Chisholm, Kay Cook, John Eekelaar, Alan Hayes, Daryl Higgins, Wendy Kayler Thompson, Mavis Maclean, Jo Miles, Christine Millward, Lawrie Moloney, Jenny Morgan, Kristen Murray, Kristin Natalier, Patrick Parkinson, Lixia Qu, Grant Riethmuller, Jens Sherpe, Jason Walker and Ruth Weston. We would like to thank the team at OUP for all the support we have received throughout the course of this project. Special thanks to our publishing editor, Michelle Head, and our development editor, Shari Serjeant, for their patience, assistance and valuable input throughout.

Abbreviations AAT Administrative Appeals Tribunal ABS Australian Bureau of Statistics ADTP Australian Divorce Transitions Project AID

artificial insemination by donor

AIFS Australian Institute of Family Studies ALRC Australian Law Reform Commission ANAO Australian National Audit Office ART

assisted reproductive technology

ATO Australian Tax Office AWE

average weekly earnings

BBCSA

Building a Better CSA

CS(A)A

Child Support (Assessment) Act 1989 (Cth)

CS(RC)A

Child Support (Registration and Collection) Act 1988 (Cth)

CSA Child Support Agency, now the Department of Human Services—Child Support (DHS-CS) CSS

Child Support Scheme

DFRDB

Defence Force Retirement and Death Benefit

DHS Australian Government Department of Human Services DHS-CS Australian Government Department of Human Services—Child Support DNA

deoxyribonucleic acid

DSS Australian Government Department of Social Services DSS Australian Government Department of Social Services EAWE

all employees average weekly earnings

ESPR

equal shared parental responsibility

FaHCSIA

Department of Families, Housing, Community Services and Indigenous Affairs

FaHCSIA

Department of Families, Housing, Community Services and Indigenous Affairs

FCCoA

Federal Circuit Court of Australia

FCoA

Family Court of Australia

FCoWA

Family Court of Western Australia

FDR

family dispute resolution

FLA

Family Law Act 1975 (Cth)

FLSR

Family Law (Superannuation) Regulations 2001 (Cth)

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Abbreviations

FMCoA Federal Magistrates Court of Australia (which became known as the FCCoA in 2013; the authors have used FCCoA except when discussing the historical background) FTB

Family Tax Benefit

Full Court of FCoA

Full Court of the Family Court of Australia

HCoA High Court of Australia HILDA Household, Income and Labour Dynamics in Australia HIV

human immunodeficiency virus

HLA

human leukocyte antigen

ICL

independent children’s lawyer

IVF

in vitro fertilisation

LSSF

Longitudinal Study of Separated Families

MA

Marriage Act 1961 (Cth)

MTAWE

male total average weekly earnings

NCSMC National Council for the Single Mother and Her Child PAYE

pay as you earn

PTSD

post-traumatic stress disorder

SRSP

Survey of Recently Separated Parents

SSAT

Social Security Appeals Tribunal

TFR

total fertility rate

Acknowledgments The author and the publisher wish to thank the following copyright holders for reproduction of their material. Commonwealth of Australia for extracts from the Child Support Guide, Family Law Act, House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003) This legislative material is reproduced by permission, but is not the official or authorised version. It is subject to Commonwealth of Australia copyright; Coroners Court of Victoria for extract from Victorian Systemic Review of Family Violence Deaths – First Report; High Court of Australia for case extracts; Jordan Publishing for extract from The Gender Agenda and Relocation Disputes (2012) by Marilyn Freeman and Nicola Taylor, International Family Law; Law Council of Australia of for extracts from Domestic Violence and Abuse of Process (2003) by Belinda Paxton, Australian Family Lawyer and Children Caught in Conflict: The Child Abduction Convention and Australia (2010) by Michael Kirby, Australian Family Lawyer and Spousal Maintenance: Some Recent Cases by Minal Vorah (Paper presented at the Law Council of Australia, Family Law Section, Family Law Intensive, Melbourne, 5 May 2012); Lexis Nexis Australia for extracts from Australian Journal of Family Law, Family Law Reports, Family Court extracts; National Poverty Centre for extract from Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Abuse and Mental Health Problems (Issues paper no 33, NPC Issues, 2010), L. Bromfield, A. Lamont, R. Parker and B. Horsfall; Oxford Journals for extract from International Journal of Law, Policy and the Family; Thomson Reuters (Professional) Australia Limited for extracts from Commonwealth Law Reports (CLR) and Federal Law Reports (FLR) www.thomsonreuters .com.au; UNICEF for extract from The Right to Participation (Fact Sheet); University of Melbourne for extract from Chief Federal Magistrate John Pascoe, Litigants with Mental Illness (Paper presented to the Family and Children’s Law Research Group, Melbourne Law School, University of Melbourne, 10 April 2013); University Of Queensland Press for extract from Talkin up to the White Woman by Aileen Moreton-Robinson, 2000. Every effort has been made to trace the original source of copyright material contained in this book. The publisher will be pleased to hear from copyright holders to rectify any errors or omissions.

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Introduction 1.1 Introduction 1 1.2 Themes 1 1.2.1 Structural complexity and fragmentation  1 1.2.2 Complexity in law and process  3 1.2.3 Complexity of family forms and needs  5 1.2.4 Complex interests  7 1.3

Structure of the book  7

1.1 Introduction In this chapter our main aim is to introduce the book’s overarching theme, namely the challenge of complexity in contemporary Australian family law. This complexity is manifested in a range of contexts, including the constitutional, jurisdictional and organisational contexts; ever-changing and increasingly complicated law and process; the diversity of families and their needs; and the complex and often competing interests relevant to policy formation, reform and the operation of the family law system (1.2). A second aim is to provide an outline of the book’s structure (1.3). One of the significant challenges in writing this book has been to strike the balance between our aim of ensuring its accessibility to a law student readership, while also providing a thematic, contextualised account likely to deepen student understanding and to appeal to a wider range of readers, including family law researchers, policy makers, and practitioners. This aim is rendered more onerous but also more interesting because of the complexities just mentioned.

1.2 Themes 1.2.1 Structural complexity and fragmentation Australia’s federal system of government has historically given rise to significant structural complexity and fragmentation in the area of family law and continues to pose fundamental challenges to the attainment of a cohesive ‘family law system’. In essence, structural complexity arises from the limited power of the Commonwealth Parliament to legislate in relation to family law under Australia’s Constitution (Chapter 2). The division of power to legislate in relation to family law across the federal/state divide 1

2

AUStralian FAMILY LAW: the contemporary context

has underpinned the creation of a multilayered jurisdictional framework, with some family law issues (originally, marriage, divorce and disputes between separating spouses regarding parenting, property and child and spousal maintenance, extended over time to parenting disputes regardless of parental marital status and financial disputes on de facto relationship breakdown) now being matters falling within federal jurisdiction and other family law matters (for example, adoption, child protection, youth justice and laws regarding assisted reproductive technology) falling within state jurisdiction (Chapter 2). Fragmentation is to a degree inevitable in a federal system of government, which by definition involves a federal/state division of the powers of government. In a federal system, fragmentation is also the inevitable product of the breadth of issues affecting families. Even if the Commonwealth Parliament had power to legislate in relation to ‘family law’, there would still be ongoing questions and challenges regarding where the line was to be drawn with regard to what is and is not covered by that term. However, it does lead to the unfortunate position that rather than being informed by the needs of families engaged in the current system, the development of an Australia-wide approach to any given family law issue depends on the location of legislative competence at federal level under a constitutional framework determined in 1901, along with any referrals of power from state parliaments to the Commonwealth Parliament that have taken place since then. The difficulties that have arisen from this situation have been manifested in a range of areas, including the constitutional limits on the Commonwealth Parliament to legislate in relation to ex-nuptial children and in relation to financial disputes arising between separating de facto (cohabiting) partners (Chapter 2). These difficulties have been experienced less in Western Australia (WA) than in other states (Chapter 3), and over time have been reduced elsewhere through the referral of powers by the states, first in relation to ex-nuptial children, and most recently in relation to de facto financial disputes on relationship breakdown (Chapter 2). However, concerns still remain and, given the enormity of the task of rationalising structural fragmentation and overlap, progress is invariably incremental. Meanwhile, the jurisdiction of the family law courts has continued to expand, without necessarily the resources to support an increased caseload. A clear illustration of this point is the interaction between state child protection law and process and federal family law and process relevant to the resolution of postseparation parenting disputes. Problems arise when a family that is the subject of state child protection proceedings is also the subject of an application for parenting orders at federal level. As discussed in Chapter 3, in this area there has been longstanding concern about the implications for vulnerable families of gaps and overlaps between federal and state laws, as well as organisations and agencies that interact with families affected by family violence and child abuse, with the result that those families are subjected to multiple interventions or none. A will to address this at the intergovernmental level is evident and there are indications of change, but the challenges of rationalising overlap, duplication and incoherence remain significant. While it is arguable that the interplay between policy at state and federal level in some areas, for example laws relevant to family violence, de facto financial disputes and relationship recognition (including marriage equality), has been of some advantage in providing multiple sites for debate and policy response and in this way

CHAPTER 1: Introduction

has supported positive change, overall structural fragmentation entails more disadvantage than advantage for families using Australia’s family law system.

1.2.2 Complexity in law and process A significant feature of Australia’s family law system highlighted throughout this book is increasing legislative complexity. Indeed, legislative complexity is evident at every point: the structure and content of the parenting provisions of the Family Law Act 1975 (Cth) (FLA) (including the way parenthood is defined); the introduction in 2008 of a significantly more complex Child Support Scheme (CSS), including a formula that is now applied by using an on-line tool; and financial provisions that have been added to incrementally over many years and now include de facto partner financial disputes determined by additional provisions that in most (but not all) ways mirror those applicable to spousal financial proceedings. Following the enactment of the FLA in 1976, family law has been a site for ongoing legislative change. Since 1996, two main emphases have been to encourage private settlement (particularly in relation to parenting), and to encourage shared post-separation parenting (that is, sharing by parents who have never lived together or no longer live together of responsibility for making major decisions regarding their children (parental responsibility) as well as sharing their daily care (parenting time)) (Chapter 6). A third emphasis has been to protect family members who are victims of family violence and child abuse, although until 2012 this remained subordinate to the first two emphases. This has been of significant concern given empirical evidence showing that concerns about family violence and child safety arise in a substantial proportion of separated families, particularly those who use the family law system (Chapter 5). Australia’s family law system also manifests organisational complexity—that is, in the various fora in which law is applied, in varying degrees and ways. At the pinnacle since 2000 is a court system (outside WA) based on essentially identical jurisdictions exercised by two courts, the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCCoA), with different processes and one registry (Chapter 3). As discussed in Chapter 3, this position has been a source of concern particularly since 2009 for a range of reasons including the duplication of resources. Further, while most parents resolve issues between themselves, since 2006 the extent to which parenting issues are addressed in community sector organisations has increased significantly, although legal advice and advocacy are still sought by a significant minority (Chapter 7). In addition, while most parents have some contact with the CSS, the majority have private arrangements for payment (Chapter 11). The majority of financial (property and maintenance) arrangements are also resolved without use of services, although a substantial minority have some contact with family law system professionals (Chapter 10). As noted in the previous section, for families affected by family violence and child safety concerns, interaction with both federal and state systems may be necessary. As Dewar has summarised: The picture is of a system polarised by pathways, by the dispositions of parties to agreement, by associated disparities of bargaining power, and disparities in access to legal advice and processes. The fundamental features of horizontalisation and

3

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AUStralian FAMILY LAW: the contemporary context

the relative autonomy of multiple sites of interpretation are intensified [since the mid 90s] in ways that seem to have more diverse results—positively in some cases, but negatively in others.1

As Dewar argues, access to advice and assistance is strongly influenced by socio-economic status. Ever-reducing legal aid budgets and narrow eligibility criteria mean that all but parents in the most straitened financial circumstances have to rely on their own resources to pay for legal and other professional support. This is a significant disincentive for many parents in the low-to-middle range economic brackets to pursuing what they may consider to be their legal entitlements. Family law is a jurisdiction in which self-represented litigants are a common occurrence (Chapter 3) and this can exacerbate the legal costs of the represented party, legal aid and the courts. Against this background, the conclusions that can be drawn about the role that family law plays at a social and individual level are contested and uncertain. There are a number of reasons for this. Perhaps the most significant of these is the extent to which law does or does not influence the behaviour and actions of people who do not engage with the formal legal system and even those who do.2 For example, recent research evidence suggests that a very small proportion of parents have any knowledge of the law relevant to their situation,3 and that their understandings may well be inaccurate.4 Further, such evidence also shows that a majority of separated parents do not engage with formal family law system services outside of the Department of Human Services, Child Support (DHS-CS) (Chapter 10). The extent to which people ‘bargain in the shadow of the law’5 is thus variable, depending on their disposition and access to resources to inform their decisions, strategies and outcomes. Despite this, politicians continue to indicate faith in achieving social change through legislative activity. In recent years, this has been manifested in continuing attempts to guide the way decisions are made beginning with the introduction of the CSS in the late 1980s, and extending more recently to a more directive legislative approach to the exercise of broad judicial discretion in relation to the best interests standard in parenting matters. A paradox that arises from this is that, particularly since 1996, legislative reform has increasingly emphasised the importance of private settlement while simultaneously establishing more prescriptive guidelines in complex legislation likely to be understood 1 John Dewar, ‘Can the Centre Hold?: Reflections on Two Decades of Family Law Reform’ (2010) 24 Australian Journal of Family Law 139, 147. 2 For example, Ira Ellman, ‘Why Making Family Law Is Hard’ (2003) 35 Arizona State Law Journal 699; John Eekelaar, ‘Uncovering Social Obligations: Family Law and the Responsible Citizen’ in Mavis Maclean (ed.), Making Law for Families, Hart Publishing, Oxford, 2000, pp 9–28; Dewar, above n 1, Rae Kaspiew, Matthew Gray, Lixia Qu and Ruth Weston ‘Legislative Aspirations and Social Realities: Empirical Reflections on Australia’s 2006 Family Law Reform’ (2011) 33 Journal of Social Welfare and Family Law 397. 3 For example, John de Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011, Australian Institute of Family Studies, Melbourne, 2013; Bruce Smyth, Bryan Rodgers, Jeromey Temple, Vu Son, Marian Esler and Allan Shephard, ‘An Ex-Couples Approach to Understanding Bargaining over Child Support and Parenting Time’, paper presented at the Australian Institute of Family Studies Conference, Melbourne, 7–9 July 2010. 4 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009. 5 Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

CHAPTER 1: Introduction

only by those versed in law. This paradox is also evident in attempts to direct the advice provided by family law system professionals who assist separated families in making parenting arrangements. It is thus evident that the Federal Government has sought to encourage private arrangements and also to influence the content of those arrangements. Three aspects of these strategies are worthy of comment in light of the themes of this book. The first is the tension that this approach raises for the neutrality of mediated outcomes and the process itself (Chapter 7). The second is that the arrangements reached by most people are inconsistent with the directions provided in the legislation. While this may or may not be problematic, it raises a significant question regarding the influence that law can be expected to have. Third, the law has its closest application in adjudicated cases yet the majority of families that are the subject of adjudication have features that are inconsistent with the operation of legislative provisions designed with a range of users in mind, including those who are cooperative and agree privately (Chapter 7). A further layer of complexity relates to the guidance that is offered by decided case law to legal practitioners and the public alike, which is increasingly hard to fathom. The sheer volume of decided cases is enormous, and since 2007 no longer involves selection ‘for publication’ by the FCoA, which along with the FCCoA aims to release reasons for almost every final judgment (Chapter 3). While the increased transparency of decision making is positive, the lack of selection among released cases also means that there is no longer a sense of the Court identifying cases that may offer useful guidance beyond their own factual context. In parenting cases the legislative framework and decision-making pathway are more prescriptive than ever before, but are also more complex and repetitive (see Chapter 8), leading to longer and more formulaic written judgments. Furthermore, the presence of self-represented litigants at appeal stage results in both property and parenting cases that are not well argued and have an impact upon the ability of the resulting decisions to articulate guiding principles.

1.2.3 Complexity of family forms and needs Social complexity arising from family diversity is evident at a range of levels: the ‘chaos of intimacy’,6 diversity in values (meaning there is no homogenous view on the preferred way to partner or raise children); diversity arising from cultural, Indigenous and religious background and socio-economic status; and complexity arising from the spectrum of individual and family functioning (families who engage most deeply with the family law system being less likely to be high functioning). Also relevant are individual factors, and the personal characteristics that affect the way each member of a separated family may or may not adjust to their changed circumstances following relationship breakdown. Existing approaches are limited in the extent to which they can respond to diversity manifested in this range of ways, as illustrated by current family law approaches to defining family relationships (Chapter 4), and the struggle of the family law system to cope with the spectrum of vulnerability that characterises those who have most need to access it (Chapters 5, 6 and 7). This spectrum includes a proportion of families with an entrenched 6 John Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 Modern Law Review 467.

5

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AUStralian FAMILY LAW: the contemporary context

level of vulnerability and disadvantage, commonly including issues related to family violence, child safety, substance misuse, and mental ill-health. This proportion increases as families proceed through the family law system (Chapters 5 and 7). Indeed, many matters dealt with in the family law system, particularly by courts and to a significant but lesser extent in family dispute resolution (FDR), have similar features to those dealt with in the child protection system, albeit to a generally less extreme extent. The problem here is that the legislation and the system are predicated on private law system principles and resourcing levels, while child protection is invariably conceived of as a state law matter with a state-funded infrastructure. What has become increasingly obvious in recent years is the need for family law agencies and processes to be adapted to address the level of complexity manifested by many users, particularly in cases of family violence and child abuse given the prevalence of these harms in the community generally, including in separated families. In the federal sphere, this is reflected in legislative reform since 2012 to better identify and address the issues that arise in family violence and child abuse cases. Additionally, there has been increasing focus on better and more extensive screening for family violence and child safety across the system (Chapter 5). To a large extent, our understandings of complex family dynamics (including but not limited to family violence) have been developed through the social sciences, ranging through clinical, empirical and theoretical perspectives based in psychology, psychiatry and sociology. This highlights the extent to which family law is an interdisciplinary arena. This has been the case since the enactment of the FLA, which included the establishment of the specialist FCoA in 1976. The marriage between family law and social sciences is, however, a complex and not always agreeable one. In recent years, this has been manifested in research documenting the tensions and challenges of cross-disciplinary practice in family law.7 In addition, two further issues regarding the use of social sciences evidence in family law disputes have assumed particular significance in recent years. The first is the contested and evolving relationship between family law policy and practice and social science research. Social science evidence comprises a varied, ever-developing and contingent body of work. In fact, so diverse and extensive is the literature in areas relevant to family that reaching conclusions that will apply in every case is untenable. Indeed, the capacity for social sciences to offer consistent and coherent guidance either at the general level of policy or the specific level of practice in family law has become the subject of recent debate (Chapter 6). The second aspect is the extent to which social science research can validly be drawn on to inform decisions in individual cases. In recent years, the use of social sciences research 7 Helen Rhoades, Hilary Astor and Ann Sanson, ‘A Study of Inter-Personal Relationships in a Changing Family Law System’ (2009) 23 Australian Journal of Family Law 10; Rae Kaspiew, John De Maio, Julie Deblaquiere and Briony Horsfall, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases, Australian Institute of Family Studies, Melbourne, 2012; Lawrie Moloney, Rae Kaspiew, John De Maio, Julie Deblaquiere, Kelly Hand and Briony Horsfall, Evaluation of the Family Relationship Centre Legal Assistance Partnerships Program Final Report, Australian Government, Australian Institute of Family Studies, Melbourne, 2011; Georgina Dimopoulos, ‘Gateways, Gatekeepers or Guiding Hands? The Relationship between Family Relationship Centres and Legal Practitioners in Case Management and the Court Process’ (2010) 24 Australian Journal of Family Law 176.

CHAPTER 1: Introduction

in judicial decision making has been the subject of appellate court concern8 as a well as academic critique.9 A central concern is the tension between the task of judicial decision making on a case-by-case basis and the fact that the findings of social science research reflect general conclusions drawn from the sample studied, and influenced by the methodology used to collect and analyse data as well as the values applied in that data’s interpretation. A detailed consideration of these matters is beyond the scope of this book, but the issue needs to be acknowledged as part of the contemporary landscape.

1.2.4 Complex interests Family law policy, practice and decision making deal with a range of public and private interests. The private interests at stake include those of the individuals within separated families. The public interests include those of governments, courts and organisations that provide services to those families and the broader community, and taxpayers who fund the costs of assisting separated families. Amid all of these interests are those of children. The centrality of their needs in informing family law policy and practice continually needs to be re-emphasised. In among the competing range of individual, organisational and political interests in shaping family law policy and practice, children are the stakeholders who have the least opportunity to engage in public debate, yet it is their interests that are most often directly affected. Policy debates tend to be adult-focused and driven by the particular imperatives of institutions, organisations and political groups. In recent years, debates in significant family law areas including child support and parenting laws have been polarised along gender lines. This polarity allows little scope for consideration of children’s needs and perspectives in developing policy. There is a risk that children’s needs and perspectives will be deployed to support the arguments of adults, rather than being considered in their own right. A central challenge for family law policy, reform and practice in the contemporary era is to better accommodate children’s interests in practice and policy, while also being sensitive to the variable extent to which children may wish to and be able to participate in these areas given their developmental stage, disposition and family circumstances.

1.3 Structure of the book One of the challenges in writing this book has been to strike the balance between our aims of providing a coherent and accessible overview of the law in this area to students, while also engaging in a depth of analysis that continually exposes contradictions and encourages a deeper understanding of family law, and provides a thematic, contextualised account that draws on a range of empirical, interdisciplinary, and theoretical perspectives.

8 For example, McGregor and McGregor [2012] FamCAFC 69; Maluka and Maluka [2011] FamCAFC 72. 9 For example, Zoe Rathus, ‘A Call for Clarity in the Use of Social Science Research in Family Law Decision-Making’ (2012) 26 Australian Journal of Family Law 81; Richard Chisholm, ‘Risks in Using Social Science Publications’ (2012) 26 Australian Journal of Family Law 78.

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Given our primary audiences, the topic areas covered by this book are those typically covered in university family law courses, namely: • the constitutional and jurisdictional frameworks; • relationship recognition (including the law of marriage and divorce); • family violence; • resolving disputes between adults (usually parents) over children’s care (including processes); • the obligation of parents who no longer live together to financially support their children; and • the consequences of marriage and de facto partner relationship breakdown, for property distribution and maintenance (including processes). We acknowledge that our coverage reflects a selective view of the range of issues affecting families that could be included in a definition of ‘family law’ (not extending, for example, to the law on child protection outside the context of relationship breakdown, adoption, abortion, and assisted reproduction). The scope of this book, however, is considerably wider than that covered in the usual university family law course curriculum. The structure of the book has also been influenced by our primary audiences, with the topic order offering no real surprises to family law teachers. The constitutional (Chapter  2) and jurisdictional (Chapter 3) chapters are really two sides of the same coin: the focus of Chapter 2 is ‘what matters the federal government could make laws about’ (the ‘macro’ perspective), while Chapter 3 is concerned with ‘what grants of jurisdiction to courts have been made’10 (the ‘micro’ perspective, being the powers of particular courts in the family law ‘system’). These chapters provide the wider context for Chapter 4, which examines the sorts of ‘family’ relationships that are recognised by state and federal law (including the law of marriage and divorce) and the ideologies of family that underlie the operation of law in this area. Our placement of Chapter 5, which deals with family violence, after our chapter on relationship recognition and family ideology but before our chapters on parenting orders and financial aspects of relationship breakdown, is consistent with the empirical reality that violence is a significant issue in both intact and separated families, and is a core aspect of many parenting and financial disputes. With this backdrop in mind, we then consider broader social context, process and substantive law for the resolution of parenting disputes (Chapters 6–9). Our consideration of financial aspects of relationship breakdown similarly addresses the broader social context (Chapter 10) followed by child support (Chapter 11) and process and substantive law for the resolution of financial (property and maintenance) disputes between separated married and de facto partners (Chapters 12–15). We conclude in Chapter 16 with some thoughts about the future of Australian family law.

10 Patrick Parkinson and Juliet Behrens, Australian Family Law in Context: Commentary and Materials, 3rd edn, Butterworths, Sydney, 2004, p 227.

CHAPTER

2

Structural Fragmentation: The Constitutional Framework 2.1 Introduction 9 2.2 Family law and the Australian Constitution 10 2.3 How have Parliament’s powers been interpreted?  13 2.3.1 The divorce and matrimonial causes power  14 2.3.2 The marriage power  16 2.4

Extending Parliament’s legislative power  17 2.4.1 Referral of powers  18 2.4.1.1 Children 18 2.4.1.2 Financial disputes on de facto partner relationship breakdown  20 2.4.2 The intrinsic limits of the marriage power? Marriage equality  22

2.1 Introduction Although they may initially seem a dry and abstract area of Australian family law, the constitutional and jurisdictional frameworks arising from our federal system of government have continuing and significant practical effects on the pathways available to families to resolve their family law disputes. In this area we see ‘fragmentation’ of Australian family law at its most fundamental level, with the state–federal divide underpinning the development and shape of the substantive law. This was illustrated recently in Commonwealth v ACT1 (2.4.2) in which the High Court of Australia (HCoA) unanimously held that an Australian Capital Territory (ACT) Act providing for marriage equality for same-sex couples was of no effect due to inconsistency with the federal Marriage Act 1961 (MA), thus making it clear that the Commonwealth Parliament has power under the Australian Constitution to legislate with respect to same-sex marriage. As this example begins to illustrate, although the division between state and federal legislative power is fundamental to the Australian legal system more generally, the problems it raises have had particularly direct and negative effects on families. These effects have been ameliorated over the years, particularly by the states’ referral (with the exception of Western  Australia (WA)—see Chapter 3—of some relevant legislative powers to the 1 The Commonwealth of Australia v the Australian Capital Territory (Commonwealth v ACT) [2013] HCA 55. 9

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Commonwealth, although some problems still persist. An area of ongoing concern involves families in which parents (married or not) are embroiled in a parenting dispute where a child protection issue is raised, who may find themselves in both the state Children’s Court and the federal Family Court of Australia (FCoA) or Federal Circuit Court of Australia (FCCoA) due to the fragmentation of legislative power in our federal system (Chapter 3). However, this example also illustrates that resolution of fragmentation across the state– federal divide is no simple matter. In this chapter, we consider constitutional issues arising from the division of legislative powers between the Commonwealth and the state parliaments resulting from section 51 of the Australian Constitution (2.2). Our discussion is relatively brief given that this is not an area that has proved contentious in recent years, except in the area of legislating for marriage equality. We look at HCoA interpretations of the Commonwealth Parliament’s power to make laws in relation to ‘marriage’ and ‘divorce and matrimonial causes’, and from an early stage begin to see a generally cautious interpretive approach (2.3). As a result, the HCoA has maintained a high level of control over the FCoA.2 The pattern over the years has been for the Full Court of the FCoA (on the basis of unclear HCoA authority) to take an expansive view of section 51 (and thus of its own jurisdiction), triggering an appeal in which the HCoA takes a more cautious approach. Thus the HCoA has reined in the FCoA’s jurisdiction on the particular point considered while offering little clear guidance for the future, often reflecting in its approach ‘a certain remoteness from the everyday work of the Family Court’.3 After considering how the Commonwealth Parliament’s legislative powers have been interpreted, we look at possible ways in which they may be expanded, in particular, by referrals of power by the states to the Commonwealth Parliament. In Chapter 3, we consider the flow-on jurisdictional effects of the Commonwealth’s limited constitutional powers to legislate in family law—that is, the scope of the authority of various courts deciding cases under the Family Law Act 1975 (Cth) (FLA), focusing mainly on Australia’s two federal family law courts: the FCoA and the FCCoA. In the final part of Chapter 3 we conclude with an examination of the intersection of state child protection laws and federal family laws, as an area in which problems for families arising from the state–federal divide continue to be experienced.

2.2 Family law and the Australian Constitution Family law has only become a generally recognised subdiscipline of law in fairly recent times, and especially following the enactment of the FLA. Even then, the areas of ‘family law’ covered by the FLA were limited to regulating the arrangements made in the event of marriage breakdown—in essence, the rules regulating divorce, and resolution of the arrangements of separating spouses regarding children, property, and financial matters— and so represented a narrow range of the laws relevant to family practices. Although this position has gradually changed (largely due to referrals of legislative power from the states 2 Juliet Behrens, ‘Family Law’, in Tony Blackshield, Michael Cope and George Williams (eds), The Oxford Companion to the High Court of Australia, Oxford University Press, Melbourne, 2001, p 270. 3 ibid., p 269.

CHAPTER 2: Structural Fragmentation: The Constitutional Framework

to the Commonwealth: 2.4), many issues that we might class as family law issues remain outside the legislative domain of the Commonwealth Parliament and so are not covered by the FLA or other federal legislation. This is at least partly because under the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution) the Commonwealth Parliament has no general legislative power with respect to ‘family law’.4 Under the Constitution, the Commonwealth Parliament’s power to legislate in relation to family law extends most clearly to ‘marriage’ and to ‘divorce and matrimonial causes’. The centrality of marriage to the Commonwealth Parliament’s powers in family law is historically not surprising. At the time of Federation in 1901, the focus of the framers of the Constitution was on ensuring consistent recognition of a person’s married—and divorced— status throughout the country.5 The legal regulation of marriage and divorce was prompted by concern in 18th-century England over clandestine marriages, which ‘had considerable effects on the legitimacy of children and the devolution of property’,6 followed by concern over the difficulty and expense of obtaining a divorce.7 The approach of the framers of the Constitution was in line with these broader concerns, and no general power to make laws in relation to families was given to the Commonwealth Parliament when legislative powers within the Commonwealth were reallocated at Federation. Admittedly, however, even if the Constitution had included a power to legislate in relation to ‘families’, the way in which that term was interpreted would not have remained static. Questions would have still arisen over time regarding the extent to which this head of power reflected increasing social acceptance of the diversity of family forms (Chapter 4). The heads of Commonwealth legislative power are set out in section 51 of the Constitution. The main heads of power relating to families are section 51(xxi) and (xxii): The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: (xxi) marriage; (xxii) divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants.

In addition, other section 51 heads of power may be used where it is appropriate to legislate in relation to families. For example, legislative reform of the FLA to allow superannuation splitting (Chapter 14) may be supported on the basis of the marriage power, with the corporations power (section 51(xx)) and the pensions power (section 51(xxiii)) also being relevant. Another basis that has been utilised in the family law context is the external affairs power (section 51(xxix)) (3.4.1). 4 Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 148 CLR 383; [1981] HCA 8, 402 (Barwick CJ), 416 (Stephen J). 5 See further Henry Finlay and Rebecca Bailey-Harris, Family Law in Australia, 4th edn, Butterworths, Sydney, 1989, p 61; Henry Finlay, Adrian Bradbrook, and Rebecca Bailey-Harris, Family Law: Cases, Materials and Commentary, 2nd edn, Butterworths, Sydney, 1993, p 38. See also Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 (Russell v Russell), 546 ( Jacobs J). 6 Stephen Parker, Informal Marriage, Cohabitation and The Law, 1750–1789, St Martin’s Press, New York, 1990, p 37. 7 See further Patrick Parkinson, Australian Family Law in Context: Commentary and Materials, 5th edn, Thomson Reuters, Sydney, 2012, pp 92–3.

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The legislative powers in section 51 are supported by section 51(xxxix)—known as the express incidental power—which gives the Commonwealth Parliament power to legislate on ‘matters incidental to the execution [our emphasis] of any power vested by this Constitution in the Parliament’. In addition, the HCoA has held that attached to every express grant of power in the Constitution is an implied grant of power wide enough to make the express grant effective.8 This is called the ‘implied incidental power’. Its effect is that power to make laws on the specific matters set out in section 51(i) to section 51(xxxiii) extends to matters incidental to the subject matters (again, our emphasis) dealt with in those paragraphs. As a result of these two types of incidental power, a question from the outset has been to what extent the Commonwealth Parliament can make laws regarding matters ancillary and consequential to the matters set out in section 51. We return to this question later in the chapter (2.3). Three further points are important to understanding the basic constitutional framework for Australian family law. First, the HCoA has held that a law may be valid on the basis of more than one head of power, and that an individual grant of power under the Constitution should be accorded full operation according to its terms.9 So, for example, the content of the section 51(xxii) matrimonial causes power does not limit the scope of the marriage power in section 51(xxi).10 Second, when the Commonwealth Parliament legislates pursuant to section 51, that legislation overrides any inconsistent state laws to the extent of the inconsistency (section 109 of the Constitution). So, for example, when the Commonwealth Parliament first exercised its legislative powers to make laws in relation to marriage, divorce, and matrimonial property and parenting disputes in the 1960s (2.3), it seemed relatively clear that the Commonwealth Parliament had ‘covered the field’ in these areas and as a result state laws trespassing into these areas would be inconsistent with that Commonwealth legislation. Yet more broadly, there is still scope for the application of section 109 in family law. For example, section 109 has been invoked to invalidate state laws limiting women’s access to fertility treatments on the basis of their marital status as such laws are inconsistent with the Sex Discrimination Act 1984 (Cth) section 22.11 Further, the Commonwealth Parliament has much greater power to override laws made by ACT and Northern Territory legislatures than it has to override laws made by state parliaments due to section 122 of the Constitution, which empowers the Commonwealth Parliament to make laws for the government of territories.12 This was demonstrated by the Howard government’s intervention in relation to the ACT’s attempt in 2006 to legislate for same-sex unions (4.2.3.2.2). In Commonwealth v ACT13 (2.4.2), the Marriage Equality (Same Sex) Act 2013 (ACT) was held to be of no effect because it 8 D’Emden v Peder (1901) 1 CLR 91; [1904] HCA 1. 9 Russell v Russell (1976) 134 CLR 495; [1976] HCA 23, 539 (Mason J), 550 ( Jacobs J). Stephen J agreed with Mason J on this issue: 535. 10 ibid., 495. 11 See further McBain and the State of Victoria [2000] 99 FCR 116; Adiva Sifris, ‘Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples’ (2004) 30 Monash University Law Review 229. 12 Northern Territory v GPAO (1999) 196 CLR 553, [1999] HCA 8. 13 Commonwealth v ACT [2013] HCA 55.

CHAPTER 2: Structural Fragmentation: The Constitutional Framework

was inconsistent with a federal law (the MA) under section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (if the case had involved a state, section 109 of the Constitution would have been relevant). Third, the state parliaments can refer their legislative powers over specific matters to the Commonwealth Parliament so that those matters can be the subject of federal legislation. Under section 51(xxxvii) of the Constitution, the Commonwealth Parliament can make laws with respect to: matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

As discussed later (2.4.1), in the 1980s all states except WA referred certain of their powers in relation to children to the Commonwealth Parliament, with the exception of child protection, juvenile justice, and adoption.14 In the early 2000s all states except WA and South Australia (SA) referred powers to the Commonwealth regarding property and maintenance disputes between separating de facto partners (SA subsequently referred) (2.4.1.2). The HCoA decisions now discussed relate to the Commonwealth Parliament’s power to legislate in relation to children before the first referral. An understanding of them is needed in order to appreciate why the referral was necessary, and the practical problems that have resulted (and that may continue to result in other areas) from the HCoA’s interpretation of section 51 of the Constitution as well as the jurisdictional constraints of our federal family law courts.

2.3 How have Parliament’s powers been interpreted? Given the limited bases of Commonwealth legislative power in relation to families, the breadth of interpretation of the section 51 heads of power has always been an important issue. Central here has been the recognition that the ambit of the powers is interpreted to reflect social changes over time.15 The question has thus always been where—at a particular point in time—the limits of the Commonwealth Parliament’s legislative powers will be drawn by the HCoA. In the family law area, cases interpreting the section 51 heads of power did not arise until quite recently. Before Federation the various colonies or states enacted divorce legislation (beginning with SA in 1858, following the enactment in England of the divorce and matrimonial causes legislation of 1857),16 child custody legislation (from the 1840s, in the

14 Section 3(2) of each of the Commonwealth Powers (Family Law—Children) Act 1986 (NSW); Commonwealth Powers (Family Law—Children) Act 1986 (Vic); Commonwealth Powers (Family Law—Children) Act 1986 (SA); Commonwealth Powers (Family Law—Children) Act 1987 (Tas); Commonwealth Powers (Family Law—Children) Act 1986 (Qld). 15 For example Lansell v Lansell (1964) 110 CLR 353; [1964] HCA 42, 366 (Taylor J), 369 (Menzies J) (Lansell). 16 Divorce and Matrimonial Causes Act 1857, 20 & 21 Vict, c 85. See further Henry Finlay, To Have but Not to Hold: A History of Attitudes to Marriage and Divorce in Australia 1858–1975, Federation Press, Sydney, 2005; Margaret Harrison, ‘Book Review: To Have but Not to Hold: A History of Attitudes to Marriage and Divorce in Australia 1858–1975 by Henry Finlay’ (2006) 30 Melbourne University Law Review 594.

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wake of a 1839 English Act known as Lord Talfourd’s Act),17 and maintenance legislation for deserted wives and children.18 After Federation, the Commonwealth Parliament did not exercise its powers under section 51(xxi) and (xxii) of the Australian Constitution to make laws in relation to separating families to any great extent for almost 60 years and so state laws continued to apply. Over that period Victoria was the only state to enact legislation regarding division of matrimonial property, departing in 1962 from the application of the law of property to provide a legislative presumption of equality of ownership of the family home.19 It was not until 1959 that the Commonwealth Parliament enacted the Matrimonial Causes Act 1959 (Cth) and the MA. Both Acts came into operation in 1961. The Matrimonial Causes Act dealt with certain aspects of marriage breakdown, providing for what is referred to in family law as ‘principal relief ’ (which then included other judicial remedies as well as divorce and decrees of nullity, but is now restricted to these),20 and ‘ancillary relief ’: in particular, property, spousal maintenance, and parenting orders.21 The Matrimonial Causes Act was later replaced by the FLA, which came into effect on 5 January 1976. Since the 1960s, the HCoA has considered the scope of the marriage power on a number of occasions. In contrast, little detailed consideration has been given to the scope of the divorce and matrimonial causes power. The question that has consistently arisen is the extent to which the heads of power set out in section 51(xxi) and (xxii) support Commonwealth laws regarding ancillary and consequential matters. Specifically, does the marriage power allow the Commonwealth Parliament to confer jurisdiction upon courts to make parenting, property and spousal maintenance orders where there are no associated divorce proceedings? And to what extent does the marriage power provide a basis for legislation that affects the interests of third parties to the marriage? These questions are now considered.

2.3.1 The divorce and matrimonial causes power Under section 51(xxii) of the Constitution, the Commonwealth Parliament has the power to legislate in respect of divorce, matrimonial causes, and ‘in relation thereto’, the custody and guardianship of children. The section 51(xxii) powers in relation to children are thus limited to the ‘divorce and matrimonial causes’ context.22 Indeed, section 51(xxii) is sometimes referred to in a shorthand way as the ‘divorce and matrimonial causes power’. ‘Divorce’ in section 51(xxii) has not proved to be a contentious term. The greatest uncertainty regarding section 51(xxii) relates to the ambit of the term ‘matrimonial causes’. 17 Constance Backhouse, ‘The Mother Factor in Australian Child Custody Law, 1900–1950’ (2000) 6 Australian Journal of Legal History 51, 63–4. See also Colin James, ‘The Father Factor in Australian Child Custody Law in the 20th Century’ (2006) 10 Australian Journal of Legal History 210. 18 See further Lisa Young, Geoffrey Monahan, Adiva Sifris and Robyn Caroll, Family Law in Australia, 8th edn, LexisNexis Butterworths, Chatswood, 2012, p 592. 19 Marriage Act 1958 (Vic) s 161(4)(b). See further Young et al., above n 18, p 707. 20 Prior to the FLA, ‘principal relief ’ also included proceedings for a decree of judicial separation, restitution of conjugal rights, and jactitation of marriage (prohibiting a party from holding him/herself out as being married). 21 At that time, orders for custody, guardianship, and access: see 6.3. 22 Also, in Re F, the HCoA held that ‘infants’ must be children of the marriage: Re F; Ex parte F (1986) 161 CLR 376; [1986] HCA 41 (Re F ).

CHAPTER 2: Structural Fragmentation: The Constitutional Framework

The central question is: given that section 51(xxii) also refers to ‘divorce’ and ‘parental rights, and the custody and guardianship of infants’, what remain as ‘matrimonial causes’? At most, the phrase could include all proceedings between spouses that relate to their matrimonial relationship, but section 51(xxi) and the remainder of section 51(xxii), along with HCoA interpretation, count against this expansive construction. At the least, the term could signify no more than proceedings for ‘principal relief ’—now meaning divorce (already expressly referred to in section 51(xxii)) and decrees of nullity. Judicial interpretation suggests that the answer lies somewhere between these two extremes. The cases indicate that the term ‘matrimonial causes’ in section 51(xxii) does not cover all proceedings between spouses, but does include proceedings for principal relief and matters that are subsidiary and consequential to proceedings for principal relief (for example, proceedings for alteration of property interests that are brought in association with proceedings for divorce). Only three HCoA cases, though, have considered the power in any detail: Lansell,23 Russell v Russell,24 and Re F.25 The consistent message throughout these cases is that ‘matrimonial causes’ does not include all proceedings between husband and wife. Laws allowing proceedings for principal relief are certainly justified on the basis of the power. Outside of this, for a law to be valid under the ‘matrimonial causes’ power, there must be a link, although not necessarily a temporal link,26 between the proceedings allowed by the law (for example in Lansell, for property orders) and proceedings for principal relief, such that the application is incidental to principal relief sought under the FLA. When reading the relevant cases, it is important to keep in mind that ‘matrimonial causes’ as it is used in section 51(xxii) has a narrower meaning than ‘matrimonial causes’ as used in section 4 of the FLA (see also Chapter 13). In the FLA, the term ‘matrimonial causes’ (as well as reflecting the referrals of power (2.4.1), FLA Part VII Subdivision F regarding parenting disputes and more recently the term ‘de facto financial causes’ in FLA sections 4(1) and 90 CRC regarding de facto financial disputes is used to define the jurisdiction of the FCoA and other courts exercising jurisdiction under the Act, via a list of proceedings. Proceedings that constitute a ‘matrimonial cause’ can only be instituted under the FLA (FLA section 8(1)(a)) so to this extent state laws and jurisdiction, and general law remedies (such as the law of constructive and resulting trusts, and estoppel), have been superseded. Some of the proceedings listed in the section 4 definition are based on the section 51(xxii) matrimonial causes power, while others are based on the section 51(xxi) marriage power, and some on both powers. The list has been ‘carefully tailored’27 to ensure that when courts exercise jurisdiction under the FLA, the exercise will be within the Commonwealth Parliament’s legislative power.28 Constitutional challenges have often resulted in amendment of the FLA Lansell (1964) 110 CLR 353; [1964] HCA 42. Russell v Russell (1976) 134 CLR 495; [1976] HCA 23. Re F (1986) 161 CLR 376; [1986] HCA 41. Although there are some limits to this: see FLA s 44(3), which provides that property and spousal maintenance proceedings must be initiated within one year of a divorce order or a decree of nullity being made, except with leave of the court (for de facto relationships, the period is two years: FLA s 44(5)). This is consistent with FLA s 81 (duty of the court to end financial relations; see s 90ST for de facto relationships), underlining the policy that financial relationships between spouses who divorce or have their marriage annulled should be, where possible, ended within a reasonable period after the marriage has ended (the ‘clean break’ principle). See further Chapters 13 and 15. 27 Parkinson, above n 7, p 166. 28 A recent example is FLA Part VIIIAA: 14.2.1. 23 24 25 26

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definition of ‘matrimonial causes’ to bring court jurisdiction back into line with current HCoA interpretation regarding the limits of Commonwealth legislative power.

2.3.2 The marriage power After several decades of debate, the scope of the marriage power remains unclear. The main problem is that, although criteria for making this assessment have evolved in various HCoA cases, it is difficult to predict whether in any given case a law will meet those criteria. Four main points emerge from the cases: 1. To be constitutionally valid, legislation enacted on the basis of the marriage power must relate to a matter that ‘arises out of, or is sufficiently connected with, the marriage relationship’.29 2. The marriage power does support legislation allowing custody, guardianship, access,30 and child maintenance31 proceedings independent of any application for principal relief. The marriage power, however, does not allow the Commonwealth Parliament to legislate in relation to a child who is not the child of a marriage (that is, a child whose parents have not married, or who is the child of only one of the parties to a marriage). 3. The marriage power does not support legislation allowing property proceedings between parties to a marriage unless the proceeding arises out of their marriage. As discussed below, some uncertainty still exists in relation to which proceedings will be excluded on this basis. 4. The marriage power can provide a basis for legislation that affects third parties, either positively or negatively, although some significant limits have been imposed (Chapter 14). These principles have emerged from HCoA cases over the past 45 years, including the Marriage Act Case,32 Russell v Russell 33 and Lambert.34 Ultimately, however, as Anthony Dickey has observed, the position remains that only an appreciation of the current attitudes of the HCoA in relation to section 51 and the marriage power in particular will provide more concrete guidance as to what criteria will be used to determine constitutional validity.35 In 1994, the HCoA considered the marriage power in P v P.36 The Court upheld, on the basis of the marriage power, FLA section 64(1)(c) (now section 67ZC), which provides the

29 P v P (1994) 181 CLR 583, 600; [1994] HCA 20, [16] (Mason CJ, Deane, Toohey, and Gaudron JJ). 30 Now all covered by the term ‘parental responsibility’: see Chapters 6 and 8. 31 While this is also an aspect of parental responsibility, financial support of children of separated parents is now in most cases determined under the Child Support Scheme (CSS): see Chapter 11. 32 Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; [1962] HCA 37 (Marriage Act Case). 33 Russell v Russell (1976) 134 CLR 495; [1976] HCA 23. 34 R v Lambert; Ex parte Plummer (1980) 146 CLR 447; [1980] HCA 52 (Lambert). 35 Anthony Dickey, Family Law, 6th edn, Thomson Reuters, Sydney, 2013, p 30. 36 P v P (1994) 181 CLR 583; [1994] HCA 20.

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court with jurisdiction to make orders relating to the ‘welfare’ of children (see 2.4.1.1). It was held in P v P that the grant of legislative power in section 51(xxi) encompasses: [l]aws dealing with the protection or welfare of children of a marriage in so far as the occasion for such protection or welfare arises out of, or is sufficiently connected with, the marriage relationship … The authorization of medical treatment of an incapable child of a marriage, including medical treatment of the kind involved … in this case, is something which is directly related to the protection and welfare of the particular child and which arises out of, and is itself an aspect of, the relevant marriage relationship.37

As discussed in Chapter 3 (3.4.1), one of the purposes for which the FCoA has used its welfare jurisdiction has been to authorise the sterilisation of girls with intellectual disabilities where the parents of the girl are married: P v P was such a case. Most recently, the HCoA in Stanford38 (Chapter 13) held that a proceeding for property  settlement instituted on behalf of a wife in circumstances where her illness had resulted in her living away from her husband without their marriage having ended was a proceeding arising out of the marital relationship, and thus a ‘matrimonial cause’ within FLA section 4(1). When the wife died, the proceedings continued by her personal representatives ‘remained a claim arising out of the marital relationship of the parties’.39 The fact that the only persons who stood to benefit were the wife’s children from a previous relationship did not alter this.

2.4 Extending Parliament’s legislative power Our discussion so far has suggested that, with the notable exception of Commonwealth v ACT (2.4.2) the HCoA has interpreted the ‘marriage’ and ‘divorce and matrimonial causes’ powers cautiously, and in a way that often provides no clear guidance regarding whether a new law will fall within Commonwealth legislative power. Options for overcoming the limits of Commonwealth (and state) legislative power certainly exist and in practical terms any change that involves reallocating powers in our federal system is always difficult to achieve. Although amending the Constitution would seem an obvious course of action, history shows that changing the Constitution by referendum is difficult: in order for a referendum to succeed, the majority of voters in a majority of states must vote in favour of the proposal.40 Of the 44 referenda held since Federation only eight have been carried.41 More realistic (although certainly not straightforward) options for increasing Commonwealth legislative power are a referral of state legislative power to the Commonwealth Parliament, and reconsideration of the intrinsic limits of the marriage power. 37 38 39 40 41

ibid., 600 (Mason CJ, Deane, Toohey and Gaudron JJ). Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52, [29] (Stanford). ibid., [29] relying on Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61. Australian Constitution, s 128. Australian Electoral Commission, Referendum Dates and Results 1906–Present, 24 October 2012, .

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To date, proposals for constitutional change in family law have involved increasing the Commonwealth Parliament’s legislative power, rather than the Commonwealth ceasing to legislate in the area and thus leaving this to the states by default (as was the position before the Matrimonial Causes Act and the MA: see 2.3). The main benefit of a centralised approach is that the Commonwealth Parliament can legislate nationally, thus reducing the fragmentation that results from each state legislating differently on the same issue (financial disputes between de facto partners on relationship breakdown are a good example of this; see 2.4.1 and 2.4.1.2). Centralising legislative power is, however, not unproblematic, as the ACT experience in relation to legislating for marriage equality suggests (2.2 and 4.2.3.2.2). It is at least arguable that a less centralised approach offers the capacity to develop, tailor and refine legislative options at a more local level before working towards a uniform national position, and that this is a strength of our current system that we should be careful not to undermine.

2.4.1 Referral of powers As noted earlier, section 51(xxxvii) of the Constitution allows the state parliaments to refer their legislative powers over specific matters to the Commonwealth Parliament so that those matters can be the subject of federal legislation. This approach would seem to be a more effective and immediate avenue for reform than amending the Constitution. Referrals of power are, however, usually difficult and slow to achieve because they involve a loss of legislative power by the states, and proponents need to attract political support from the various states for them to be effective across Australia. Despite these difficulties, in the family law area an important referral was made in relation to children in the late 1980s and another important referral was made in relation to de facto partner financial disputes in the early 2000s. These referrals are now discussed.

2.4.1.1 Children It is evident from our discussion so far that not all children are covered by section 51(xxi) and  section 51(xxii) of the Constitution. In particular, neither head of power has been interpreted by the HCoA as including the power to make maintenance, custody, guardianship and access orders42 regarding a child who is not the child of a marriage (see 2.3.2). This position continued despite amendments to the FLA in 1983, when the Commonwealth Parliament widened the category of children covered by the Act to include almost all children who were ordinarily members of the household of the husband and wife.43 In subsequent HCoA challenges, the Court made clear that the marriage power extends (at least for the purposes of laws on child custody and guardianship, as they were then called) only to children who are natural children of the husband and wife (born before or after their marriage) and children adopted by both of them.44 42 Marriage Act Case (1962) 107 CLR 529; [1962] HCA 37; these are now all aspects of parental responsibility: see Chapters 6 and 8. 43 Family Law Amendment Act 1983 (Cth). 44 In the Marriage of Cormick; Salmon Respondent (1984) 156 CLR 170; [1984] HCA 79; (Cormick); R v Cook; Ex parte C (1985) 156 CLR 249; [1985] HCA 47; Re F (1986) 161 CLR 376; [1986] HCA 41.

CHAPTER 2: Structural Fragmentation: The Constitutional Framework

This situation caused problems for unmarried couples with children and for blended families. For example, in a parenting dispute between a married couple where the children ordinarily living in the household included children of the marriage and also children of previous relationships of either spouse, both state proceedings (in relation to ex-nuptial children) and federal proceedings (in relation to nuptial children) would have had to be commenced. This would have been the case in relation to obtaining both custody and guardianship orders (now parenting orders) and child maintenance orders. This position changed when, between 1986 and 1990, all state parliaments except WA (3.5.1) referred the majority of their legislative powers with respect to children to the Commonwealth Parliament.45 All states also reserved the right to terminate the reference of powers at any time by proclamation.46 The statutes that refer state legislative power all cover three broad areas: (1) custody, guardianship and access; (2) child maintenance; and (3) child-bearing and child expenses.47 Also, it has been held that jurisdiction in these areas includes any matters that are ancillary to them.48 For example, it has been found that the subject of child maintenance includes the determination of the parentage of a child who is the subject of maintenance proceedings.49 Missing, though, from the list of referred powers is any reference to child ‘welfare’. When the state parliaments referred their powers, all of them excluded the power to affect the operation of state child welfare legislation.50 Thus while there has been some dispute over the implications of the ‘welfare’ exclusion,51 it is at least clear that although the making of parenting orders in relation to ex-nuptial as well as nuptial children now falls within the domain of Commonwealth legislative power, child protection (along with the often related area of youth justice) remains the domain of the states.52 Also missing from the referred powers is the power to legislate with respect to surrogacy and artificial reproductive technologies (ARTs), giving rise to a complex relationship between state legislation and FLA definitions of who is a ‘parent’ (4.3). Missing too is adoption53 (although the Commonwealth Powers (Family Law—Children) Act 1986 (Vic) does not specifically exclude this). As a result, adoption remains the domain of the states except for step-parent adoption (the practice of step-parents adopting a child of their partner), which requires an adoption order under state law but is also now dealt with in the FLA (FLA section 60G). This has been the case since 1991, when the FLA was amended to make clear that a step-parent adoption does not put an end to existing parental responsibility under the Act unless the FCoA agrees to the commencement of the adoption 45 Commonwealth Powers (Family Law—Children) Act 1986 (NSW), 1986 (Vic), 1986 (SA), 1987 (Tas), 1990 (Qld). 46 Section 4 (NSW, Qld, SA and Vic Acts) and s 3(4) (Tas). 47 Section 3(1) of relevant Acts. 48 M v H (1993) 17 Fam LR 416. 49 ibid. 50 Section 3(2) of all relevant Acts. 51 See, for example, John Seymour, ‘The Role of the Family Court of Australia in Child Welfare Matters’ (1993) 21 Federal Law Review 1, 20–4. 52 While the FCoA has a ‘welfare’ jurisdiction under FLA s 67ZC, this now appears to be very limited: see 3.4.1.1. 53 Section 3(2) of the relevant Acts.

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proceedings (FLA sections 60D, 60G, and 61E). In substance, these provisions give the FCoA a limited power to veto step-parent adoptions under state law, in the sense that if the FCoA’s approval of the adoption proceeding is not obtained the parental responsibility of the relinquishing parent will continue and any parenting orders that were in place at the time of the adoption remain in force, limiting the effectiveness of the adoption. The power to legislate regarding step-parent adoptions was not referred by the state parliaments, so there is a question as to whether these provisions are constitutionally valid or not.54 This is unlikely to be tested due to the declining practice of step-parent adoption, reflecting changing attitudes to ‘family’ involving increased emphasis on the continuing involvement of both parents in their children’s lives after separation (Chapter 6). Due to the referral of powers, the previous need for a connection between children and marriage was removed, and the Commonwealth Parliament’s power to legislate in the area of family law was greatly expanded. In practical terms, all parenting and child maintenance disputes now fall within the ambit of the FLA.55 Most significantly, FLA parenting orders can be made regardless of whether the child’s parents have married and, indeed, on the application of any person who has an interest in the care, welfare or development of a child (FLA section 65C: Chapters 6 and 8). Following the referral, it was also possible to establish the current Child Support Scheme (CSS), which applies to all children whose parents do not live together, regardless of the parents’ marital status (Chapter 11).

2.4.1.2 Financial disputes on de facto partner relationship breakdown As a result of the marriage-centred nature of the Commonwealth Parliament’s legislative powers, until recently de facto partners who separated and required court involvement to settle their property and parenting matters had to make use of two legal systems: the state system (for property and partner maintenance disputes) and the federal system (for parenting disputes), along with the federal CSS for assistance with child support issues. The differing legislative regimes that applied to married and de facto relationships created a significant level of structural fragmentation in Australia’s family law system. At a practical level, this situation disadvantaged separating couples in non-marital relationships in several ways. Most obviously, those with children needed to access the federal legal system for the resolution of their parenting and child support arrangements and the state system regarding property and partner maintenance (where the latter was available), and did not have the benefit of the more specialised family law dispute resolution processes available at the federal level when resolving their property and partner maintenance arrangements. This was likely to have more serious consequences for women: the FLA and federal family law courts are more likely to accommodate the non-financial contributions and future needs of homemakers and primary carers (usually mothers) than the generalist courts deciding state law disputes. The referral of legislative power by the states to the Commonwealth gained renewed attention following the commencement of new Commonwealth laws allowing 54 For a further discussion of objections that can be made to the legislation, see Owen Jessup and Richard Chisholm, ‘Step-Parent Adoptions and the Family Law Act’ (1992) 6 Australian Journal of Family Law 179. 55 The WA position differs: see 3.5.1.

CHAPTER 2: Structural Fragmentation: The Constitutional Framework

superannuation splitting (14.5). The states were unable to amend their legislation to mirror the federal changes without Commonwealth amendment of the federal superannuation industry supervision legislation, and the Commonwealth indicated that it would not be prepared to do this, preferring uniformity in the treatment of married and de facto couples, and uniformity in the treatment of separating de facto couples across states, in the division of superannuation interests and financial disputes more generally.56 This meant that without a referral of power in relation to financial disputes between separating de facto partners there would be no superannuation splitting reform. As a result, in November 2002 the state Attorneys-General agreed to a referral of powers to the Commonwealth regarding property disputes relating to separating de facto couples. All states except WA (3.5.1), via substantially identical legislation, have now referred ‘financial matters’ in relation to de facto partners following relationship breakdown to the Commonwealth.57 The referrals cover maintenance of de facto partners, distribution of the property of de facto partners, and the distribution of any other financial resources of de facto partners, including non-vested superannuation. ‘De facto relationship’ is defined in the referring legislation as ‘a marriage-like relationship (other than a legal marriage) between two persons’, and separate referrals were made in relation to opposite sex and same-sex de facto relationships (4.2.1). This approach was taken ‘to ensure the validity of any Commonwealth legislation in the face of clear indications from the [Howard] Commonwealth that it intends to exercise power only in relation to heterosexual de facto couples’.58 South Australia was the most recent state to refer in 2009, after the FLA had been amended, with its referring Act taking effect on 1 July 2010.59 A very early step of the newly elected Rudd Federal Government was to act on those referrals, enacting the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), which extends the FLA to cover different-sex and same-sex 56 Commonwealth Powers (De Facto Relationships) Bill 2003 (NSW), second reading speech (Mr Newell, on behalf of Mr Debus), NSW Hansard, 5 September 2003. 57 Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); De Facto Relationships (Northern Territory Request) Act 2003 (NT); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas); and Commonwealth Powers (De Facto Relationships) Act 2004 (Vic), Commonwealth Powers (De Facto Relationships) Act 2009 (SA). As discussed later (3.5.1), WA has its own Family Court exercising both state and federal jurisdiction, and financial disputes between domestic partners are already dealt with in the same way as matrimonial disputes as a result of amendments to the Family Court Act 1997 (WA) inserted by Act No. 25 of 2002. WA, via the Commonwealth Powers (De Facto Relationships) Act 2006 (WA), attempted to make a partial referral covering only superannuation interests of de facto couples in order to give the Commonwealth Parliament, pursuant to s 77(iii) of the Australian Constitution, power to legislate to give the Family Court of WA the same jurisdiction and powers in relation to superannuation interests of de facto couples as it has in relation to married couples, but that offer was rejected, so WA remains a non-participating jurisdiction with ‘two schemes for dealing with the consequences of the end of a relationship: one for the married, the national uniform scheme under the Family Law Act; and one for the unmarried, under the Family Court Act 1997 (WA), which still does not include power to deal with money in superannuation funds’: Michael Nicholls, ‘De Facto Financial Claims in Australia’ (2012) 2 Family Law Review 181, 182. The key provisions (ss 3–5) of the Commonwealth Powers (De Facto Relationships) Act 2006 (WA) have not been proclaimed. 58 Commonwealth Powers (De Facto Relationships) Bill 2003 (NSW), second reading speech, above n 56. 59 Commonwealth Powers (De Facto Relationships) Act (Commencement) Proclamation 2010, published in SA Gaz G6, 4 February 2010, 461.

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de facto financial disputes, most obviously by the inclusion of a new Part ­VIIIAB— Financial matters relating to de facto partners (Chapter 13). The introduction of a separate Part VIIIAB to cover de facto partner financial disputes was needed because not all states had referred power at the time of the FLA amendments, and because referrals were of ‘financial matters arising on the breakdown of de facto relationships’ and thus of more limited in scope than the Commonwealth Parliament’s legislative power in relation to marriage, which covers proceedings arising out of the marital relationship (as underlined by the HCoA’s recent decision in Stanford:60 Chapter 13). Interestingly, these significant changes were not preceded by any detailed debate or investigation to explore the empirical and policy distinctions that justify same or different treatment of married, different-sex de facto, same-sex de facto, and other domestic relationships,61 probably because the states had been legislating in the area for many years, beginning with New South Wales (NSW) in 1984, and over time had been moving increasingly towards reflecting the FLA approach (4.2). The laws governing the resolution of property and maintenance disputes between separating spouses and de facto partners in most parts of Australia are thus now identical, although some complexity remains due to non-referral by WA, referrals by other states being made at different times (resulting the need for applicants to establish a geographical and temporal connection with a ‘participating jurisdiction’: 13.2.3), and coverage of de facto financial disputes separately (although not consistently so) in a new part of the FLA. Also, because the referrals do not extend to other domestic relationships (see 4.2.2), the shape of the substantive law continues to some extent to reflect the contingent political and ideological characterisation of the ‘family’. Fragmentation in this area has therefore been greatly reduced but not entirely removed.

2.4.2 The intrinsic limits of the marriage power? Marriage equality In recent years there has been increasing pressure on the Federal Government to legislate for same-sex marriage (evident, for example, during the 2010 election campaign62) (4.2.3.2.2). The pressure brought to bear has assumed the Commonwealth Parliament’s legislative competence in relation to same-sex marriage. While the HCoA held that this was the case in Commonwealth v ACT,63 before then the position was less clear.64 60 Stanford (2012) 247 CLR 108; [2012] HCA 52. 61 Nicholls, above n 57, pp 181–2. 62 See for example Tim Dick, ‘Gay Marriage—What Would It Take?’, Sydney Morning Herald (online) 18 August 2010, . See generally NSW Legislative Council Standing Committee on Social Issues, Same-Sex Marriage Law in New South Wales, Report No. 47, Sydney, 2013; Paula Gerber and Adiva Sifris, ‘Marriage Equality in Australia’, in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia, Thomson Reuters, Sydney, 2013, pp 199–221. 63 Commonwealth v ACT [2013] HCA 55. 64 See further Legislative Council Standing Committee on Social Issues, Parliament of NSW, Same-Sex Marriage Law in New South Wales, Final Report, 2013, chapter 6, available at .

CHAPTER 2: Structural Fragmentation: The Constitutional Framework

The key question here has been: if the Commonwealth Parliament has the ability pursuant to the marriage power to define the rights and duties between spouses (as is evident in the Marriage Act Case and Russell), then can the Parliament make changes to marital rights and duties that in effect redefine the institution of marriage itself ? Central to this question is what is meant by ‘marriage’ in the Constitution. Does this word necessarily signify the formal, monogamous, heterosexual institution so far alone recognised as constituting marriage under Australian law? Or can it be interpreted more broadly, to allow legislation in relation to the different kinds of couple relationships that now exist and that existed before Federation (for example, polygamous, same-sex and de facto marriages), and also to reflect changing social views of what ‘marriage’ is? In favour of broad and flexible interpretation, there was evidence in relation to differentsex de facto unions that, at the time of Federation, the term ‘marriage’ was understood to extend to both ceremonial and informal marriages.65 As regards polygamous marriages, the Commonwealth Parliament had already legislated to recognise such marriages entered overseas (FLA section 6; see 4.2.3.1).66 Conversely, the source generally cited for the common law definition of marriage is Hyde v Hyde & Woodmansee,67 in which Sir James Wilde stated that ‘marriage, as understood in Christendom, may … be defined as the voluntary union for life of one man and one woman to the exclusion of all others’.68 This definition is reflected in the MA and the FLA (see 4.2.3).69 It was arguable that the meaning attached to ‘marriage’ in the Constitution should be consistent with this common law meaning, with the result that the Commonwealth Parliament would not have power to legislate for same-sex marriage without a referral of power by the states. Before Commonwealth v ACT, the HCoA had not given detailed consideration to the meaning of the term ‘marriage’ and when it had, inconsistent views had emerged.70 In 2003, the Full Court of the FCoA in Re Kevin71 (4.2.3.2.2) preferred the wider view of the marriage power, to the effect that the constitutional definition of marriage was not ‘to be regarded as frozen in time to the definition as it was understood in 1901’,72 and in obiter expressed the view that it was ‘within the power of parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition’.73 The federal AttorneyGeneral did not appeal this decision so the opportunity did not arise for the HCoA to consider the issue. 65 New South Wales Law Reform Commission, Report on De Facto Relationships, Report No. 36 (1983), [2.5] referring to a paper presented at one of the Commission’s seminars by the late Honourable Peter Nygh. 66 Marriage Act Case (1962) 107 CLR 529; [1962] HCA 37, 577 regarding the constitutionality of this section. 67 Hyde v Hyde (1866) LR 1 P&D 130. 68 ibid., 133. 69 MA ss 5 and 46(1); FLA s 43(a). 70 For example, Marriage Act Case (1962) 107 CLR 529; [1962] HCA 37, 549 (McTiernan J), 576–7 (Windeyer J); Cormick (1984) 156 CLR 170; [1984] HCA 79, 182 (Brennan J); Re F (1986) 161 CLR 376, 399 (Brennan J); Fisher (1986) 161 CLR 438; [1986] HCA 61, 455–6 (Brennan J); Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27, 553 (McHugh J). 71 Re Kevin [2003] FamCA 94. 72 ibid., [97] (Nicholson CJ, Ellis and Brown JJ). 73 ibid., [100].

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Most recently, the HCoA unanimously held in Commonwealth v ACT that ‘marriage’ in the Constitution was not to be construed as referring only to the particular legal status of ‘marriage’ that could be formed at the time of Federation (see also 4.2.3.2.2). Rather, the word ‘marriage’ in section 51(xxi) is ‘used in the sense of a “topic of juristic classification”’,74 and the status of marriage, and the rights and obligations attaching to that status, were not and never had been ‘immutable’,75 opening up the prospect of marriage equality extending beyond same-sex marriage equality offered by the Marriage Equality (Same Sex) Act 2013 (ACT) (the ACT Act) under challenge by the Commonwealth in Commonwealth v ACT. The Court further held that the MA ‘is a comprehensive and exhaustive statement of the law of marriage’76 and that as the object of the ACT Act was to provide for marriage equality for same-sex couples it could not operate concurrently with the federal Act.77 It is therefore now clear that the Commonwealth Parliament has power under the Australian Constitution to legislate with respect to same-sex marriage: ‘Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law … is a matter for the federal Parliament’.78 Unfortunately, legislating for marriage equality seems unlikely to be a priority for the Federal Government in the near future despite growing community support for change and, internationally, a broad legislative shift in Western countries, (including recent developments in the United States, United Kingdom, France and New Zealand), towards marriage equality (4.2.3.2.2).

Commonwealth v ACT [2013] HCA 55, [14] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). ibid., [16]. ibid., [57]. ibid., [48]–[61]. As the ACT is a self-governing territory, the Act was held to be inconsistent under the Australian Capital Territory (Self-Government) Act 1988 (Cth); if the case had involved a state, the relevant provision would have been s 109 of the Constitution. 78 Commonwealth v ACT [2013] HCA 55, [1]. 74 75 76 77

CHAPTER

3

Mechanics of Fragmentation: The Jurisdictional Framework 3.1 Introduction 26 3.2 The Family Court of Australia  26 3.2.1 Establishment of the Family Court  27 3.2.2 Structure of the Family Court  28 3.3 The Federal Circuit Court of Australia  29 3.3.1 Establishment of the Federal Circuit Court  30 3.3.2 Structure of the Federal Circuit Court  30 3.4 Jurisdiction of federal family law courts  31 3.4.1 The welfare jurisdiction  35 3.4.1.1 Family Court and High Court interpretation of the welfare jurisdiction 36 3.4.1.2 Relationship between state and federal family law courts’ welfare jurisdictions 42 3.4.2 Proceedings with a foreign element: Extent of jurisdiction  43 3.4.3 Additional jurisdiction  47 3.4.3.1 Associated jurisdiction  48 3.4.3.2 Accrued jurisdiction  49 3.5 Other courts exercising jurisdiction under the Family Law Act 52 3.5.1 The Northern Territory and Western Australia  52 3.5.2 Courts of summary jurisdiction  53 3.6 The future of the federal family law courts  54 3.6.1 Criticism, scrutiny and review of federal family law courts  54 3.6.2 Proposals for reform  55 3.6.3 Ongoing challenges for the federal family law courts  57 3.6.3.1 Violence 57 3.6.3.2 Self-represented litigants  58 3.7 Case study: Jurisdictional overlap in child protection  60 3.7.1 Case summary  60 3.7.2 The constitutional framework  62 3.7.3 The resulting legislation  63 3.7.3.1 State child protection legislation  63 3.7.3.2 The Family Law Act and child protection  63 25

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3.7.4

Procedures and processes for dealing with overlap  64 3.7.4.1 Notifications of abuse under the Family Law Act 64 3.7.4.2 Child protection protocols  68 3.7.5 Empirical research on jurisdictional overlap  68 3.7.6 Proposals for reform  70 3.8 Conclusion 71

3.1 Introduction In the previous chapter we examined the ambit (especially the limits) of the Commonwealth Parliament’s constitutional power to legislate regarding family law issues. Our focus in this chapter is the flow-on effects of those limits to courts exercising federal jurisdiction under the Family Law Act 1975 (Cth) (FLA)—that is, the authority of various courts exercising power under that Act. The constitutional and jurisdictional frameworks are distinct, yet also interrelated:1 ultimately, the power of federal and state courts to determine disputes must be exercised within the limits of the constitutional division of legislative power. It is thus often the case in Australian family law that a particular issue may be argued as both a challenge to the Commonwealth Parliament’s constitutional power and to the family law courts’ jurisdiction to hear a particular matter. One context where this has occurred has been that of third parties in FLA property proceedings (Chapter  14).2 Attempts have been made to circumvent constitutional limits (by the states’ referral of legislative powers to the Commonwealth: Chapter 2), and jurisdictional limits (especially via cross-vesting legislation and, more recently, use of the accrued jurisdiction: 3.4.3.2), in both cases with the practical aim of extending jurisdiction under the FLA. After first surveying the history and structure of the federal family law courts—the Family Court of Australia (FCoA) (3.2) and the Federal Circuit Court of Australia (FCCoA) (3.3)—we look at their jurisdiction (3.4) and at the jurisdiction of other courts exercising jurisdiction under the FLA, including the Family Court of Western Australia (FCoWA) and courts of summary jurisdiction (3.5). Our consideration of the jurisdictional framework concludes with an examination of the pattern of criticism, review and reform that has accompanied the existence of Australian family law courts (3.6). We  then look jurisdictional overlap in the area of child protection, as an example of ongoing problems arising from constitutional and jurisdictional fragmentation (3.7).

3.2 The Family Court of Australia The FCoA, as the specialist court established to hear FLA proceedings, has played a highly significant role in the interpretation and development of Australian family law. In this section, we provide some background information about the establishment and operation of the FCoA. The jurisdictions of the FCoA and the FCCoA now overlap to a large extent and are discussed at 3.4. 1 Patrick Parkinson and Juliet Behrens, Australian Family Law in Context: Commentary and Materials, 3rd edn, Lawbook Company, Sydney, 2004, p 227. 2 For example, Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 was a jurisdictional challenge, while In the Marriage of Gould [1993] FamCA 126 was a constitutional challenge.

CHAPTER 3: Mechanics of Fragmentation: The Jurisdictional Framework

3.2.1 Establishment of the Family Court The FCoA is a court created under Chapter III of the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution), which gives the Commonwealth power to create and invest courts with federal jurisdiction.3 Before the Court began to operate on 5  January 1976 (when the FLA also came into effect), state courts administered family laws, including Commonwealth laws. Among other things (in particular, the introduction of no-fault divorce: Chapter 4), the FLA ‘established the FCoA as a separate federal specialist court with an integrated court-attached counselling service, an emphasis on litigation as a step of last resort, and a direction that its judges be appointed on the basis of their suitability (by reason of training, experience and personality) to deal with family law matters’.4 The vision was to create a court more attuned to the needs of family members, and one characterised by less formality and more privacy than is usual in the court system.5 However, a gradual retreat from this ideal began soon after the FCoA’s establishment. This was partly due to acts of violence directed at the FCoA and its judges, including the murders of one judge and the wife of another judge.6 It was also due to other unforeseen problems, including the realisation that small courtrooms and waiting rooms were ‘conducive to tension and violence’ and complaints that the Court was immune from external scrutiny because its proceedings were closed to the public.7 This prompted a gradual shift towards greater formality and transparency in FLA proceedings. So, for example, while there was initially a prohibition on robing, this was removed in 1988, and proceedings have been open to the public since 1983—although restrictions operate regarding the publication of court proceedings (FLA section 121),8 and courts can be closed (FLA section 97(2)).9 More recently, ‘[s]ince January 2007 the Court has adopted a more expansive policy for the publication of its judgments to make 3 Constitution ss 71, 77. On the history of the FCoA, see further Ray Watson, ‘History of the Family Law Act and the Family Court of Australia’ (2011) 2 Family Law Review 6; John Fogarty, ‘Thirty Years of Change’ (2006) 18  Australian Family Lawyer 4; Austin Asche, ‘The Family Court: The First 10 Years’ (1986) 2 Australian Family Lawyer 1; Leonie Star, Counsel of Perfection: The Family Court of Australia, Oxford University Press, Melbourne, 1996. 4 Margaret Harrison, ‘Australia’s Family Law Act: The First Twenty-Five Years’ (2002) 16 International Journal of Law, Policy and the Family 1. 5 See further Helen Rhoades, ‘The “Helping Court”: Exploring the Therapeutic Justice Origins of the Family Court of Australia’ (2011) 2 Family Law Review 17. 6 See further Helen Rhoades, Charlotte Frew and Shurlee Swain, ‘Recognition of Family Violence in the Australian Family Law System: A Long Journey’ (2010) 24 Australian Journal of Family Law 296. 7 Harrison, ‘Australia’s Family Law Act’, above n 4, p 6. 8 Section 121 makes it an offence (punishable by up to one year’s imprisonment) for a person to disseminate to the public at large, or to a section of the public, any account of family law proceedings that identifies any party, witness, or person associated with the proceedings (e.g. a child of the parties). Some exceptions are made under s 121(9), and also under the Rules of Court, for example for publication of law reports and publication of court lists of proceedings. But s 121 is very onerous and in practical terms it has operated as a disincentive to media reporting of FLA proceedings, although prosecutions are rare. For a recent example see Brisbane Times, ‘Courier-Mail Fined for Identifying Family in Custody Battle’, 24 March 2014, . Equivalent provisions exist at a state level in relation to Children’s Court child protection matters. 9 FLA s 97(2) provides that the court may order that specified persons, or persons included in a specified class of persons, not be present, or that only the parties and their legal representatives and others specified by the court be present.

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them more accessible to the community’ and ‘decided to commit the resources required to ensure that every final judgment decided is anonymised and, consistent with section 121, published’.10 More recently, the introduction of Less Adversarial Trials (LAT) (including family consultants) in FCoA parenting matters filed after 1 July 2006 (FLA Part 12A: Chapter 7), and also the use of a docket system in the FCCoA with a similar approach evident more recently the FCoA (so that cases generally remain with the same judge, although to a greater extent in the FCCoA) are approaches allowing judicial officers greater control over proceedings and that have some parallels with early goals and approaches of the FCoA as a ‘helping court’ before its return to a more ‘mainstream model’ in the 1980s.11

3.2.2 Structure of the Family Court The FCoA comprises the General Division and the Appeal Division (FLA section 21A). The Appeal Division includes the Chief Justice of the FCoA, the Deputy Chief Justice, and such other judges who are assigned to the Division (FLA section 22(2AA)). The Full Court of the FCoA hears appeals from single-judge decisions of the FCoA (FLA section 94(1)). The Full Court must normally comprise three or more judges of the FCoA, with the majority being members of the Appeal Division (FLA section 4(1), definition of ‘Full Court’). Decisions of the Full Court can be appealed to the HCoA, by special leave of the HCoA or on a certificate of the Full Court (FLA section 95). Family law matters have, however, been infrequently heard by the HCoA: The special leave procedure is the usual means by which appeals are brought to the High Court, but the proportion of successful special leave applications brought from the Family Court is the lowest of any court, perhaps because many of the cases relate to the exercise of broad discretions. The other avenue to the High Court— the certification procedure—remains controversial because it derogates from the ability of the High Court to determine for itself which cases are most deserving of its consideration … but certificates have been granted in only a handful of cases.12

In addition to judges, registrars may also exercise judicial power in the FCoA. The FLA provides that the judges of the FCoA may make rules of court delegating to judicial registrars (FLA section 26B) and registrars (FLA section 37A ) all or any of the powers of the Court, with certain limitations which are greater in the case of registrars than judicial registrars, and these powers underpin Chapter 18 of the Family Law Rules 2004. Due to the wide range of powers they can exercise, registrars can perform an important role in the FCoA, alleviating the pressure on court lists and helping to ensure that judges hear more complex matters. However, following budget cuts after the establishment of the FCCoA, the FCoA had to reduce its number of registrars, with the consequence that judges were increasingly required to hear interim applications. The positions of judicial registrars were 10 Family Court of Australia, Annual Report 2006-07, Family Court of Australia, Canberra, 2007, p 67. The FCCoA has also adopted this approach. In relation to section 121, see above n 8. 11 John Fogarty, ‘Family Court of Australia—Into a Brave New World’ (2009) 20 Australian Family Lawyer 1, 3. 12 John Crawford and Brian Opeskin, Australian Courts of Law, 4th edn, Oxford University Press, Melbourne, 2004, pp 219–20.

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not re-filled, resulting in greater delays in the hearing of defended matters.13 In 2012–13, there were registrars at 12 of the Court’s 19 registries,14 including one senior registrar in Melbourne. The delegation of judicial power to registrars and judicial registrars challenges the traditional view that federal judicial power may be exercised only by judges. In  Harris  v  Caladine,15 however, the HCoA held that the extension of powers to registrars (and thus also to judicial registrars) was constitutionally valid. The majority16 took the view that delegation was acceptable provided that federal judges appointed in accordance with section 72 of the Constitution still took the main role in the exercise of the court’s  jurisdiction.  This was satisfied by the requirement that the exercise of a registrar’s power is subject to review by federal judges. The FCoA is responsible for review of decisions of registrars, with the Court rehearing the whole matter afresh, including consideration of the evidence before the registrar and any new evidence (review de novo) (FLA section 37A(10)). The FCoA also exercises exclusive appellate jurisdiction throughout Australia (including Western Australia (WA) and the Northern Territory (NT)) in relation to first-instance orders made by all other courts exercising jurisdiction under the FLA.

3.3 The Federal Circuit Court of Australia The FCCoA, Australia’s second federal family law court, was originally called the ‘Federal Magistrates Service’, began operations as the ‘Federal Magistrates Court’ in mid-2000, and was renamed the ‘Federal Circuit Court’ from 12 April 2013. At that time, its judicial officers became known as judges of that Court, rather than federal magistrates (3.6.2).17 The FCCoA is not a specialist family law court but since its establishment the vast bulk of its caseload has been in family law (93 per cent of applications in 2012–13)18 and the majority of family law applications are now filed in the FCCoA (the Court’s Annual Report 2012–13 stated that, over this period, the Court dealt with 87 per cent of all federal family law matters filed, excluding WA family law matters).19 The AIFS Evaluation of the 2006 amendments (the ‘AIFS Evaluation’) found that, following the amendments (outlined in Chapter 6), ‘a pre-existing trend for more matters to be filed in the [FCCoA] and fewer in the FCoA gained momentum, with filings in the [FCCoA] in all relevant categories (children only, children and property, property only)’ increasing as FCoA filings

13 Alastair Nicholson, ‘Sixteen Years of Family Law: A Retrospective’ (2004) 18 Australian Journal of Family Law 131, 140–1. 14 Family Court of Australia, Annual Report 2012–13, Family Court of Australia, Canberra, 2013, p 20. 15 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9. 16 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, 95 (Mason CJ and Deane J), 122–3 (Dawson J), 153–4 (Gaudron J), and 165 (McHugh J). Brennan J and Toohey J dissented. 17 Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth), amending the Federal Magistrates Act 1999 (Cth) (now the Federal Circuit Court of Australia Act 1999 (Cth)). 18 Federal Circuit Court of Australia, Annual Report 2012–13, Federal Circuit Court of Australia, Canberra, 2013,  p  36. 19 ibid., p 39.

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decreased’.20 The authors observed that while a range of reasons explained this continuing pattern, ‘it mainly appears to be linked to changes in the allocation of resources (i.e., judicial officers) between the two courts, with the number of [FCCoA judges] increasing and the number of FCoA judges decreasing’.21 Other factors may include a perception that costs are lower in the FCCoA.

3.3.1 Establishment of the Federal Circuit Court Like the FCoA, the FCCoA is a federal court created by the Parliament under Chapter III of the Australian Constitution. It was established by the Federal Circuit Court of Australia Act 1999 (Cth). Key goals were that it would hear less complex matters and provide a less costly and more informal, accessible and faster avenue for litigants than the FCoA. However, there was much opposition from the legal profession to the FCCoA’s establishment.22 Despite the stated rationale for its establishment, the new court was as much a product of antipathy between the then federal Attorney-General, Daryl Williams, and the previous Chief Justice of the FCoA, the Honourable Alastair Nicholson, with the new court providing a justification for resources to be diverted away from the FCoA. Yet since its establishment the FCCoA has also struggled under the weight of insufficient resources and has relied on the FCoA for infrastructure support, including registry services and client services. Unfortunately, ‘tension over resources has distracted the Family Court and the [FCCoA] from their core responsibilities’,23 although this may be improving (3.6.2).

3.3.2 Structure of the Federal Circuit Court The FCCoA comprises the Chief Judge and Judges (Federal Circuit Court of Australia Act 1999 (Cth) section 8(4)). Appeals from family law decisions of the FCCoA are to the FCoA (FLA section 94AAA). While appeals will normally be to the Full Court of the FCoA, the Chief Federal Circuit Court Judge has the discretion to allow an appeal to be decided by a single judge of the FCoA who may or may not be a member of the Appeal Division (FLA section 94AAA(3)). This reflects legislative intention to provide the FCCoA with maximum flexibility to deal with cases efficiently, while also taking into account their complexity. Another important aspect of this legislative intention of maximum flexibility is the simplified court practice and procedure designed to operate in the FCCoA. The emphasis in the Federal Circuit Court of Australia Act is on minimising the duration, formality, and cost of court process in a number of ways (Federal Magistrates Act 1999 (Cth) section 42). For example, with the consent of the parties, the FCCoA is able to make a decision without 20 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009, Summary Report p 17. 21 ibid. See also footnote 29, p 316 of the evaluation. 22 Donna Cooper, ‘“Quicker, Cheaper, Less Formal”: Does the Federal Magistrates Service Mantra Conflict with an Emphasis on Dispute Resolution?’ (2002) 13 Australasian Dispute Resolution Journal 115. 23 Des Semple in conjunction with the Attorney-General’s Department, Future Governance Options for Federal Family Law Courts in Australia: Striking the Right Balance, Australian Government, Attorney-General’s Department, Canberra, 2008.

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an oral hearing (Federal Circuit Court of Australia Act section 54).24 There are, however, no firm indications that in practice, the FCCoA has met the Howard Coalition Government’s original goals when establishing the court of providing a faster, simpler, or cheaper option than is offered by the FCoA in equivalent proceedings.25 In 2009, the AIFS Evaluation of the 2006 amendments found that ‘the average time taken to finalise matters that proceeded to judicial determination was in fact shorter in the FCoA than in the [FCCoA] (4.8 months vs 5 months)’, although also observing that the small number of cases (15) explicitly identified as being dealt with by Less Adversarial Trials (LAT) (Chapter 7) in the FCoA had a longer median resolution period of 9.4 months.26 Somewhat ironically, the AIFS Evaluation also found that the FCCoA ‘provided practitioners who preferred to operate in a traditional adversarial model with a forum in which to do this’27 following the introduction of the Children’s Cases Program (now LAT) in the FCoA along with FLA Part VII Division 12A.

3.4 Jurisdiction of the federal family law courts The FCoA and the FCCoA have registries in 19 locations around Australia including each capital city28 and the FCCoA operates circuits in 33 regional areas.29 As just noted, since its establishment, the FCCoA has shared registry (and other) facilities of the FCoA and the courts’ operations have been increasingly merged in recent years. The jurisdictions of the two courts have also become increasingly shared over time. The FCoA is a superior court of record (FLA section 21(2)) and so its judges technically have the same standing as judges of the Federal Court and the state supreme courts. The term ‘superior court of record’ originated under English common law and was used to refer to courts of superior standing (for example, the House of Lords (and now the Supreme Court) and the English High Court). Over time, a further distinction has evolved between superior courts of ‘general’ and ‘defined’ (or limited) jurisdiction.30 The FCoA is a court of limited jurisdiction: it only has the jurisdiction granted to it by the Commonwealth Parliament, which is in turn limited by the Parliament’s legislative powers under section 51 of the Constitution.31

24 See also, for example, Federal Circuit Court of Australia Act 1999 (Cth) ss 45, 50, 51, 55, 56, and 62. 25 For an examination of concerns at the time of the FCCoA’s establishment, see Tom Altobelli, Family Law: Theory Meets Practice, Butterworths, Sydney, 1999, pp 82–3. See also Donna Cooper, ‘Quicker, Cheaper, Less Formal’, above n 22, suggesting on the basis of interviews with Queensland family law practitioners that there was ‘not yet clear evidence that the [FCCoA] had fulfilled one area of its brief and that was to focus more on dispute resolution processes than litigation’ (p 124). 26 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009, p 318. 27 ibid., pp 326–7; Kaspiew et al. above n 20, p 18. 28 Family Court of Australia, Annual Report 2012–13, Family Court of Australia, Canberra, 2013, pp 19–20. 29 ibid., p 61. 30 See further John Crawford and Brian Opeskin, Australian Courts of Law, 4th edn, Oxford University Press, Melbourne, 2004, p 134. 31 As emphasised by the HCoA in, for example, R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, 194–5 (Gibbs  CJ), 207–8 (Wilson and Dawson JJ), and 215–16 (Brennan J).

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The FCoA’s main jurisdiction is conferred by the FLA. Its jurisdiction extends to all matters under the FLA: most obviously, parenting disputes, reallocation of interests in property of spouses/partners and spousal/partner maintenance. For financial disputes, this is achieved in relation to spouses and de facto partners, respectively, by conferring jurisdiction on the FCoA with respect to ‘matrimonial causes’ and ‘de facto financial causes’, as defined in section 4(1) of the Act (FLA section 31(1)(a); 2.3.1). Following the referral of powers over children by all the state parliaments except WA (2.4.1), child-related matrimonial causes were removed from the definition, and jurisdiction to deal with such matters is now dealt with in Part VII of the FLA. Part VII gives the FCoA jurisdiction to make parenting orders whether the parents were married or not (see Chapter 8). Also included in the FCoA’s jurisdiction under Part VII are the additional matters in relation to children that were referred: FLA section 69ZJ. In addition to the matters set out in the FLA, the FCoA has jurisdiction in matters arising under certain other federal legislation. This includes jurisdiction under the Marriage Act 1961 (Cth) (MA), other than jurisdiction under Part VII of that Act (which covers offences that are dealt with by state courts, such as bigamy and marrying a person not of marriageable age). For example, under the MA the FCoA can authorise the marriage of a person aged between 16 and 18 years and make such authorisation where it has been refused by a state or territory magistrate (Chapter  4).32 The FCoA also has jurisdiction to hear certain child support matters (Chapter 11). The FCoA has had additional jurisdiction conferred on it under the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 (Cth) to hear matters in the areas of judicial review of administrative decisions, bankruptcy, taxation, and consumer protection, when those matters are transferred from the Federal Court. This appears to have been part of an attempt at that time to counter the perception that family law is a ‘soft’ area of the law, although ‘[i]n reality the volume of Family Court work precludes judges from dealing with work from any additional jurisdiction and the Federal Court has referred no matters to it for many years’.33 A further reality, however, is that ‘family law’ issues often cannot be readily isolated from wider legal issues. The question will always be the extent to which the Federal Government and/or the HCoA will see it as appropriate for the FCoA to have a role in determining these wider legal issues when they collide with family practices. Recent examples arise in relation to property disputes involving third parties (14.2). The FCCoA shares its jurisdiction with the FCoA and the Federal Court. It is a ‘court of record’ (meaning, at common law, a trial court in which proceedings are recorded) and of ‘law and equity’ (Federal Circuit Court of Australia Act 1999 (Cth) section 8(3)). Its jurisdiction is conferred by the Federal Magistrates (Consequential Amendments) Act 1999 (Cth). In addition to jurisdiction conferred under the FLA, the FCCoA is invested with the same jurisdiction as the FCoA under the Child Support Scheme (CSS). The FCCoA 32 MA ss 16 and 17, with s 5(1) (definition (a) of ‘Judge’). 33 Harrison, ‘Australia’s Family Law Act’, above n 4, 8.

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also has jurisdiction in a number of other areas outside family law, for example in the areas of bankruptcy, tax, trade practices, and administrative review.34 As regards jurisdiction under the FLA, the main matters the FCCoA deals with are: • applications for divorce;35 • property disputes36 between married couples and between de facto couples on relationship breakdown, including disputes regarding financial agreements;37 • Part VII matters in relation to children, which include parenting orders (FLA section 69H); • enforcement of FCoA orders and its own orders;38 • matters involving the location and recovery of children (FLA section 69H); and • disputes involving the determination of parentage (FLA section 69H). The FCCoA’s jurisdiction, then, is very wide and overlaps considerably with that of the FCoA. The main exclusions are leave to commence step-parent adoption proceedings, applications for nullity of marriage, and declarations of the validity of marriage. Provision is made in the FLA for the transfer of proceedings from the FCoA to the FCCoA (FLA section 33B)39 and vice versa (Federal Circuit Court of Australia Act section 39). In both instances, the court has a discretionary power to transfer proceedings at the request of a party, or on the court’s own initiative, to the other court, having regard to whether proceedings in an associated matter are pending in the other court and whether the resources of the FCCoA are sufficient to hear and determine the matter. The criterion for determining which federal court should hear a family law dispute is intended to be the complexity of the matter: if a matter is complex, the resources of the FCCoA are less likely to be sufficient to hear and determine the matter. The problem is that the test for determining whether a matter is ‘complex’ or not is unclear. From early on, there was a concern that two separate classes of justice would result40—a concern that appeared to be supported in 2009 by AIFS Evaluation findings based on data from legal system professionals. While ‘[t]he [FCCoA] was valued for its quicker, cheaper service, and it was acknowledged that there were excellent federal [judges]’, ‘there were also concerns about the time pressures under which federal [judges] operate, their heavy caseload and the

34 See further Peter Nygh, ‘The Federal Magistrates Court’ (2000) 14 Australian Journal of Family Law 65. 35 FLA s 39(1A) with s 4(1) ‘matrimonial cause’ para (a)(i). In practice, applications for divorce are now filed in the FCCoA. 36 Schedule 7 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) repealed the provision that restricted the FCCoA’s jurisdiction in property disputes to those where the value of the property did not exceed $700,000 unless the parties consented to that Court’s jurisdiction. 37 FLA s 39(1A) and 39B, with s 4(1) ‘matrimonial cause’ and ‘de facto financial cause’. 38 Federal Circuit Court of Australia Act (1999) (Cth) s 85; Federal Circuit Court Rules 2001, r 25B.01. 39 See also FLA s 33C—the FCoA may by regulations made under this section be required to transfer a proceeding pending in the FCoA to the FCCoA. 40 This view was expressed in submissions to the Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on the Federal Magistrates Service Bill 1999 and the Federal Magistrates (Consequential Amendments) Bill 1999.

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fact that some federal [judges] did not have a family law practice background’.41 The FCoA’s greater depth of expertise and specialised processes (especially LAT and the involvement of family consultants) were seen as advantages of that court over the FCCoA. It should be emphasised however that these findings were reported in 2009. A protocol has been agreed between the FCoA and the FCCoA which sets out that the FCoA should ordinarily hear matters involving complex issues, namely complex questions of jurisdiction or law, serious allegations of child sexual or child physical abuse or serious controlling violence, international child abduction and relocation, special medical procedures, certain parenting order contravention cases, disputes as to whether a case should be heard in Australia and matters likely to take four or more days to hear if they proceed to final hearing.42 However, the AIFS Evaluation found that while the FCoA’s caseload is predominantly complex cases, complex matters—including cases involving child abuse and family violence—also ‘make up a significant proportion of the [FCCoA’s] caseload’.43 The authors also found, on the basis of data from legal system professionals, that ‘federal [judges] were seen as being reluctant to transfer matters to the FCoA, even those involving family violence and child abuse’44 and that as a result of the case management systems operating in the different courts, cases in the FCoA (and the FCoWA) were routinely screened for complex issues including family violence and child abuse but at that time matters in the FCCoA were not.45 As our discussion throughout the book conveys, the jurisdiction of the federal family law courts is characterised by a significant level of judicial discretion. For example, the paramount consideration when making parenting orders is ‘the best interests of the child’ (FLA section 60CA), and when making property settlement orders the court ‘may make such order as it considers appropriate’ (FLA section 79(1)/90SM(1)) but must be ‘satisfied that, in all the circumstances, it is just and equitable to make the order’ (FLA section 79(2)/90SM(3)), and in relation to spousal and de facto partners maintenance orders the court may make ‘such orders as it considers proper’ (FLA section 74(1)/90SE(1)). In  each case, the legislation provides guidance regarding the range of factors to be considered (and, in relation to parenting disputes, some direction on the outcomes to be considered), but decisions in the end involve the exercise of judicial discretion. This, combined with the fact that no two separating families are the same or are in exactly the same circumstances, means that the doctrine of precedent (being the idea ‘that judges, when they are deciding cases, must pay proper respect to past judicial decisions’46) does not operate strongly in the jurisdiction. This needs to be kept in mind when considering the Full Court’s position that

41 Kaspiew et al., above n 20, Kaspiew et al., above n 26, p 18, pp 315–18. 42 Family Law Courts, Protocol for the Division of Work between the Family Court of Australia and the Federal Magistrates Court, . 43 Kaspiew et al., above n 26, p 301. 44 ibid., p 318. 45 ibid. 46 Matthew Harding, ‘The High Court and the Doctrine of Precedent’, Melbourne Law School, Opinions on High, High Court Blog, .

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while it may depart from its own earlier decisions it should do so cautiously, and that its decisions are binding on judges making first instance decisions: In Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 it was put beyond doubt that intermediate courts of appeal may depart from their own earlier decisions. The extent to which an intermediate court of appeal regards itself as free to depart from previous decisions is a matter of practice for the court to determine for itself. Where an intermediate court of appeal holds itself free to depart from earlier decisions, it should do so, as was pointed out in Nguyen at [269]: cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law … It can be seen that this approach promotes certainty in the application of the law and discipline in its development. It facilitates the doctrine of precedent and brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy (Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553).47

The discretionary nature of FLA decision making also has implications for the appeal process: as discussed at 8.5.1, as long as a trial judge (or the Full Court, in the case of an appeal to the HCoA) has made no error of fact or law and the result is not so unclearly unjust that it can be inferred that discretion has not been properly exercised, that decision will stand. Where a judge refers in her or his judgment to all the relevant factors required to be considered in the exercise of discretion to determine that particular dispute, the fact that the appeal court would have taken a different view is not enough for an appeal to succeed.48

3.4.1 The welfare jurisdiction Following 1983 amendments to the FLA, the FoCA and FCCoA (and also courts of summary jurisdiction: 3.5.2)49 have a welfare jurisdiction (FLA section 67ZC).50 This is similar to the parens patriae jurisdiction of state supreme courts,51 under which the state has the care of those who are not able to take care of themselves … founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.52

47 Prantage & Prantage [2013] FamCAFC 105, [91]–[92] (Thackray, Ryan and Murphy JJ), the Full Court). 48 House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172). 49 FLA s 69H(1) provides that the FCoA has jurisdiction under Part VII (which contains s 67ZC). The FCCoA has jurisdiction under s 69H(4)) and state courts of summary jurisdiction under s 69J. 50 There is also a general power in FLA s  68B to grant an injunction for the welfare of a child. The limitations applicable to s 67ZC jurisdiction, particularly following MIMIA v B [2004] HCA 20; (2004) 219 CLR 365, are also applicable to s 68B. 51 Secretary, Department of Health and Community Services v JMB and SMB (1992) 175 CLR 218; [1992] HCA 15, 256 (Marion’s Case). 52 Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236, Russ 20; 38 ER 243.

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The section 67ZC jurisdiction, however, was conferred by the Commonwealth Parliament, and so its ambit is necessarily circumscribed by the constitutional heads of legislative power. Thus, while the wording of section 67ZC(1) suggests a very broad jurisdiction to make orders relating to the welfare of children, its actual scope is narrower than this, due to the requirement that it be exercised within constitutional limits. So, for example, the jurisdiction is almost certainly restricted to children of the marriage (natural or adopted), since it is derived from the marriage and matrimonial causes powers and the states have not referred their power to legislate in relation to children’s welfare (Chapter  2).53

3.4.1.1 Family Court and High Court interpretation of the welfare jurisdiction Given the court’s broad powers to make parenting orders under Part VII of the FLA, instances in which there has been a need to have recourse to the section 67ZC jurisdiction have been rare, and its scope has remained unclear. In this section, we consider contexts where it has been utilised and the limits that have emerged. The cases we refer to were heard by the FCoA and the HCoA; this is not surprising given that cases invoking the welfare jurisdiction are invariably complex matters. The courts’ protocol for the division of family law work confirms that matters involving ‘special medical procedures’54—the main context in which the welfare jurisdiction has been utilised—should be transferred to the FCoA. The welfare jurisdiction is, consistent with the Court’s jurisdiction to make parenting orders, limited to children under 18.55 In the 1980s and 1990s, its main application occurred in cases involving sterilisation of girls with intellectual disabilities. In the leading case, Marion’s Case,56 the HCoA in 1992 approved the House of Lords’ ruling in Gillick v Norfolk Area Health Authority,57 to the effect that parental authority to make decisions 53 Unless it is supported by the external affairs power and the Convention on the Rights of the Child (CRC), opened for signature 20 November 1989, [1991] ATS 4 (entered into force 2 September 1990 (Australia 16 January 1991)), : see 2.8.1. In  Re Lucy (Gender Dysphoria) [2013] FamCA 518, however, at [74] Murphy J held that the Family Court had s 67ZC jurisdiction in relation to a 13-year-old child of unmarried parents. The mother was deceased and the father unknown, so the child was in long-term foster care pursuant to a long-term guardianship order in favour of a state child welfare authority. The child was physiologically a boy but identified as a girl and had been diagnosed with ‘gender dysphoria’ (see later, 3.4.1.1), The state child welfare authority sought an order for ‘Stage 1’ treatment to suppress female puberty. Murphy J reasoned that the FCoA had jurisdiction because the state reference of powers over children had included ‘guardianship’, guardianship fell within ‘parental responsibility’ and so there was a Part VII ‘matter’ to which the s 67ZC jurisdiction was attached. 54 A term not found in the legislation but used in the case law to describe procedures which ‘fall beyond [the bounds of a parent’s responsibility to be able to consent to medical treatment for and on behalf of their child] and require determination by the court, as part of the court’s parens patriae or welfare jurisdiction’: Re: Jamie (Special Medical Procedure) (Re: Jamie) [2011] FamCA 248 (Dessau J), [33]. In the Full Court, Finn J considered that ‘it would be preferable to refer to a “medical procedure which requires court authorisation”’: Re: Jamie [2013] FamCAFC 110, [153]. 55 Re Bernadette [2011] FamCAFC 50. Similarly, the jurisdiction does not extend to making orders in relation to a foetus: Talbot v Norman [2012] FamCA 96. 56 Secretary, Department of Health and Community Services v JMB and SMB (1992) 175 CLR 218; [1992] HCA 15 (Marion’s Case). 57 Gillick v Norfolk Area Health Authority (Gillick) [1985] UKHL 7; [1986] AC 112, 183–4 per Scarman LJ. ‘A  minor is, according to this principle, capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.’

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for children diminishes as children grow in age and maturity.58 However, Marion’s Case involved a 14-year-old girl with a serious intellectual disability who was unable, and would never be able, to consent to the sterilisation procedure proposed for her (a hysterectomy and an ovariectomy, to prevent pregnancy and menstruation). In these circumstances, the HCoA held that Marion’s parents did not have the power to authorise her non-therapeutic sterilisation (where sterilisation is not ‘a by-product of surgery appropriately carried out to treat some malfunction or disease’),59 but that section 64(1)(C), the earlier version of section 67ZC,60 enabled the FCoA to authorise the procedure. The court, however, will only consent if the procedure is in the best interests of the child (as determined under sections 60CB to 60CG: section 67ZC)61 and a step of last resort. In 1994, Marion’s Case was followed by the HCoA in P v P,62 another sterilisation case. In Marion’s Case the HCoA made clear that the FLA welfare jurisdiction must be exercised within the limits of the constitutional powers under which it is enacted, particularly the marriage and matrimonial causes powers, but also considered that ‘the scope of the jurisdiction will nevertheless be very wide’.63 The welfare jurisdiction has subsequently been used to provide judicial authorisation for other special medical procedures. The key questions are whether the proposed procedure requires the court’s authorisation or is within the responsibility of the child’s parents or guardians,64 and the role of the court in determining whether a child is ‘Gillick-competent’, displacing the power of courts or parents to decide. Examples include GWW and CMW,65 in which the welfare jurisdiction provided the basis for Hannon J’s order authorising the harvesting of bone marrow from a child, B, who was almost 10 years of age, for donation to his maternal aunt who had leukaemia. B’s parents applied for the order, and he was separately represented. Hannon J held that B did not have sufficient understanding to give informed consent and that the procedure fell outside the scope of his parents’ power to give consent, but in granting the order sought had regard to B’s expressed wish to donate bone marrow, concluding that ‘in my opinion the psychological benefit to B of permitting the harvesting of cells outweighs the minimal risks and consequences of the procedures’.66 In contrast, more recently Cronin J held in Re  Inaya (Special Medical Procedure) that court approval was not required for bone marrow harvesting from a one-year-old child for her cousin as the procedure was within the scope

58 Marion’s Case (1992) 175 CLR 218; [1992] HCA 15, 395: it was held that this approach ‘should be followed in this country as part of the common law’. 59 ibid., 250 (Mason CJ, Dawson, Toohey and Gaudron JJ). 60 Section 67ZC was inserted into the Act in 1995. 61 Guidance has been provided in Re Marion (No. 2) (1992) 17 Fam LR 336, while Division 4.2.3 of the Family Law Rules sets out specific requirements regarding conduct of proceedings when a ‘medical procedure application’ is made. 62 P v P (1994) 181 CLR 583; [1994] HCA 20. 63 ibid., 261 (Mason CJ, Dawson, Toohey and Gaudron JJ). 64 In Re: Alex (Hormonal Treatment for Gender Identity Dysphoria) [2004] FamCA 297 (Re: Alex), which involved a child in the care of a state child welfare authority, Nicholson CJ held [153] that parental consent ‘for present purposes may be equated with that of a guardian’. 65 In the Marriage of GWW and CMW (1997) 21 Fam LR 612; [1997] FamCA 2 GWW and CMW. 66 ibid., 620.

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of parental responsibility.67 However, as Re Inaya also illustrates, in these circumstances the court will often still make orders authorising the parents to consent to treatment on the child’s behalf, to provide reassurance to parents and medical professionals.68 Most recently, questions regarding the scope of the welfare jurisdiction have arisen in cases involving children who have the characteristics of one sex but identify as being of the other sex and have been diagnosed with ‘gender identity disorder’. Treatment for childhood gender identity disorder is carried out in two stages. Stage 1 treatment involves the administration of puberty-suppressing hormones, often referred to as ‘blockers’, and preferably begins prior to the child entering puberty. Stage 1 is fully reversible. Stage 2 treatment, which typically commences at 16 years of age, involves the administration of either testosterone or oestrogen. Some of the physical effects of Stage 2 treatment, such as the growth of facial hair and breasts, are irreversible. The application of the section 67ZC welfare jurisdiction was extended to these cases in 2004 in Re: Alex,69 in which Nicholson CJ held that court authorisation was required for both stages of hormone therapies needed for transition from female to male of a 13-year- old child who was anatomically and legally a female but identified as a male.70 Applying Marion’s Case, Chief Justice Nicholson did not consider that gender identity disorder was a ‘malfunction’ or ‘disease’ and concluded that court authorisation was required due to the nature of the proposed procedure, which included the administration of testosterone at Stage 2 for the purposes of ‘masculinising’ the child, with irreversible effects.71 More recently, cases have arisen in which, like Re: Alex, there has been no dispute or opposition about the necessity of the treatment. They include Re: Lucy (Gender Dysphoria), in which Murphy J saw Marion’s Case as providing ‘a much wider ambit for ordinary parental/guardian consent than that which can be given for treatment solely to address “disease” or to correct some “malfunction”’.72 As the hormone treatment proposed for the 13-year-old child wishing to transition from male to female in Re: Lucy was ‘appropriate for and proportionate to the purpose’ of treating the child’s gender identity disorder and was reversible, Murphy J held that court authorisation was not required. However, ‘[s]o as to avoid doubt’, Murphy J made orders—in the form of a declaration—that the applicant (a state child welfare authority) could consent to the proposed treatment. Most recently, the Full Court held in Re: Jamie73 that the court’s authorisation was not required for parents to consent to ‘Stage 1’ treatment for gender identity disorder. Re: Jamie involved a 14-year-old child (11 years old at the time of the trial), who wanted to transition from male to female. Jamie had been diagnosed with gender identity disorder and her parents sought authorisation from the FCoA so that they could consent on Jamie’s behalf to Stage 1 treatment immediately and Stage 2 treatment at a later date. At first instance, 67 Re Inaya (Special Medical Procedure) [2007] FamCA 658. 68 ibid. 69 Re: Alex [2004] FamCA 297. 70 ibid. 71 ibid. 72 Re: Lucy (Gender Dysphoria) [2013] FamCA 518, [94]. 73 Re: Jamie [2013] FamCAFC 110 (Bryant, Finn and Strickland JJ). See further: Fiona Kelly, ‘Treating the Transgendered Child: The Full Court’s Decision in Re: Jamie’ (2014) 28 Australian Journal of Family Law 83.

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Justice Dessau authorised only Stage 1 treatment, determining that given Jamie’s young age, it was premature to make orders for Stage 2 treatment five or six years before it would occur.74 While this allowed Jamie’s Stage 1 treatment to begin, her parents appealed on a point not argued at trial: that treatment for gender identity disorder was not a ‘special medical procedure’ that attracts the jurisdiction of the FCoA under section 67ZC. In  the alternative, they claimed that Dessau J had erred in deciding that Stage 2 treatment should be the subject of a further application. In the leading judgment, Bryant CJ75 held (in contrast to Nicholson CJ in Re: Alex and consistent with Murphy J in Re: Lucy) that reference in Marion’s Case to ‘malfunction’ or ‘disease’ should not be confined to physical conditions, ‘particularly as Brennan J directly addressed the application of the principle to psychiatric disorders and considered it therapeutic provided the treatment is appropriate for and proportionate to the purpose for which it is administered’.76 Once Jamie’s condition was classified as a ‘disorder’, her parents were able to consent to therapeutic treatment, and Stage 1 treatment fell within this category.77 The fact that the treatment was reversible appeared influential.78 Bryant CJ further held that Stage 2 treatment did not require court authorisation if the child was ‘Gillick-competent’. However, considering herself bound by Marion’s Case, Bryant CJ concluded that the question of Gillick-competence would have to be determined by the court:79 ‘In Marion’s case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child’s capacity to consent, and secondly because the consequences of a wrong decision are particularly grave’.80 Whether Marion’s Case supports this conclusion is, however, doubtful for reasons including that the issue of Gillick-competence did not arise in that case. Other questions arising from this aspect of the decision in Re: Jamie are the practical and cost implications especially for families but also for courts if the court must always determine Gillick-competence before Stage 2 treatment can occur. Further issues surround the legitimacy of the limitations placed on Gillick-competent children’s decision-making power in cases where there is a dispute over Stage 1 or 2 treatment (where the court said court authorisation is required, despite Gillick-competence) and at Stage 2 (where the court said there is a requirement of a court determination of Gillick-competence). Indeed, a recent study of Australian children living with gender dysphoria noted that Australia is the only country in the world (in which treatment is available) that requires court authorisation for the treatment of minors living with gender dysphoria.81 Arguably, court determination of Gillick-competence should only be required where it is in doubt or dispute, and where a child is Gillick-competent the child’s decision regarding treatment should be decisive at Stage 1 or 2, preventing the exercise of section 67ZC jurisdiction. However, adopting this approach may just make it less likely that children will be considered ‘Gillick-competent’, 74 Re: Jamie (Special Medical Procedure) [2011] FamCA 248. 75 Re: Jamie [2013] FamCAFC 110, [97] (Bryant CJ). 76 ibid. 77 ibid., [98]. 78 ibid., [108]. 79 ibid., [136]–[139]. 80 ibid., [137]. 81 Jacqueline Hewitt, Campbell Paul, Porpavai Kasiannan, Louise Newman and Garry Warne, ‘Hormone Treatment for Gender Identity Dysphoria in a Cohort of Children and Adolescents’ (2012) 196 Med J Aust 578, 578.

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so that the decision-making power of parents and courts is retained. Questions also surround the extent to which the Re: Jamie might apply to other medical treatment decisions.82 Further questions surround the capacity of section 67ZC orders to bind third parties, particularly following MIMIA v B83 and the more recent decision of the Full Court in Ray  v Males84 (see further 3.7.4.1). Following Ray v Males, it appears that section 67ZC cannot bind a third party without the third party’s consent. The Full Court, applying MIMIA v B, held that section 67ZC did not confer jurisdiction to make orders imposing a duty or liability on a third party (in that case a state child welfare authority) whenever it would advance the child’s welfare to do so. This included cases that (like the case before it and unlike MIMIA v B) were concerned with the issue of the parental responsibility of parties to a marriage for their children. Following this reasoning, a medical practitioner who disagreed with a court order that a young woman be sterilised could not be compelled via section 67ZC orders to carry out the procedure. In MIMIA v B, the scope of the FCoA’s section 67ZC jurisdiction was considered in the context of highly publicised and extensive litigation involving a mother, a father, and their five children who sought asylum in Australia as refugees and were detained in the (now closed) Woomera Immigration Detention Centre. The FCoA litigation began in 2002 when the mother applied as the children’s next friend to the court for orders that the Minister for Immigration and Multicultural and Indigenous Affairs (now the Minister for Immigration and Citizenship) release her two sons, aged 14 and 12, from immigration detention. The trauma and resulting deterioration in mental health suffered by asylumseekers in detention is well documented,85 and there was evidence that this family was no exception.86 In this case, the mother’s application was made immediately after her sons had escaped from and been returned to detention. The father was later given leave to intervene in the proceedings, and the three sisters were joined to the application for release. In the FCoA, the application was dismissed by Dawe J on the basis that the Court had no jurisdiction to make the orders sought. The first-instance decision was overturned on appeal by the Full Court B & B v MIMIA87 (the constitutional aspects of which were discussed at 2.5.2). The majority (Nicholson CJ and O’Ryan J) took a very expansive view of the section 67ZC welfare jurisdiction, and considered that it allowed the Court to make orders for the release of children from immigration detention, and for their protection

82 More recently, see Re Sarah [2014] FamCA 208, in which Macmillan J held that the Court had power (either under s 64B(2)(i) or ss 67ZC) to make the declaration sought by the mother that the child was able to consent to a  gonadectomy, even though this was not a medical procedure requiring court authorisation as required in Marion’s Case. 83 Minister for Immigration, Multiculturalism and Indigenous Affairs v B (MIMIA v B) (2004) 219 CLR 365; [2004] HCA 20. 84 Secretary of the Department of Health and Human Services & Ray and Ors (Ray v Males) [2010] FamCAFC 258 (Bryant CJ, Finn and Ryan JJ). 85 Tania Penovic and Adiva Sifris, ‘Children’s Rights through the Lens of Immigration Detention’ (2006) 20  Australian Journal of Family Law 12, 40, 42. More recently, see Michael Gordon, ‘Manus Island Asylum Seekers in Mental Health Crisis’, The Age, 26 May 2014, . 86 B & B v Minister for Immigration, Multiculturalism and Indigenous Affairs [2003] FamCA 451, [289] (B & B v MIMIA). 87 ibid.

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while there. Then in MIMIA v B,88 the HCoA reversed the decision of the Full Court, unanimously holding that there was no jurisdiction under the FLA to order that children be released from immigration detention, in essence because the Family Court was limited to making orders that had to do with parents’ responsibilities. The Court (Kirby J not deciding) concluded that the section 67ZC jurisdiction was much narrower than the section’s wording suggested. The HCoA (Kirby J not deciding) also held that there was no jurisdiction under the FLA to make orders against the Minister or other officials relating to the treatment of children while in immigration detention. This aspect of the decision was particularly serious for the children, given their inability to rely on the South Australian child protection system due to an agreement between the relevant authorities that no action by the relevant state child welfare authority would be taken without the permission of the Minister for Immigration and Multicultural and Indigenous Affairs.89 Ultimately, the HCoA’s decision depended on a close analysis of the relationship between section 67ZC and other sections of the FLA. Central to the reasoning of Gummow, Hayne and Heydon JJ was the view that the operation of section 67ZC is confined by section 69ZH (titled ‘Additional Application of Part’). As a result of section 69ZH(2) and section 67ZH(3), section 69ZC has effect only insofar as it makes provision ‘with respect to the parental responsibility of the parties to a marriage for a child of the marriage’.90 This view contrasted with the Full Court’s view that section 69ZH was only concerned to confine the operation of the FLA in states that had not referred power to matters within the Commonwealth Parliament’s constitutional power, and was not intended to derogate from the powers of the court in relation to children of marriages.91 After MIMIA v B, commentators have struggled to remain positive about the scope of section 67ZC. Richard Chisholm has written that ‘the core of the reasoning relates to the interpretation of the Family Law Act. If the Act were amended to give the court a wider jurisdiction, it cannot be assumed from MIMIA v B that there would be no jurisdictional basis for it’.92 Chisholm has also suggested that even on the existing interpretation, the court might be able to exercise a broad welfare jurisdiction over children in detention when there is a dispute between parents of the children in detention (for example, a parent not in detention wants contact with the children, and the other parent, in detention with the child, opposes it).93 While the HCoA’s decision in MIMIA v B confirms that the scope of the section 69ZC welfare jurisdiction is currently much narrower than the wording of the section suggests, it does not resolve the continuing question of what additional role section 67ZC plays, given the Court’s broad power to make parenting orders under FLA Part VII. As noted earlier, this was an issue prior to MIMIA v B, but it seems an even more difficult question 88 MIMIA v B (2004) 219 CLR 365, [2004] HCA 20. See further Richard Chisholm, ‘Immigration and the Family Court: The High Court Speaks’ (2005) 18 Australian Journal of Family Law 193; Penovic and Sifris, above n 85. 89 B & B v MIMIA [2003] FamCA 451, [289]–[310] (Nicholson CJ and O’Ryan J). On developments since the HCoA’s decision, see Penovic and Sifris, above n 85. 90 MIMIA v B (2004) 219 CLR 365; [2004] HCA 20, 405. 91 B & B v MIMIA [2003] FamCA 451, [288] and [104]. 92 Chisholm, above n 88, p 206. 93 ibid., p 207.

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now, given the HCoA’s view that the section 67ZC jurisdiction is limited to making orders pertaining to parents’ responsibilities in relation to their children.

3.4.1.2 Relationship between state and federal family law courts’ welfare jurisdictions The question arises as to the scope of the residual parens patriae jurisdiction of state supreme courts, given its similarity to the FLA section 67ZC welfare jurisdiction. As a result of FLA section 69B, jurisdiction under Part VII (within which section 67ZC is located) is exclusive, but children’s ‘welfare’ was not referred by the states in the 1980s. This means that the Commonwealth Parliament cannot legislate to cover the field in this area so that section 109 of the Constitution would apply (Chapter 2). Put another way, sections 67ZC and 69B seem to limit the parens patriae jurisdiction of supreme courts to proceedings that the fall outside the FLA welfare jurisdiction, but what exactly are those proceedings? Unfortunately (but not surprisingly, given the lack of clarity surrounding the scope of the welfare jurisdiction) and there are no easy answers to this question. The HCoA’s view on this is likely to depend on the circumstances of the case, and the composition of the bench at that moment in the Court’s history. Thus in 1994 in P v P,94 a majority of the HCA took a broad view, holding that the FCoA’s welfare jurisdiction allowed it to authorise the sterilisation of a young woman with an intellectual disability; this had the effect of overriding New South Wales (NSW) legislation and the authority of the NSW Guardianship Board regarding the same issue.95 In contrast, as we have just seen, a very restrictive view of section 67ZC was taken by the HCoA in MIMIA v B in 2004 by a differently constituted bench and on a very different issue. Penovic and Sifris have observed that ‘[e]ven though the Family Court was granted [welfare] jurisdiction, the superior courts in Australia were not divested of the parens patriae jurisdiction and continue to exercise it concurrently with the Family Court’.96 While this position seems to be inconsistent with FLA section 69B, it is a fair summary of what is happening in practice. The NSW Supreme Court, for example, has taken an active role in medical decision-making involving children, thus utilising its inherent parens patriae jurisdiction.97 Also, various state guardianship boards continue to exercise power under 94 P v P (1994) 181 CLR 583; [1984] HCA 20. 95 Part 5 of the Guardianship Act 1987 (NSW) imposed strict restrictions on sterilisation of incapable persons aged 16 years and over, and required either that treatment be authorised or that consent be given. 96 Penovic and Sifris, above n 85, p 22. See also Lisa young, Geoff Monahan, Adiva Sifris and Robin Carroll, Family Law in Australia, 8th edition, Lexis Nexis Australia, Sydney, 2012, p 463: ‘Thus, where specific state legislation exists, the relevant body which has jurisdiction to make determinations under that legislation (for example, a Guardianship Board) can give the necessary authorisation, provided that the Family Court has not made a ruling either granting or prohibiting the procedure. In the event that the Family Court has assumed jurisdiction in relation to the matter, the state body has no power to make the order. Note that this is not the case for ex-nuptial children, as the Family Court does not have jurisdiction in this respect.’ (See 3.4.1.) See further Family Law Council, Sterilisation and Other Medical Procedures on Children: A Report to the Attorney-General, 1994, [3.30]; Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of People with Disabilities in Australia, Common wealth of Australia, 2013 [3.49]–[3.51]. 97 For a recent example, see Sydney Children’s Hospital Network (Randwick and Westmead) v X and Others [2013] NSWSC 368. See further John Eades, ‘Parens Patriae Jurisdiction of the Supreme Court Is Alive and Kicking’ (2000) 38 Law Society Journal (NSW) 52, and DoCS v Y [1999] NSWSC 644 (Unreported, Austin J, 30  June  1999): ‘[T]he whole of the parens patriae jurisdiction of the [Supreme] Court with respect to the wardship, custody and care of the children is unaffected by Part VII of the FLA.’

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state legislation to make decisions regarding young people with disabilities (for example, the Guardianship Tribunal in NSW, as was evident in P v P).98 It thus appears that there is ongoing potential for at least some cases to be determined at either a state or federal level. Ultimately, we are left with another instance of fragmentation and possible overlap arising from our federal system of government, with the potential for inconsistent results, forumshopping and confusion for families. Most recently, however, the first report of Senate Community Affairs References Committee on the involuntary or coerced sterilisation of people with disabilities in Australia concluded that concurrent jurisdiction should be retained because ‘[a]s the Commonwealth court, the Family Court facilitates consistency in policy and practice for children regardless of where they live’.99 The report’s recommendations included ‘that the Council of Australian Governments oversee the development of uniform model legislation to regulate the sterilization of persons with disabilities. Based on this model, a new division of the Family Law Act 1975 (Cth) should be created’.100 The Committee extended its terms of reference to include sterilisation of intersex people and presented a second report on this in October 2013.101

3.4.2 Proceedings with a foreign element: Extent of jurisdiction Some family law disputes will involve a foreign element—that is, a marriage entered or dissolved/nullified outside Australia, a party from outside Australia or living outside Australia, and/or property outside Australia. It is therefore important to have an understanding of the FLA jurisdiction in such cases.102 In terms of territorial connection, the rules regarding when a person can start proceedings in the FCoA and the FCCoA (and other courts exercising FLA jurisdiction) are very broad.103 More difficult questions surround whether the court will go ahead and hear the matter and, if so, whether any orders made will be enforceable overseas.  98 In relation to sterilisation, see Senate Community Affairs References Committee, above n 96, [3.52–3.102].  99 ibid., [6.48]. 100 ibid., Recommendation 7.44. 101 Senate Community Affairs References Committee, Parliament of Australia, Involuntary or Coerced Sterilisation of Intersex People in Australia Report, Commonwealth of Australia, 2013. . 102 See further Alexandra Harland, ‘Jurisdiction and the Concept of Domicile, Nationality and Residence’ (2014) 2 Family Law Review 191. 103 See further Martin Davies, Andrew Bell, Paul Le Gay Brereton, Conflict of Laws in Australia, 8th edn, LexisNexis Butterworths, Chatswood, 2010; Ian Kennedy, ‘Forum Shopping’ (2009) 22(2) Australian Family Lawyer 22. The Trans-Tasman Proceedings Act 2010 (Cth) (along with the Trans-Tasman Proceedings Regulations 2012 (Cth)), which came into effect on 13 October 2013, has been enacted to streamline the process for initiating and conducting civil proceedings with Australian and New Zealand elements (for example, by providing for service in New Zealand of initiating documents and subpoenas issued by Australian courts and allowing Australian courts to make interim orders in relation to New Zealand civil proceedings) as well as enforcement of certain New Zealand judgments—although it excludes New Zealand judgments relating to dissolution of marriage, enforcement of child support and spousal/partner maintenance and orders for the care, welfare and development of a child, which are regulated by other means (ss 3, 4 (definition of ‘excluded matter’) and 66(2)). New Zealand has a corresponding Act with the same name and commencement date. The Acts implement a 2008 agreement between the Australian and New Zealand governments: Trans-Tasman Court Proceedings and Regulatory Enforcement. See further Ewan Eggleston, ‘Kiwis and Wallabies: Family Law Financial Issues on Both Sides of the Tasman’ (2012) 23 Australian Family Lawyer 3.

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When a couple who married overseas wish to end their marriage in Australia, a preliminary issue facing the court in divorce or nullity proceedings (and indeed matrimonial property and spousal maintenance proceedings) is whether the marriage is recognised under Australian law. As  discussed in Chapter 4, a foreign marriage will generally be recognised as valid if at the time of celebration it is valid under the local law of the country in which it is celebrated. Provided the marriage is recognised under Australian law, FLA divorce proceedings may be instituted if at the date of the filing of the application either party to the marriage is an Australian citizen, is domiciled in Australia, or is ordinarily resident here and has been so resident for one year immediately preceding that date (FLA section 39(3)). Proceedings for a decree of nullity of marriage, for the adjustment of property interests and for spousal maintenance can be brought if either spouse is, at the time proceedings are instituted, an Australian citizen, ordinarily resident in Australia, or merely present in Australia (FLA section 39(4)). The exercise of FLA jurisdiction in relation to financial disputes on de facto relationship breakdown is subject to the establishment of a link between the parties’ relationships and a ‘participating jurisdiction’ (that is, a referring state) (2.4.1.2; Chapter 13). Foreign divorces, annulments, and legal separations are also recognised under section 104 of the FLA, which is based on the Hague Convention on Recognition of Divorces and Legal Separations.104 As a result, property and spousal maintenance proceedings may be brought even though the parties were separated and/or divorced overseas, provided that the matter arises out of the marital relationship. Further, FLA section 31(2) provides that proceedings can be instituted in relation to ‘persons and things’ outside Australia, giving the court jurisdiction in relation to property outside Australia, and in relation to ancillary matters, for example an application under FLA section 106B to set aside a disposition of property made to a foreign person or company. Proceedings in relation to a child can also be instituted under the FLA in a broad range of cases, namely where: • the child is in Australia or is ordinarily resident in Australia when the application is filed or made; or • the child’s parent is an Australian citizen or is ordinarily resident in Australia when the application is filed or made; or • a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia when the application is filed or made; or • ‘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’ (FLA section 69E). Against this backdrop of broadly drafted FLA provisions regarding the commencement of proceedings with a foreign element, the question still arises whether the court will go 104 Convention on Recognition of Divorces and Legal Separations, concluded 1 June 1970, [1985] ATS 25 (entered into force 24 August 1975 (Australia 23 November 1985)) .

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on and hear a given matter. In proceedings not in relation to a child, this question should be answered by the application of the ‘clearly inappropriate’ test for stay of proceedings in transnational cases, laid down by the HCoA in in 1990 in Voth105 (although in relation to New Zealand the Trans-Tasman Proceedings Act 2010 (Cth)106 s 17(1) departs from this test by allowing Australian courts to decline to exercise jurisdiction or stay proceedings if a New Zealand court is the ‘more appropriate forum’ to determine the matters in dispute). Following the 1996 decision of the HCoA in Henry107 (which involved a wife’s application to stay FCoA divorce proceedings brought by her husband, mainly on the basis that she had commenced identical proceedings in Monaco three months earlier), it is more likely that proceedings will be stayed where foreign proceedings exist in relation to the same matters and parties,108 although this will not necessarily be the case.109 Henry also made clear that the test in Voth (a commercial case) is to be applied in proceedings of the family law courts. In addition, while making clear that ‘the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved’, 110 the Court provided a non-exhaustive list relevant considerations: • if both courts have jurisdiction, whether each will recognise the others’ orders; • if orders will need to be enforced in other countries, the ease with which that can be done; • which forum can provide more effectively for complete resolution of the parties’ dispute; • the order in which proceedings were instituted, the stage they have reached and costs incurred; • the connection of the parties and the marriage with each jurisdiction; • issues on which relief may depend in each jurisdiction; and • the parties’ ability to participate on an equal footing in the proceedings given their resources and understanding of language.111 So, for example, when all or most of the parties’ assets are outside Australia, it may be less likely that Australia will be regarded as the appropriate forum for property proceedings. If the court does exercise jurisdiction, it will apply Australian law to the parties’ dispute regardless of any rights they have under foreign law. The question may still arise whether any orders made will be recognised and enforced in the relevant foreign jurisdiction. This is 105 Voth v Manildra Flour Mills (1990) 171 CLR 538; [1990] HCA 55 (Voth), which was applied by the Full Court in In the Marriage of Gilmore and Gilmore (1993) 16 Fam LR 285 (Gilmore). Gilmore was subsequently the subject of criticism by the HCoA in Henry v Henry (1995) 185 CLR 571; [1996] HCA 51. 106 Trans-Tasman Proceedings Act 2010 (Cth), see commentary above n 103. 107 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 (Henry). 108 ibid., (Dawson, Gaudron, McHugh and Gummow JJ). Brennan CJ agreed with the outcome but on the basis that the marriage had no connection with Australia. 109 For a recent example, see Hughes & Hughes [2014] FamCA 12, [22] where Macmillan J cited other cases in which the same approach had been taken. See further Richard Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test?’ (1999) 23 Melbourne University Law Review 30, 53–5. 110 Henry (1996) 185 CLR 571; [1996] HCA 51, [39] (Dawson, Gaudron, McHugh and Gummow JJ). 111 ibid., [39]–[40] (Dawson, Gaudron, McHugh and Gummow JJ).

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a particular problem regarding property orders, where no reciprocal arrangements with foreign jurisdictions exist (a recent development is the Trans-Tasman Proceedings regime,112 which aims to assist in the enforcement of property orders between Australian and New Zealand). The enforcement of maintenance orders (spousal and de facto maintenance and child maintenance orders where the CSS does not apply) and child support assessment when the respondent is not in Australia depends on whether Australia has a reciprocal relationship with the relevant jurisdiction (Chapter 11). If the respondent is in Australia, or comes to Australia, additional enforcement options exist for financial orders, including through Chapter 20 of the Family Law Rules and Division 25B.2 of the Federal Circuit Court Rules 2001, which provide for enforcement of orders to pay money by a number of means, for example by sale of real and personal property. Regarding children, ‘the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply’.113 When a child is abducted and taken to or from Australia, the principles to be applied depend on whether the other country is a party to the Convention on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention)114 (9.7). Australia is a party to this Convention, which in essence provides for the speedy return of children under the age of 16 to the country where they were habitually resident immediately prior to their removal, when that removal was in breach of custody or access rights.115 The Convention applies when a child is abducted to Australia from another Convention country, and vice versa. When a child is abducted to Australia from a country that is not a party to the Convention, the welfare of the child will be regarded as the paramount consideration.116 If the court decides to hear the case, Australian law will apply. Also of relevance is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (Hague Child Protection Convention), which: [e]stablishes conflicts of law rules to be applied in parental responsibility litigation which has an international aspect. These rules govern the questions whether a court has jurisdiction to hear an international parental responsibility dispute, which country’s law is to be applied in determining international parental responsibility disputes, what conditions must be satisfied to ensure international recognition

112 See commentary, above n 103. 113 Pascarl & Oxley (edited) [2013] FamCAFC 47, [86] (Bryant CJ, Faulks DCJ and Finn J), referring in particular to ZP v PS (1994) 181 CLR 639; [1994] HCA 29; and EJK & TSL [2006] FamCA 730. 114 Convention on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention), concluded 25 October 1980, [1987] ATS 2, entered into force 1 December 1983 (Australia 1 January 1987). 115 Article 4, Hague Child Abduction Convention. 116 ZP v PS (1994) 181 CLR 639; [1994] HCA 29; more recently see Pascarl & Oxley (edited) [2013] FamCAFC 47, [59].

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and enforcement of parenting orders and what obligations courts in Australia and overseas have to co-operate in the protection of children.117

Despite the Child Protection Convention having been in force in Australia since 2003118 and its very wide reach, the Full Court only recently had its first opportunity to consider its operation, in 2013 in Cape & Cape,119 observing that ‘[t]here has to date been virtually no experience in this country, or indeed to the best of our knowledge, in any country, with the operation of the Child Protection Convention, and in particular, its provisions for the recognition and enforcement of the orders of one Convention country in another’.120 In Cape, the mother sought to return to Germany with the parties’ 10-year-old son pending determination of an appeal by the father against orders of the FCoA that allowed her to relocate to Germany with the child. Pursuant to the Child Protection Convention, the trial judge had required her to execute an undertaking that she would return the child to Australia if the husband’s appeal was successful, and to register that undertaking in a court of competent jurisdiction in Germany and in the FCoWA. The Full Court was concerned that this did not provide a sufficient level of protection, ordering instead that the mother be permitted to relocate with the child to Germany pending the outcome of the father’s appeal once she served on the father and the independent children’s lawyer proof that she had obtained recognition of the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany and the FCoWA (pursuant to Article 24 of the Child Protection Convention); or that she had obtained a declaration of enforceability from a court of competent jurisdiction in Germany of the relocation orders and the orders of the Full Court (pursuant to Article 26 of the Child Protection Convention); or that she had registered the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany (pursuant to Article 26 of the Child Protection Convention). Parenting orders can also be enforced if the relevant jurisdiction is a ‘prescribed overseas jurisdiction’ for the purposes of registration and enforcement of parenting orders under FLA section 70N (the jurisdictions are listed in Schedule 1A of the Family Law Regulations).

3.4.3 Additional jurisdiction The FCoA and FCCoA also have several areas of additional, or supplementary, jurisdiction, including associated and accrued jurisdiction. Before discussing the courts’ additional jurisdiction it is important to note, by way of background, that prior to 1998, cross-vesting legislation vested in the FCoA the civil 117 Concluded 19 October 1996, entered into force 1 January 2002 (Australia 1 August 2003), ; General Outline in the Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Act 2002 (Cth), referred to by the Full Court in Cape & Cape [2013] FamCAFC 114, [62] (Finn, Thackray and Aldridge JJ). 118 FLA Division 4 of Part XIIIAA, which implements the Child Protection Convention in Australia, was inserted into the FLA by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth). 119 Cape & Cape [2013] FamCAFC 114. 120 ibid., [73] (Finn, Thackray and Aldridge JJ).

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jurisdiction of the supreme court of each state.121 The main advantage of the cross-vesting scheme was that it allowed the whole of a case to be heard in a superior court of one jurisdiction when that case raised both federal law and state law issues, reducing costs, delay, and inconvenience for the parties. While the cross-vesting scheme was of general application, the major consequence for family law was that ‘family and State courts were granted the ability to hear disputes between de facto couples concerning both children and property concurrently’.122 It also provided a mechanism by which the FCoA, in matrimonial property proceedings, could determine aspects of the dispute not arising from the marital relationship and/or involving the interests of third parties. For example, it allowed tort damages claims for domestic assault to be made at the same time as property proceedings. The cross-vesting scheme was, however, found to be unconstitutional in 1998 by the HCoA in Re Wakim,123 although state courts may continue to exercise jurisdiction in matters of state law as well as federal and territory law, and a vesting of jurisdiction between the Commonwealth and the territories is also still permissible as a result of section 122 of the Constitution, which provides that the Commonwealth may make laws for the territories, with the effect that the FCA and FCCoA’s jurisdiction in territories is not limited in the same way as it is in relation to the states (allowing, for example, the FCoA in the Australian Capital Territory (ACT) to hear adoption proceedings).124 Following Re Wakim there was been a renewed focus on other options (particularly the accrued jurisdiction, and the referral of powers regarding de facto property: 2.4.1.2) for overcoming limitations on FCoA and FCCoA jurisdiction.

3.4.3.1 Associated jurisdiction To the extent that the Constitution allows, the FCoA and FCCoA have jurisdiction in respect of matters which are not otherwise within the jurisdiction conferred on them by statute, but which are associated with matters that are within the courts’ jurisdiction (FLA section 33; Federal Circuit Court of Australia Act 1999 (Cth) section 18). It has been said in relation to FLA section 33 that ‘[t]he effect of this section is far from clear’.125 It is evident, however, that the courts’ associated jurisdiction must always be 121 The cross-vesting scheme was established in 1987, when the Commonwealth, the NT, and every state except WA enacted complementary statutes, each titled the Jurisdiction of Courts (Cross-vesting) Act. The ACT became part of the scheme in 1993. A WA Act also cross-vests jurisdiction between the Supreme Court of WA and the FCoWA (which is not a superior court) upon the transfer of proceedings from one court to the other: Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), ss 4(6), 4(7). For a more detailed account, see Dorothy Kovacs, ‘After the Fall: Recovering Property Jurisdiction in the Family Court of Australia in the Post Cross-Vesting Era’ (2001) 25 Melbourne University Law Review 58. 122 Harrison, ‘Australia’s Family Law Act’, above n 4, p 5. 123 Re Wakim; Ex parte Mc Nally (Re Wakim) (1999) 198 CLR 511; [1999] HCA 27. As a result of Re Wakim, the FCoA cannot determine matters arising under state law by relying on the cross-vesting legislation. The FCoWA is unaffected by the decision, as it is a court created under state law rather than under Chapter III of the Constitution. See Kovacs, above n 121, pp 70–3 for a detailed discussion of the possibility of utilising what is left of cross-vesting by taking claims under the FLA to the state supreme courts. Kovacs (pp 73–80) also argues that the FLA s 78 power to make declarations as to title in property proceedings, in accordance with the general law of property, including state law, may be used to provide ‘the necessary interface for federal proceedings and non-federal aspects of a claim to be regarded as a single matter’. 124 Falconio & Anor & Conchita [2009] FamCA 1323 (Faulks DCJ). 125 R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; [1979] HCA 5, 509 (Gibbs CJ).

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exercised in relation to some express jurisdiction conferred upon them (either by the FLA or some other federal Act), and cannot be relied on as a source of jurisdiction in itself.126 It is also evident that, for constitutional reasons, section 33 (and by extension Federal Circuit Court of Australia Act 1999 section 18) only vests jurisdiction in the FCoA regarding associated matters that arise under federal (rather than state) legislation.127 Given that the associated jurisdiction seems to offer so little in extending the jurisdiction of federal family law courts, it is not surprising that it has not been considered very often in the case law and that the focus has been on the accrued jurisdiction.

3.4.3.2 Accrued jurisdiction The accrued jurisdiction of federal courts derives from section 76(ii) of the Constitution, which allows the Commonwealth Parliament to make laws conferring original jurisdiction on the HCoA ‘in any matter … arising under any laws made by the Parliament’. Also, under section 77 this jurisdiction may be conferred on any federal court. Where it is conferred by Parliament, the accrued jurisdiction allows a federal court to decide ‘the whole of a single justiciable controversy of which a federal issue forms an integral part’.128 This is the case even where non-federal law governs part of the dispute, as long as the non-federal matter is not severable from the federal dispute.129 The HCoA’s decision in Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs130 indicated that the Federal Court’s accrued jurisdiction allows it to determine rights, duties and obligations in legal proceedings that are only partly within its jurisdiction, and which deal with only part of a ‘matter’, provided some remedy is available and the plaintiff has standing to enforce that remedy.131 The accrued jurisdiction of the HCoA132 and the Federal Court133 has been clearly established, but until recently there was much more uncertainty with respect to the FCoA and the FCCoA.134 Unlike associated jurisdiction, accrued jurisdiction is not mentioned in the FLA. The accrued jurisdiction of the Federal Court was recognised in Philip Morris,135 and this decision arguably extended to all courts exercising federal jurisdiction. However, following Philip Morris, there were FCoA cases that included statements both for and against the existence of accrued jurisdiction for the FCoA.136 126 ibid. 127 Smith v Smith (1986) 161 CLR 217; [1986] HCA 36, 240 (Gibbs CJ, Wilson and Dawson JJ). 128 Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36, 293 (Mason, Brennan and Deane JJ). 129 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12, and reiterated by the HCA recently in Re Wakim (1999) 198 CLR 511, [1999] HCA 27, 583–4 (Gummow and Hayne JJ, Gleeson CJ and Gaudron J agreeing). 130 Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510; [1999] HCA 14. 131 See further Kovacs, above n 121, pp 61–2. 132 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; [1942] HCA 12, 465 (Starke J). 133 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 (Philip Morris). 134 See further Kovacs, above n 121, pp 62–70. 135 ibid. 136 For cases including statements in favour of the existence of an accrued jurisdiction see, for example, In the Marriage of A F Petersens (1981) 7 Fam LR 402; In the Marriage of McKay (1984) 9 Fam LR 850; In the Marriage of Smith (1985) 10 Fam LR 283; In the Marriage of Ireland (1986) 11 Fam LR 104. For cases against the existence of an accrued jurisdiction see, for example, In the Marriage of Prince (1984) 9 Fam LR 481; In the Marriage of McKay (1984) 9 Fam LR 850.

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The HCoA considered the issue of the FCoA’s accrued jurisdiction in Smith v Smith.137 Although the Court did not actually have to resolve the issue of accrued jurisdiction in its  final decision, the tone of the judgments suggested that the FCoA did have an accrued jurisdiction.138 However, there was some suggestion that the accrued jurisdiction of the FCoA was more limited than that available to the HCoA or the Federal Court. In contrast, the applicability of Philip Morris and subsequent cases to ‘federal courts’, a category that includes the FCoA, was recognised in obiter by Gummow and Hayne JJ in Re Wakim.139 Given the impact of Re Wakim in narrowing the FCoA’s jurisdiction, it was not surprising that soon after the HCoA’s decision, positive views regarding the existence of the FCoA’s (and also by then, the FCCoA’s) accrued jurisdiction began to surface in firstinstance FCoA decisions. In 2001 in Warby,140 the question of whether the FCoA has an accrued jurisdiction and, if so, its extent and the circumstances in which it could be exercised, came before the Full Court by way of a case stated under section 94A of the FLA. The Court held in the affirmative: [A]s a matter of law, the Family Court of Australia is not restricted to the deter­ mination of a family law claim or proceeding; it may exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part. The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.141

Relevant to whether the FCoA would invoke its accrued jurisdiction were a number of matters drawn from HCoA cases on the accrued jurisdiction, including what the parties have done, the relationships between or among them, the extent to which the claims are part of a single justiciable controversy, whether the claims are non-severable from a matrimonial cause and arise from a common substratum of facts, and the ability of the court to grant an appropriate remedy.142 More recently, in Bergman v Bergman, the Full Court observed, on the basis of HCoA authority, that ‘it must now be accepted that once it is determined that accrued jurisdiction is available in a particular matter there is, at least as a general rule, no discretion not to exercise such jurisdiction’.143 In making its decision in Warby, the Full Court interpreted relevant HCoA jurisprudence, discussed earlier, in a way that supported the existence of the jurisdiction. For example, the Court did not consider that the HCoA’s decision in Re Smith presented a Smith v Smith (1986) 161 CLR 217; [1986] HCA 36. ibid., 236–7 (Gibbs CJ, Wilson and Dawson JJ), 250–1 (Mason, Brennan, Deane JJ). Re Wakim (1999) 198 CLR 511; [1999] HCA 27, 709. Warby and Warby [2001] FamCA 1469 (Warby). ibid., [79] (Nicholson CJ, Finn and Strickland JJ). ibid., 479. For an analysis arguing that this last requirement is unnecessary once it is established that the Family Court has an accrued jurisdiction, see Timothy North, ‘Accrued Jurisdiction: Questions of Discretion and Power’ (2005) 19 Australian Journal of Family Law 178. 143 Bergman and Bergman [2009] FamCAFC 27, [27] (Bryant CJ, Finn and Warnick JJ), citing ASIC v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559; Haughton & Ors v Arms [2006] HCA 59; (2006) 225 CLR 553. Bergman was confirmed in Noll & Noll and Anor [2013] FamCAFC 24. Cf previously, in In the Marriage of Bishop [2003] FamCA 240 the Full Court had considered that where the accrued jurisdiction was attracted the court had a discretion whether or not to exercise it. 137 138 139 140 141 142

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barrier, but rather said that the decision of Gibbs CJ, Wilson and Dawson JJ ‘would seem to be recognition by the High Court that the Family Court of Australia [and now also the FCCoA] can have accrued jurisdiction’.144 The Full Court also considered that ‘previous decisions that the court did not have jurisdiction were based on the factual claim failing to attract the jurisdiction, rather than the fact that the jurisdiction was not available’.145 Although Warby has been applied in subsequent cases,146 the Full Court’s view remains to be tested in the HCoA. For the time being, then, the FCoA’s and FCCoA’s accrued jurisdiction is valuable in two main contexts. First, it permits the courts to resolve matters beyond the scope of the FLA in a dispute between parties to a marriage (for example, contract or tort issues not considered to be property proceedings arising out of the marital relationship: 2.3.2). Second, it permits the courts to determine issues involving third parties whose property interests are bound up with the property of the parties to a marriage (for example, in Warby the husband sought to invoke the accrued jurisdiction of the court so that the interest of the wife’s father in the matrimonial home could be determined concurrently with the property proceedings under FLA section 79). However, the accrued jurisdiction always depends on the court concluding that there exists a ‘single justiciable controversy’ and this is difficult to predict. For example, in 2013 the Full Court held in Noll & Noll147 that, on the basis of the limited information available to it, the wife’s challenge to a financial agreement, and the husband’s claim if the wife was successful for damages against the solicitors who had acted for her did not constitute ‘a single justiciable controversy’, even if ‘a common substratum of facts’ existed: ‘the determination of the federal claim does not require the determination of the claim sought to be attached’.148 While the Court was made aware of Ruane & BachmanRuane & Ors149 in which Murphy J had permitted a claim for negligence against solicitors to be joined with proceedings for property settlement between a husband and wife it did not take the same approach, noting that ‘whether or not accrued jurisdiction is attracted in a particular case, will very much depend on the facts of that case’ and that ‘[t]he factual difference between that case and the present is that in that case a financial agreement between the parties had already been declared to be non-binding’.150 Also unclear is the relationship between the accrued jurisdiction and FLA Part VIIIAA—Orders and injunctions binding third parties (14.2.1). The introduction of Part VIIIAA may resolve some of the same issues that the accrued jurisdiction addresses in the context of matrimonial property disputes. Indeed, in the event of a constitutional challenge to Part VIIIAA, it does seem at least arguable that the presence of the accrued jurisdiction makes Part VIIIAA unnecessary, depending on how wide its scope is interpreted to be. 144 Warby [2001] FamCA 1469, [82]. 145 ibid. 146 For example by the Full Court of the FCoA in Whitehouse and Whitehouse [2009] FamCAFC 207; Bergman & Bergman and Ors [2009] FamCAFC 27; C Pty Ltd and Ors & PGW as Liquidator of S Pty Ltd (In Liq) [2011] FamCAFC 231; Sand & Sand (No. 2) [2012] FamCAFC 216; Noll & Noll and Anor [2013] FamCAFC 24; Selen & Selen and Anor [2013] FamCAFC 39. 147 Noll & Noll and Anor, above n 146. 148 ibid., [36]–[53] (Bryant CJ, Finn and Strickland JJ). 149 Ruane & Bachmann-Ruane and Ors (Accrued Jurisdiction) [2012] FamCA 369. 150 Noll & Noll and Anor, above n 146, [55].

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In Bergman and Bergman,151 the wife’s case was run in the alternative, seeking orders to join third parties (business associates of the husband) to the FLA section 79 property proceedings, pursuant to Part VIIIAA ‘and/or’ the accrued jurisdiction. While the wife failed on both counts and the Full Court did not consider the relationship between the two options, her intention to claim breach of fiduciary duty of one of the third parties if she succeeded in invoking the accrued jurisdiction demonstrates that the accrued jurisdiction is broader than Part VIIIAA, allowing the applicant to bring in any non-severable claim. In contrast, Part VIIIAA is limited to enforcing property rights that already exist under FLA sections 79 and 114 in a way that affects the interests of third parties (FLA section 90AA) (14.2.1).152 So far, the Full Court’s approach to the accrued jurisdiction offers little hope for a more expansive approach. As the Court observed in Noll, in the cases to date in which it had approved the use of the accrued jurisdiction, ‘it has been the determination under state law of what is the property of the parties that has been essential for the purposes of the Family Court’s jurisdiction under section 79 of the Act and thus has been the subject of the accrued jurisdiction’.153

3.5 Other courts exercising jurisdiction under the Family Law Act 3.5.1 The Northern Territory and Western Australia When the FLA came into effect at the start of 1976, the state supreme courts continued to exercise federal jurisdiction in family law matters concurrently with the new FCoA, while the Court became established. After 1 June 1996, all proceedings had to be commenced in the FCoA, with the exception of those initiated in the NT and WA. The Supreme Court of the NT continues to exercise FCoA juris­diction concurrently with the FCoA because the FCoA does not have a judge permanently resident there. However, for jurisdiction to be conferred on a court of a territory under the Act, at least one of the parties must be ordinarily resident in that territory on the day the proceeding is instituted (FLA section 39(8)). Western Australia is the only state that chose to have its own family court—the FCoWA. The court was established pursuant to FLA section 41, which enables the creation of state family courts that are capable of administering both federal and state family law. The FCoWA can thus hear all family matters in WA, whether arising under the FLA or state law.154 A Chief Judge (who has the status of a Supreme Court judge) and judges (who have the status of District Court judges) preside over the court. Appeals lie to the Full Court of the FCoA and, as judges can have concurrent appointments as judges of the FCoA and vice versa, WA judges participate in the appellate work of the FCoA. 151 Bergman and Bergman [2009] FamCAFC 27. More recently, see Puddy & Grossvard and Anor [2010] FamCAFC 54, [101]–[111] (Warnick and Boland JJ). 152 With thanks to Dr Richard Ingleby. 153 Noll & Noll and Anor [2013] FamCAFC 24, [46] (Bryant CJ, Finn and Strickland JJ, citing In the Marriage of Wade-Ferrell [2001] FamCA 138; Warby & Warby [2001] FamCA 1469; Bishop & Bishop [2003] FamCA 240. 154 For more detailed discussion, see Anthony Dickey, Family Law, 6th edn, Thomson Reuters, Sydney, 2013, pp 110–13.

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Because the FCoWA can hear both state and federal law matters, jurisdictional issues do not arise in the same way there (for example, regarding the exercise of accrued jurisdiction) and the non-referral of powers regarding children and de facto financial disputes by WA is less important than it would have been for any other state. Conversely, because WA did not refer its powers in relation to de facto financial disputes, FLA Part VIIIA does not apply to WA (FLA section 90RA) and FLA Part VII has to be read down in its application there (FLA s 69ZE). While Part 5A of WA’s Family Court Act 1997 covers de facto financial disputes, mirroring FLA Part VIIIA there is no power to deal with non-vested superannuation,155 which represents a significant difference in the treatment of married and de facto property disputes, given the increasing importance of superannuation savings. The main effect of the non-referral in relation to children is that in WA nuptial children are covered by the FLA and ex-nuptial children are covered by the Family Court Act 1997 (WA). Amendments to FLA Part VII have usually been copied over into WA’s Family Court Act, and so the relevant law in relation to ex-nuptial children there has been very similar to the position elsewhere in Australia. There is, however, sometimes a time-lag—for example, important changes to FLA Part VII in 1995 which came into effect throughout Australia in 1996 (Chapter 6) were not replicated in WA’s Family Court Act until 1998. In contrast, the 2006 amendments (Chapter 6) were replicated in WA at the same time as they came into effect for the rest of Australia. Also, while WA adopted laws in relation to the CSS156 for ex-nuptial children who are outside the Scheme the applicable provisions are contained in the Family Court Act. Where amendments have been made to the federal CSS, they have been copied over into WA law, but there is once again sometimes a time-lag.157 The applicable law in relation to ex-nuptial children in WA can, then, at times differ from the law elsewhere in Australia, and does differ in relation to de facto property disputes.

3.5.2 Courts of summary jurisdiction So that some relief under the FLA is readily available throughout Australia, especially outside capital cities, courts of summary jurisdiction have limited jurisdiction under the Act. The situation is complicated, but in essence courts of summary jurisdiction can only deal with divorces when the particular court is authorised (currently, only the ACT Magistrates Court, certain magistrates’ courts in WA, and the Court of Petty Sessions of Norfolk Island are so authorised).158 Courts of summary jurisdiction can exercise jurisdiction regarding children’s matters under Part VII (section 69J) and can make parenting orders (other than child maintenance orders under the FLA) unless the parties do not consent to the court hearing the matter (section 69N). Courts of summary jurisdiction can also hear property 155 Chapter 2 n 57. 156 Child Support (Adoption of Laws) Act 1990 (WA) s 5(1), by which WA adopted the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act of the Commonwealth. Section 99(2) of the Child Support (Assessment) Act confers federal jurisdiction on various courts, including the FCoWA, in relation to matters arising under the Act. 157 As a result, in the period before amendments are adopted, the CSS operates, in relation to ex-nuptial children, on the basis of the law applicable in WA before the amendments. Most recently, this practice was confirmed via Schedule 5 of the Child Support Legislation Amendment (Reform of the Child Support Scheme—Initial Measures) Act 2006 (Cth). 158 FLA ss 39(2), 39(6), 39(7AA), 44A and reg 10A of the Family Law Regulations 1984 (Cth).

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proceedings where the value of the property is up to $20,000 and in excess of that amount if the parties consent (section 46(1)). While courts of summary jurisdiction exercise more limited jurisdiction than the FCoA, FCCoA or FCoWA and do not offer the specialist services available at family law courts, they are often an attractive avenue for FLA relief due not only to their geographical accessibility, but also to the lower court costs and the speed with which orders can be obtained. Importantly, in addition to the powers just mentioned, courts of summary jurisdiction also have quite broad scope to make interim orders in relation to both property and parenting matters (on interim parenting orders see 8.3.2). In particular, FLA section 46(3) permits a court of summary jurisdiction, prior to transferring property proceedings of a value exceeding $20,000 to the FCoA, to make such orders as it considers necessary. Courts of summary jurisdiction are therefore convenient, inexpensive and speedy avenues for obtaining urgent orders in relation to property, such as injunctions, as well as urgent orders in relation to children even when the other party objects to the jurisdiction (section 69N(4)). Importantly, proceedings for relief from family violence may also be commenced in a court of summary jurisdiction. While the FCoA can provide injunctive relief in cases of family violence (FLA sections 114 and 68B), courts of summary jurisdiction are often more convenient and also less expensive, and apply state legislative regimes which are specifically designed for this purpose. These avenues as well as the interaction between parenting orders and state intervention orders (FLA Part VII, Division 11) are discussed in Chapter 5. Finally, the child support legislation also confers jurisdiction on courts of summary jurisdiction. Section 99(2) of the Child Support (Assessment) Act 1989 (Cth) provides that courts of summary jurisdiction are invested with federal jurisdiction to determine matters under the Act, subject to modification by proclamation of the Governor-General. So, for example, courts of summary jurisdiction are able to hear applications where paternity (and thus liability to pay child support) is disputed, and applications for repayment of child support where paternity is disestablished (11.3.2). Review of decisions made by courts of summary jurisdiction is by way of a hearing de novo by the FCoA (FLA section 96(4)(a)). This is similar to review of decisions of registrars of the FCoA (3.2.2).

3.6 The future of the federal family law courts 3.6.1 Criticism, scrutiny and review of the federal family law courts Since its establishment the FCoA, along with the FLA, has been the subject of constant criticism, scrutiny and review by the Commonwealth Parliament and various statutory bodies,159 and by the wider public. More recently, the FCCoA has also attracted increasing criticism, scrutiny and review, although to a lesser extent than the FCoA.160 159 See further Harrison, ‘Australia’s Family Law Act’, above n 4, pp 7–8. 160 An example is John Hirst’s critique of the FCoA, ‘Kangaroo Court: Family Law in Australia’ (2005) 17 Quarterly Essay 1.

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To some extent, criticism of the FCoA has been prompted by factors mentioned earlier (3.2.1), including the emerging gap between the ideal of the Court as a ‘helping court’ and the harsher realities of the jurisdiction (particularly the presence of violence in families), as well as ongoing problems of delay, especially in the final hearing of children’s matters. Also relevant have been a number of broader political issues, including the background to the establishment of the FCCoA (3.3.1) leading to ongoing issues surrounding resourcing of and cooperation between two courts with increasingly overlapping jurisdiction, and the lobbying of fathers’ groups who view the FCoA (but not the FCCoA to the same extent) as biased against fathers. At a more fundamental level, ongoing criticism, scrutiny and review of the FCoA, as well as the FCCoA and the FLA, are a predictable result of the nature of the jurisdiction, and the fundamental personal losses sustained by family members upon the breakdown of a relationship. In recent years there has also been a marked retreat from the ideal of federal family law courts offering a ‘one-stop shop’ for separating families. The integrated counselling services initially offered by the FCoA have been reduced due to cuts to the Court’s budget by the Howard Coalition Government and partly due to the establishment of the FCCoA in 2000.161 Lack of adequate resourcing for both the FCoA and the FCCoA has diminished their capacity to perform to a standard that matches up to the original ideals evident at the time when they were established. Given this, and the high personal stakes involved, the consistent pattern that around 90  per cent of matters filed in the FCoA settle without final judicial determination162 seems surprising—until we factor in the emotional and financial costs of legal proceedings163 to family members, along with the incentive for settlement to occur as soon as possible in the dispute, in the form of FCoA and FCCoA processes (Chapters 7 and 12) as well as the encouragement of the Federal Government through law reform and policies that encourage settlement without involving courts (for example, Family Relationship Centres established around Australia from 2006 offer separating parents ‘family dispute resolution’, with this step required in most cases before an application can be made for parenting orders: 7.4 and 7.5). As a result, the most intractable disputes absorb the bulk of FCoA time and resources and are a common feature of the FCCoA’s caseload.

3.6.2 Proposals for reform In recent years, ongoing discussion and uncertainty have surrounded the resourcing of, and cooperation between, the FCoA and the FCCoA. Merger of the courts has been planned but then abandoned by the Federal Government, and the two courts have been retained. The first major shift occurred in 2004, when the courts began to operate out of one registry (the Combined Registry). Then in 2008, just before the Semple Review164 was released recommending merger of the courts, the FCoA and FCCoA announced their plan, 161 162 163 164

Alastair Nicholson, above n 13, p 141. Family Court of Australia, Annual Report 2011–2012, Family Court of Australia, Canberra, 2012, p 49. Legal Aid funding is almost entirely limited to parenting matters and will rarely fund the whole of the proceedings. Des Semple in conjunction with the Attorney-General’s Department, Future Governance Options for Federal Family Law Courts in Australia: Striking the Right Balance, Australian Government, Attorney-General’s Department, Canberra, 2008.

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implemented between 2008 and 2010, to move to a single administration, ‘to maximise the efficiency and resources of the courts and to help address the challenging financial position faced by both courts’.165 The Semple Review’s recommendations were closely reflected in the federal AttorneyGeneral’s announcement on 5 May 2009166 that the government proposed to merge the FCCoA with the FCoA and the Federal Court, so that all federal family law matters would be heard by the FCoA and all general federal law matters by the Federal Court. The restructured FCoA would comprise two tiers: Tier 1, comprising existing judges of the FCoA who would hear appeals and other complex work, and Tier 2, comprising federal magistrates who would undertake the bulk of the family law work, including some work previously done by judges. Federal magistrates integrated into the new FCoA structure would be renamed ‘judges’. Planning for the merger was underway from 2008 but was delayed due to the government’s need to consider the implications of the HCoA’s decision in Lane v Morrison,167 to the effect that the Military Court established by the Howard Federal Government was not constitutionally valid. The Access to Justice (Family Court Restructure and Other Measures) Bill 2010 was introduced into Parliament in June 2010168 but lapsed at dissolution of Parliament in July 2010. Then in 2011, 58 of the FCCoA’s then 62 federal magistrates applied to the HCoA, alleging that the Commonwealth government’s actions in not paying them lifelong pensions on retirement in the same way as other federal judges was unconstitutional because the prospect of having to find work after retirement undermined their independence as a Chapter III court. It was observed at the time that, ‘the claim comes amid acrimony over Gillard government moves to merge most of the [FCCoA] into a lower division of the Family Court of Australia’.169 The next major development was the Skehill Review,170 commissioned by the Federal Government and reporting in January 2012, which recommended against a merger and in favour of increased cooperation between the two courts. This was followed in April 2012 by the Federal Government’s announcement that it had abandoned the merger plans and foreshadowing plans to change the name of the court to give magistrates the status of judges, in order to better reflect the court’s status and to resolve conflict between federal

165 ibid., p 8. 166 Attorney-General for Australia, Robert McLelland, ‘Rudd Government to Reform Federal Courts’, Media Release, 5 May 2009, . 167 Lane v Morrison (2009) 239 CLR 230; [2009] HCA 29. 168 Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2010, p 6518 (Robert McLelland, Attorney-General). 169 Alex Boxsell, ‘Magistrates’ $10m Revolt’, Financial Review (online), 29 July 2011, . 170 Department of Finance and Deregulation, Commonwealth of Australia, Strategic Review of the Small and Medium Agencies in the Attorney-General’s Department (the ‘Skehill Review’), Report to the Australian Government, January 2012.

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magistrates and the government.171 In late August 2012, the Full Federal Court delivered judgment against the federal magistrates in their pension case, and a costs order was made against the applicants.172 In September 2013, the Federal Government announced its intention to better resource the courts via the increase of court fees (effective from 2013)173 and to rename the Federal Magistrates Court the FCCoA174 (effective April 2013). The current position is, then, that once again the problems caused by fragmentation have been recognised but not overcome. Australia has two federal family law courts exercising almost identical jurisdictions but operating on the basis of different procedural and case management systems, although with increased resources and attempts at cooperation.

3.6.3 Ongoing challenges for the federal family law courts In addition to issues surrounding cooperation and resourcing, the FCoA and FCCoA continue to face significant ongoing challenges arising from the nature of the jurisdiction and the likelihood that, even though improved, resourcing will continue to be an issue. These challenges include violence and self-represented litigants.

3.6.3.1 Violence While violence was an unexpected feature of the FCoA’s early operation, the possibility of violence to judges, parties and others attending, including murder, is now acknowledged as a significant risk that must be addressed as part of the FCoA’s and FCCoA’s daily operations.175 The increased danger arises not only because the perpetrator will know where the victim will be, but often because the proceedings themselves represent a threat to the control that one ex-partner (usually the male) wants to exert over the other, manifested in its most extreme form by violence (Chapter 5). Entry into metropolitan FCoA and FCCoA registries now involves passing through security similar to airport security, and the courts have adopted a Family Violence Strategy, which recognises the potential danger to victims of domestic violence at court.176 The Strategy is concerned both with general safety at court, and with modifications of court processes to promote safety. However, a particular issue arises where a decision is made not to raise the issue of violence in relation to the application for parenting orders. In these circumstances it is unclear to what extent victims and their lawyers feel able to utilise the Strategy without being seen to be inconsistent in their approach, and risking the allegation that the victim is an ‘unfriendly parent’ even following the 2012 family violence amendments (5.7.1). 171 Chris Merritt, ‘Roxon Drops Bid to Scrap Court’, The Australian (online), 27 April 2012, 26 May 2014. 172 Baker v Commonwealth of Australia [2012] FCAFC 121. 173 Nicola Roxon, ‘Federal Courts Back on Firm Footing’, Media Release, 10 September 2012, . 174 Nicola Roxon, ‘Introducing the Federal Circuit Court of Australia’, Media Release, 13 September 2012, . 175 For example, Family Law Courts, Do You Have Fears for Your Safety when Attending Court?, undated, . 176 Family Law Courts, Family Violence Strategy, undated, .

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3.6.3.2 Self-represented litigants A further issue of significance for the FCoA, FCCoA and other courts exercising FLA jurisdiction is the number of self-represented litigants (or ‘litigants in person’) appearing in the Court. In 2012–2013, the FCoA reported that 29 per cent of finalised cases involved at least one unrepresented party177 and in the FCCoA the figure was 32.6 per cent.178 The lower FCoA figure is consistent with its predominantly complex caseload. The number of self-represented litigants in the FCoA has remained stable over the past five years.179 The high number of self-represented litigants has come about mainly as a result of restrictions on the availability of legal aid funding, although not entirely: research by John Dewar, Barry Smith and Cate Banks found that most litigants in person were self-represented because they could not afford legal representation, but that some chose not to use a lawyer because they said they did not need, or did not want, one.180 The significant involvement of self-represented litigants, as well as the diversity among them, presents many challenges for courts. These include: • requiring thought to be given to the role of the judge and other court officers; • drawing an appropriate balance between access to justice and preventing vexatious litigants from abusing court processes (and their former partner) and consuming excessive court resources. While the Full Court has developed guidelines in an attempt to assist trial judges regarding the best way to afford procedural fairness and a fair trial for self-represented litigants,181 a problem facing the family law courts is that self-represented litigants are not a homogeneous group. So, for example, a mother who was a victim of domestic violence in In the marriage of T and S182 was self-represented for most of the trial (which involved the father’s application for an order that their two-year-old child live with him) because she could not afford legal representation. As a result of the history of violence perpetrated by the father, the mother was unable to present her case effectively. At the other end of the spectrum, self-represented litigants may also be vexatious litigants who use family law litigation, and particularly parenting order enforcement proceedings, as a form of continuing  abuse of their victims. This phenomenon has been documented by Belinda Paxton: 177 Family Court of Australia, Annual Report, 2012–2013, Family Court of Australia, Canberra, 2013, p 26. 178 Federal Circuit Court of Australia, Annual Report 2012–2013, Federal Circuit Court of Australia, Canberra, 2013, p 62. 179 Family Court of Australia, Annual Report 2012–2013, p 56. See further Rosemary Hunter, Ann Genovese, April Chrzanowski and Carolyn Morris, The Changing Face of Litigation: Unrepresented Litigants in the Family Court of Australia, Law and Justice Foundation of New South Wales, Sydney, 2002; John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia, Research Report No. 20, Family Court of Australia, Canberra, 2000. 180 Dewar et al., Litigants in Person, above n 179, p 1. See also Family Law Council, Litigants in Person: A Report to the Attorney-General Prepared by the Family Law Council, Family Law Council, Canberra, 2000, p 27; Hunter et al., The Changing Face of Litigation, above n 179, p 103. 181 In the Marriage of Johnson (1997) 22 Fam LR 141; Re F: Litigants in Person Guidelines [2001] FamCA 348. See also Family Court of Australia, Self-Represented Litigants, undated, accessed 26 May 2014 . 182 In the Marriage of T and S [2001] FamCA 1147(Nicholson CJ, Ellis and Mullane JJ).

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Many solicitors working in the area of domestic violence and family law will have come across cases where a litigant, restrained by court order from committing acts of violence against a former partner, will endeavour to continue his harassment of her through the court system. Such situations are not common, but nor are they rare. Workers in the area of domestic violence will routinely be told of threats such as ‘You’ll never be happy’, ‘I’ll have you in and out of court for the rest of your life’ or ‘You’ll have to spend all of your money on lawyers.’ Often the litigant can be obsessively zealous. In two cases our service dealt with, the litigant had given up his job to devote himself full-time to legal proceedings against a former partner.183

As discussed at 8.5.3, the parenting order enforcement provisions of the FLA enable a court to make a costs order against the applicant in cases where a contravention is not established or where there is a reasonable excuse for a contravention. Previous applications are relevant to that decision. In addition, the court has a general power in relation to frivolous or vexatious proceedings, including the power on the application of a party to the proceedings to require a person who instituted such proceedings to seek leave from a court prior to instituting further FLA proceedings (Part XIB and section 118).184 These provisions were introduced recently by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) which repealed the existing provisions, going some way to address Belinda Paxton’s concern, writing in 2003, about ‘a surprising lack of attention paid to the issue of vexatious litigation in the Family Court’.185 Paxton expressed concern that by assisting self-represented litigants ‘the Family Court may be unwittingly drawn into assisting an abusive partner to harass’.186 The new provisions were applied recently in Cannon & Acres by Benjamin J (8.4.1.3.4).187 The challenges posed by self-represented litigants have tended to be seen in a fairly negative light (as a problem to be addressed). On the other hand, Rosemary Hunter and colleagues’ research suggests that ‘the appearance of unrepresented litigants at appeal level has not hindered the development of the Family Court’s jurisprudence’, and has ‘had an impact on the development of a new strand of jurisprudence dealing specifically with the way in which trial judges should ensure a fair trial for litigants appearing in person’.188 In addition, the involvement of unrepresented litigants may be seen to have resulted in (or at least contributed to) some important general gains, apart from the obvious one of providing access to the courts for those who would not otherwise have that access. These gains include ongoing efforts to make court processes more accessible and easily understood.189 Simplified procedures have been a key goal of the FCCoA since its establishment, while in the FCoA 183 Belinda Paxton, ‘Domestic Violence and Abuse of Process’ (2003) 17 Australian Family Law 7. 184 This section requires that there be proceedings: DJS and SJS and Child Representative [2005] FamCA 1006. It  may also require that these proceedings have been dismissed as frivolous or vexatious: see discussion in Paxton, above n 183, p 7. 185 Paxton, above n 183, p 11. 186 ibid. 187 Cannon & Acres [2014] FamCA 104. 188 Hunter et al., The Changing Face of Litigation, above n 179, p xii. The case law is summarised at pp 175–85, including In the Marriage of Johnson (1997) 22 Fam LR 141 and Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517. 189 The two phenomena may effectively reinforce each other, with more user-friendly procedures contributing to litigants’ ability and willingness to represent themselves.

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in recent years there has been a shift towards less adversarial, court-managed proceedings in children’s matters (7.6.1).190

3.7 Case study: Jurisdictional overlap in child protection ‘Child protection’ is that area of the law that deals with non-criminal state responses to the abuse and/or neglect of children.191 We use the example of overlapping state and federal jurisdictions in this area192 to conclude this chapter because it offers a significant and ongoing instance of the serious practical implications of what may initially appear to be abstract jurisdictional rules resulting from the division of legislative power under the Constitution. Indeed, ‘[i]t is common for child protection concerns to be raised in an application under the Family Law Act’.193 A 2007 study of 300 court files involving parenting disputes from three registries of the FCoA and the FCCoA revealed that allegations of child abuse were raised in 79 per cent of all cases judicially determined by the FCoA and 67 per cent of cases judicially determined by the FCCoA; after the 2006 amendments the AIFS Evaluation found that the rates were 50 per cent and 70 per cent respectively.194 The case summary below provides a clear illustration of the problems that arise in this area. After outlining the relevant law at state and federal level, along with court processes and procedures designed to address overlap, we consider empirical research that suggests a gap between the law and process we have described and what is happening in practice. We  conclude by considering recent initiatives and proposals for reform.

3.7.1 Case summary The following case summary comes from Belinda Fehlberg and Fiona Kelly’s study of jurisdictional overlap in the area of child protection.195 While that research was conducted in 2000, the Australian Law Reform Commission/NSW Law Reform Commission’s 2010 Family Violence report indicates that 10 years later the same issues continue to arise.196 190 See further Margaret Harrison, Finding a Better Way: A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings, Family Court of Australia, Canberra, 2007. 191 See further Thea Brown and Renata Alexander, Child Abuse and Family Law: Understanding the Issues Facing Human Service and Legal Professionals, Allen & Unwin, Crows Nest, 2007. 192 There may also be overlap with criminal law: see further the jointly published report by the Australian Law Reform Commission (ALRC) and the NSW Law Reform Commission (NSWLRC), Australian Law Reform Commission, Family Violence: A National Legal Response, Report No. 114, ALRC, Sydney, 2010; NSW Law Reform Commission, Family Violence: A National Legal Response, Report No. 128, NSWLRC, Sydney, 2010 . 193 ibid., p 903. 194 Kaspiew et al., above n 26, p 314, referring to Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-Reform Exploratory Study, Australian Institute of Family Studies, Melbourne, 2007. 195 Belinda Fehlberg and Fiona Kelly, ‘Jurisdictional Overlaps between the Family Division of the Children’s Court of Victoria and the Family Court of Australia’ (2000) 14 Australian Journal of Family Law 211; Fiona Kelly and Belinda Fehlberg, ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in the Area of Child Protection’ (2002) 16 International Journal of Law, Policy and the Family 38. 196 Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: Improving Legal Frameworks—Consultation Paper, ALRC Consultation Paper No 1, 201; NSWLRC Consultation Paper No 9, 2010, chapter 14, particularly p 649; ALRC/NSWLRC, Family Violence, above n 192, chapter 19.

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Involvement of the Victorian Department of Human Services (the Department) began in 1995 when a notification was made regarding the four children (all aged between four and eight) being exposed to domestic violence. No action was taken. The parents separated in March 1996 and sought parenting orders in the FCoA. The father succeeded in gaining interim residence and the mother was given contact (reflecting the FLA terminology at that time). The father’s success seemed to be based on the mother having left the children in his care, moving into a domestic violence refuge, and not exercising any contact with the children during this time, though the judge’s reasoning was not clear. The mother made further applications in the FCoA claiming she was too scared to exercise her contact rights and she rarely saw the children. Over the next three years there were numerous notifications to the Department by both of the parents alleging abuse of the children, most of which were investigated but dismissed by the Department. The father also over this period attempted in the FCoA to reduce the mother’s contact with the children but was unsuccessful. In July 1999, the mother failed to return the children from a contact visit because the children said they were being physically abused by their father and that they had witnessed domestic violence within his home. The father was granted a recovery order in the FCoA, yet on the same day a protection application was issued in the Bendigo Magistrates’ Court and the children were put on an interim accommodation order to their mother. Also on that day another FCoA family report was released stating that the children needed regular contact with their mother and that the two older girls ‘have become inappropriately involved in their parents’ dispute’. Two weeks later, a Victorian Children’s Court Report recommended that the children return to their father as there was not sufficient evidence to remove them. It  was stated, however, that ‘given the many times the children have been interviewed by DHS and by Family Court counsellors, as well as the many counselling sessions which [one of the children] had at the Centre Against Sexual Assault, uncontaminated evidence from the children is unlikely to be obtained’. Despite the Department’s recommendation, the interim accommodation order to the mother was extended. In the meantime, Family Court proceedings were adjourned due to the Children’s Court involvement. However, a month later, a Family Court order was made giving the father residence (which should not have occurred—see later discussion of FLA section 69ZK), and a Children’s Court interim accommodation order to the mother was extended on the same day. Two weeks later the interim accommodation order was extended by the Children’s Court to allow for the Family Court to review proceedings. The mother and father both filed in the FCoA seeking residence. The Department sought to have the Children’s Court protection application struck out and to withdraw from further proceedings. The solicitors for both parents agreed. However, the Children’s Court Magistrate refused to allow the Department to withdraw as she was of the belief that there was still a protective concern. While the matter was resolved soon after and the protection application was struck out, the decision of the Magistrate to prevent withdrawal became the subject of litigation in the Victorian Supreme Court. The case returned to the FCoA in October 1999. At that point, the judge agreed with the solicitor’s observation that Departmental withdrawal did not necessarily mean that there were no protective concerns.

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Finally, in December 1999 a FCoA order gave the mother residence of the three older children, and the father was given residence of the youngest child until the end of the school year. After that point the youngest child was to be placed in her mother’s care. The judge expressed concern over the children’s future, stating ‘there are many more days in court still to be had by this family’.

The ALRC/NSWLRC observed in 2010 that: There are three main issues that arise from this jurisdictional tangle: • • •

family courts and their relationship with child protection agencies; the power of children’s courts to make parenting orders; and the problem of duplication of proceedings, with families in both courts.197

However, the central concern in cases like this is that duplication of proceedings across two different court systems is likely to be highly destructive in its consequences for children and their families who move between the courts in this way. ‘Systems abuse’ (meaning ‘the preventable harm [that] is done to children in the context of policies and programs which are designed to provide adequate care or protection’198) may result from the lack of coordination between jurisdictions. The system in place to deal with issues of childcare and protection should involve minimal delay and duplication, and reduce disruption, uncertainty, and further risk of abuse for the child where possible. The available evidence suggests that the current system does not meet these standards.199 In the following discussion, we attempt to unravel in more technical terms how cases like our example arise, are resolved, and should be resolved.

3.7.2 The constitutional framework Jurisdictional overlap in the area of child protection arises due to Australia’s federal system of government and the distribution of powers between federal and state legislatures. As  discussed at 2.2, under the Constitution, neither the Commonwealth Parliament nor the state parliaments have exclusive legislative competence in the areas of law relevant to family disputes. The situation was improved by the referral of powers relating to children by most states in 1986, but where states have not referred their ‘welfare’ power there has been continuing overlap in the area of child protection. As noted earlier in this chapter (3.4.1), although there has been some dispute about the implications of the ‘welfare’ exclusion, an important practical result is that the FLA now applies to the making of parenting orders in relation to all children, while child protection issues remain the domain of the states. This line, however, becomes blurred in cases like our example—that is, when a child protection issue arises in the context of a parenting dispute, or vice versa. 197 ALRC/NSWLRC, above n 192, p 905. 198 Judy Cashmore, Robyn Dolby and Deborah Brennan, Systems Abuse: Problems and Solutions, NSW Child Protection Council, Sydney, 1994, p 11, cited in Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Commonwealth of Australia, Canberra, 1997, [17.6]. 199 See, for example, ALRC and HREOC, Seen and Heard, above n 198; Thea Brown, Margherita Frederico, Lesley Hewitt and Rosemary Sheehan, Violence in Families—Report Number One: The Management of Child Abuse Allegations in Custody and Access Disputes before the FCOA of Australia, Monash University, Clayton, 1998, chapters 5 and 6; Women’s Legal Resources Centre, Systemic Problems in Child Protection: A Community Discussion Paper, Women’s Legal Resources Centre, Sydney, August 2000.

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3.7.3 The resulting legislation Australia’s federal system of government provides the foundation for the complex web of state and federal legislation that operates in the area of child protection.

3.7.3.1 State child protection legislation Every state has legislation which has as its general purpose the protection of children.200 Each of the various Acts provides for a child welfare authority for that state.201 While there is some variation across states regarding both the threshold test for intervention and the test to be applied at the decision-making stage,202 the applicant in family proceedings in state children’s courts is always the state child welfare authority. Hence, children’s court disputes are generally categorised as public law disputes with the state acting as applicant, in contrast to disputes under the FLA, where the applicant and respondent are each usually a parent or family member and the dispute is thus a private one. This distinction is, however, an oversimplification as there can be a ‘private’ element to child protection disputes and a ‘public’ element to FLA disputes. For example, in a FLA matter an allegation of abuse may be made, requiring child welfare authorities to become involved. Conversely, at the state level, once the public law threshold test for intervention has been met, a children’s court may make custody and access orders (as they are still called in some states) in favour of individuals in the context of exercising their protective jurisdiction (although the ambit of this power depends on the order made), thus creating a ‘private’ law dimension in such disputes. However, despite this blurring of the boundary between the ‘public’ and the ‘private’, the largely public nature of state children’s court disputes and the largely private nature of FLA disputes mean that the focus of each of the courts is distinct. In the children’s courts, the focus is on determining whether or not the state should intervene to protect the child. In FLA proceedings, the focus is on determining a private dispute between adults (usually parents) in relation to the care of the child.

3.7.3.2 The Family Law Act and child protection The powers of courts in relation to children arise under Part VII of the FLA. Of most relevance here is the power to make parenting orders (Chapter 8).203 As noted at 2.2, under section 109 of the Constitution, state laws are invalid to the extent that they are inconsistent with validly enacted laws of the Commonwealth. However, in 200 Leah Bromfield and Daryl Higgins, National Comparison of Child Protection Systems, Child Abuse Prevention Issues Paper No. 22, Australian Institute of Family Studies, Melbourne, August 2005. As for federal family law, this area is one of constant change: for example, in Victoria on 23 April 2007, the Children, Youth and Families Act 2005 (Vic) replaced most of the Children and Young Persons Act 1989 (Vic) (the relevant legislation during the period of Fehlberg and Kelly’s study). However, the grounds under which a child may be found to be in need of protection are unchanged and the powers of the court are not substantially altered. 201 Bromfield and Higgins, above n 200. 202 See further ALRC/NSWLRC, Family Violence, above n 192, p 893; Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia, Discussion Paper No. 2, Australian Government Publishing Service, Canberra, 2000, Appendix B. 203 As discussed at 3.5.2, each state court of summary jurisdiction is also invested with limited federal jurisdiction under Part VII of the FLA by virtue of s  69J of the FLA. FCCoA jurisdiction under Part VII of the FLA is conferred by FLA s 69H.

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this area state law prevails so where there is jurisdictional overlap, section 69ZK of the FLA makes clear that orders pursuant to state child welfare laws take precedence over FLA parenting orders. If there are pre-existing children’s court orders regarding a child, FLA jurisdiction is suspended until the expiration of the state orders (FLA section 69ZK(1)). FLA jurisdiction is unfettered if no orders have been made pursuant to state child welfare laws, but if it appears that such orders may be made, the court may adjourn proceedings before it in relation to that child (FLA section 69ZK(3)). In cases where children’s court orders are imminent, adjournment would seem likely given that pre-existing FLA orders are overridden by subsequent children’s court orders (FLA section 69ZK(2)).

3.7.4 Procedures and processes for dealing with overlap Two main initiatives have been developed to deal specifically with instances of jurisdictional overlap in the area of child protection. They are notification provisions under the FLA, and the development of protocols between the federal family law courts and respective state child welfare authorities.

3.7.4.1 Notifications of abuse under the Family Law Act The FLA contains several provisions regarding the notification process to be followed within courts when abuse allegations are made. The notification provisions are essentially to the effect that if child protection issues arise in the context of FLA Part VII proceedings, the court must notify the relevant child welfare authority. More specifically, the FLA requires court personnel who in the course of their work have reasonable grounds for suspecting child abuse to notify the relevant child welfare authority (section 67ZA). Parties who allege child abuse in parenting proceedings are required to file a notice in the prescribed form in the court (upon which the registrar must notify the relevant child welfare authority) as well as serving a copy on the alleged abuser (section 67Z). The 2012 amendments (5.7.1 extended the requirement to allegations of family violence (section 67ZBA). In addition, parties who are aware of an abuse notification to or investigation by a state child welfare involvement in relation to the child, or another child in that child’s family, must now inform the court of this; a person who is not a party may inform the court (section 60CI); and judges are now required to ask each party whether they consider that the child is at risk or has been subject to abuse, neglect or family violence (and whether they consider that they or another party have been subject to family violence or are at risk of being so)(section 69ZQ1(aa)). The new provisions were aimed at further improving information available to federal family law courts regarding state child welfare authority involvement. Notification procedures also provide state child welfare authorities with the opportunity to assess protective issues arising in FLA cases, so that an informed decision can be made as to whether to intervene in the proceedings (section 92A) or have the matter proceed at a state level. Following notification and investigation, a state child welfare authority has a number of options. It may initiate children’s court proceedings, with the result that FLA proceedings will be curtailed. Alternatively, it may intervene in the FLA proceedings as a party, or as a friend of the court (amicus curiae), or it may decide to do nothing. To encourage

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intervention, a further 2012 amendment was to provide that state child welfare authorities who intervene in good faith will not be subject to costs orders (section 117(4A)). The FLA also contains provisions that allow family courts to obtain information from state child welfare agencies (section 69ZW). A judge may also request the intervention of the child welfare authority (section 91B). Significantly, though, there is no express power for a judge to compel such intervention. In 2009, an attempt to circumvent this problem was made by Justice Benjamin in Ray and Anor v Males and Ors, a case involving allegations of child abuse of two children.204 Benjamin J held that (1) FLA section 31 coupled with Division 12A of Part VII, (2) the welfare jurisdiction (section 67ZC), or (3) the accrued jurisdiction of the FCoA allowed him to join the Secretary of the Tasmanian Department of Health and Human Services as a party to the proceedings without the consent of the Secretary and to make an order imposing parental responsibility on the Secretary. Justice Benjamin did this out of concern that no other person would be found to be a viable carer for the two children and because the Secretary had declined to intervene when invited under FLA section 91B and did not consent to accepting parental responsibility for the children. The Full Court, however, allowed the appeal,205 disagreeing with all three approaches identified by Benjamin J. First, the Court did not consider that ‘Division 12A either alone, or in concert with any other provision of the Act, would support the order joining the Secretary. In our opinion, the Division (which is headed “Principles for conduct of child related proceedings”) is essentially concerned with procedure and evidence; it is not concerned with people who may be parties to proceedings’.206 Second, the Full Court considered that the judgments of Gleeson CJ and McHugh J and also of Gummow, Hayne and Heydon JJ in MIMIA v B (3.4.1.1) ‘pose formidable difficulties for any attempt to rely on section 67ZC to support the orders appealed in the present case’, emphasising Gleeson CJ and McHugh’s view that ‘Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so’.207 Finally, the Full Court disagreed with Benjamin J’s view that the parens patriae jurisdiction of the Tasmanian Supreme Court might be available to the Family Court through its accrued jurisdiction. The Full Court was not persuaded that this approach would support an order that the Secretary assume parental responsibility for the children and also considered that there was, at the time of the making of the order appealed, ‘no claim or proceeding in existence which involved the Secretary under State law and which might form part of the controversy between the children’s parents and other relatives which was pending in the Family Court’.208 204 Ray and Anor & Males and Ors [2009] FamCA 219. 205 Secretary of the Department of Health and Human Services & Ray and Ors [2010] FamCAFC 258 (Bryant CJ, Finn and Ryan JJ); Belinda Fehlberg, ‘Parenting Disputes, State Child Protection Laws and an Attempt at Lateral Thinking (2011) 25 Australian Journal of Family Law 157. 206 Secretary of the Department of Health and Human Services & Ray and Ors [2010] FamCAFC 258, [78] (Bryant CJ, Finn and Ryan JJ). 207 ibid., [88], citing MIMIA v B (2004) 219 CLR 365; [2004] HCA 20, [52] (Gummow, Hayne and Heydon JJ). 208 ibid., [93]–[94] (Bryant CJ, Finn and Ryan JJ). The Court also held that FLA s 65D(1) in combination with s 64C, s 64B(6) and s 65C (supported by the conferral of jurisdiction in s 69H(1) and s 69ZH) did not provide power to make an order binding the Secretary even without his consent, as was argued for the federal AttorneyGeneral (an intervenor): [58].

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In concluding, the Court indicated an awareness of the range of interests involved: We appreciate the dilemma which Benjamin J found, or was concerned that he would find himself in, being what arrangements could be made for the care of the children if, and when, all private parties before him were to be found wanting as carers for the children. We acknowledge the co-operation that courts exercising jurisdiction under the Act regularly receive from various State and Territory child welfare departments and agencies, and we also understand the resource problems which such departments and agencies have. But notwithstanding these considerations, we consider it necessary to observe that this case illustrates the need for continuing attempts to harmonise in some way the administration of State and Federal laws concerned with the welfare of children.209

However, underlying the Full Court’s view appeared to be a fundamental view that the court did not have power to make orders binding third parties: We are not persuaded that … any … section in the Act … confers power on the Court to make an order which would impose obligations or responsibilities (other than financial obligations) on a person in relation to a child without that person’s consent where that person does not already have parental responsibility for the child … Common sense dictates that it would not usually be in a child’s interests for the child to be placed in the care or under the responsibility of a person who did not wish to assume that care or responsibility. If the legislature had intended that obligations in relation to, and responsibility for, a child could be imposed on persons who do not already have parental responsibility for that child, it is only to be expected that it would have expressed such an intention in clear terms. It has not done so.210

This decision—along with MIMIA v B—underlines that an important caveat exists to the HCoA’s decision in U v U211 (to the effect that when making orders the court is not restricted to proposals made by the parties), which is that the court is restricted to proposals that impose liabilities and duties on the parties themselves unless a third party agrees to be bound. The implications of this for the workability of many parenting orders—which will often depend on the cooperation of a third party, such as a medical practitioner, school or children’s contact centre—are potentially very significant. At a minimum, the Full Court’s decision makes clear that state child welfare authorities can be invited but not compelled to participate in family law proceedings, and that FLA orders for parental responsibility cannot be imposed upon them without their consent. While state child welfare authorities are not obliged to take any action (apart from considering the notification), nor to give reasons for a decision not to act,212 they also retain the power to seek orders in the children’s court at any time, including after FLA orders have been made. This raises another possible problem: the opportunity for forum shopping, with parties being able to re-litigate [parenting] issues in the Family Court once juvenile court orders have expired. In addition, there is nothing to prevent a State welfare authority, dissatisfied with a Family Court 209 210 211 212

ibid., [96] (Bryant CJ, Finn and Ryan JJ). ibid., [80]–[81] (Bryant CJ, Finn and Ryan JJ). U v U (2002) 211 CLR 238; [2002] HCA 36. This is in accordance with protocols between the FCoA and state child protection authorities.

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outcome, from making an application in the juvenile court rather than pursuing an appeal from the decision in the Family Court.213

There is evidence that many problems exist regarding the steps that child welfare authorities take to follow up on FLA notifications.214 Empirical evidence suggests that notifications rarely result in any action on the part of state child welfare authorities, in state or federal courts.215 The suggestion is frequently made that child welfare departments regard allegations of abuse that arise during FLA proceedings as having been brought falsely for tactical reasons, or consider them to be less serious than those brought in public law cases.216 For example, Thea Brown and her colleagues found that in Victoria in 1994–96, only 50  per  cent of cases referred to the state child welfare authority were assessed,217 responses took an average of 42 days to arrive at the FCoA (double the time suggested in the Victorian Protocol between the FCoA and the relevant child protection authority),218 and many were cryptic and inconclusive.219 Nevertheless, Brown and her colleagues claim that the false allegation rate was approximately nine per cent, the same as that for all abuse allegations.220 However, from the perspective of state child welfare authorities there may be a number of reasons for non-involvement, including that the report may not be judged sufficiently serious to justify intervention given different legal and cultural practices and understandings about the appropriate threshold for intervention between family courts and child protection agencies; because the information provided by the person who notifies the abuse may not disclose sufficient reason to believe the child is at risk of the alleged abuse; because the reported concern does not raise protective issues that might justify the involvement of child protection agencies; because the state welfare authority has had little or no involvement with the family, and/or because the child protection agency may decide that the family court is the most appropriate venue, especially if there is a viable carer for the child. There is also the risk that ‘if they were to respond to all requests from the court for information, investigations and participation in family court cases, they would have a flow of work over which they have no control and for which they are not funded. This could divert them from priorities and undermine other work’.221 In the end: [T]he net effect of these dynamics is that, in some locations at least, family courts expect a response that they do not get from child protection agencies. Family courts need information to assist them in making decisions about children’s safety in cases where there have been allegations of child abuse. They have no investigatory arm 213 Linda Dessau, ‘A Unified FCoA’, paper presented at the Third National FCoA Conference, Hotel Sofitel, Melbourne, October 1998, p 10. 214 Brown et al., Violence in Families, above n 199, chapters 5 and 6; Family Law Council, Family Law and Child Protection: Final Report, Commonwealth of Australia, Canberra, 2002, p 46. 215 Brown et al., Violence in Families, above n 199, p 83. 216 ibid., p 81. 217 ibid., p 83. Similar findings were made by Penny Armytage, ‘Child Protection in the Victorian Human Services Department’, paper presented at Children at Risk Seminar, Association of Family Lawyers and Conciliators, University of Melbourne Business School, 1997. 218 Protocol between Human Services and the FCoA of Australia, 1996(Vic) [8.4.2]. 219 Brown et al., Violence in Families, above n 214, p 87. 220 ibid. Although there has been some recent criticism of this study: Moloney et al., above n 194, pp 39–42. 221 ALRC/NSWLRC above n 192, pp 909–10.

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through which they can acquire independent evidence. They want the information from child protection agencies, but the agency does not always respond in the way that the court wishes.222

3.7.4.2 Child protection protocols These problems exist despite the fact that, in most states, family law courts and the relevant state child welfare authorities have entered into protocols for the purpose of coordinating the work of all those involved in the area of child protection. The protocols are designed to assist cooperation, clarify procedures and improve decision making in cases that may occur in either or both federal and state jurisdictions. For example, the Victorian Protocol at the time of the Fehlberg and Kelly research provided, among other things, that when the Department of Human Services was deciding in which court a case should proceed, the Department must consider matters including whether there is an appropriate carer or parent willing to apply for FCoA parenting orders; which court is likely to provide the quickest and most effective solution to secure the welfare of the child; and whether protective concerns can be alleviated by FCoA orders.223 The protocols are vital to ensuring a smooth working relationship between the different personnel. However, they cannot always prevent instances of overlap and duplication, and empirical research has suggested that the Victorian protocol was being infrequently and inconsistently applied.224

3.7.5 Empirical research on jurisdictional overlap Empirical research in this area began with that of Thea Brown and colleagues, who suggested that child protection cases were an important part of the FCoA’s workload.225 Specifically, research by Brown and her colleagues found that cases involving allegations of child abuse in Victoria and the ACT are not solely the concern of the children’s courts, and in fact make up a proportionally small yet significant percentage of FCoA cases.226 Brown and her colleagues argued that cases in which there are allegations of child abuse are part of the ‘core business’ of the FCoA, and consequently the court has developed considerable expertise in the area.227 Their study found that in the FCoA only three per cent of total applications and five per cent of applications involving children’s matters in 1994–96 included allegations of child abuse.228 However, ‘they did not resolve in the same way that other cases did, that is without much intervention from the court. Rather the reverse applied: they resolved only after considerable intervention, much of which was counterproductive.’229 In response to Brown and her colleagues’ research, the FCoA introduced a special case management 222 ibid., 911. 223 Protocol between the Department of Human Services and the FCOA (1996) (Vic) [11.7]. 224 Fehlberg and Kelly, ‘Jurisdictional Overlaps’, above n 195; Kelly and Fehlberg, ‘Australia’s Fragmented Family Law System’, above n 195. 225 Brown et al., Violence in Families, above n 214. 226 ibid., p 87. 227 ibid. 228 ibid., pp 70–1. 229 Thea Brown, ‘Children and Family Violence in the Family Court: Research into Action’, paper presented at ‘Challenging Families, Challenging Futures’, 6th Australian Institute of Family Studies Conference, Melbourne, 25–27 November 1998.

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system for cases in which there are serious allegations of sexual or physical child abuse (the Magellan system: 7.6.2). However, there is not a designated Magellan judge in each FCoA registry, Magellan does not operate in the FCCoA, it does not capture all cases involving child abuse allegations and while it ‘provides a significant improvement, … [it] does not completely address the absence of a federal forensic mechanism to respond to such allegations’.230 The Brown study also suggested that there is a tendency for cases to be ‘referred to the FCoA’231 by the Victorian and ACT child welfare authorities, ‘who chose to do so rather than handle the matter themselves, thereby underlining the movement of the [Family] Court into the child protection services system’.232 This view was supported by research conducted in Victoria by Fehlberg and Kelly, mentioned earlier (3.7.1), which involved the tracking of cases heard in either the Melbourne or ACT children’s courts and in the FCoA in which there were allegations of child abuse. The most common outcome of the cases studied was for the relevant state child welfare authority to withdraw from Children’s Court proceedings because a ‘viable carer’ had been identified by protective workers and that carer had obtained, applied for, or was willing to apply for FCoA orders.233 The  Fehlberg and Kelly study found a lack of communication and coordination between the FCoA and the Melbourne Children’s Court, and between the FCoA and the Victorian child welfare authority, as well as a failure to apply the Victorian Protocol consistently or at all.234 In contrast, in the ACT, a much smaller jurisdiction, communication and coordination were much more evident. In the Fehlberg and Kelly study, cases of serious overlap (in terms of duration of the case, lack of communication between authorities, and consequences for the parties), such as the case summary set out earlier (3.7.1), were infrequent, and were likely to have been complex cases wherever they were heard. Overlapping jurisdictions, however, added to this complexity by providing the parties with an opportunity to extend their dispute further. Fehlberg and Kelly argued that, particularly in Victoria where communication between relevant authorities was rare despite the protocol, these cases consumed a considerable amount of court time and resources across two court systems and were serious enough in their consequences for children to warrant concern. The empirical evidence discussed so far comes almost exclusively from Victoria. It is now clear, however, that, although regional differences exist, a similar pattern of overlap can be found in other states.235 Support for change in submissions to the ALRC/NSWLRC Family Violence reference was considerable, including ‘overwhelming support from stakeholders for child protection agencies to be more involved in family court proceedings’.236 230 Daryl Higgins and Rae Kaspiew, ‘“Mind the Gap …”: Protecting Children in Family Law Cases’ (2008) 22 AJFL 235. 231 Brown et al., Violence in Families, above n 199, p 88. 232 ibid. 233 Fehlberg and Kelly, ‘Jurisdictional Overlaps’, above n 195; Kelly and Fehlberg, ‘Australia’s Fragmented Family Law System’, above n 195. 234 Fehlberg and Kelly, ‘Jurisdictional Overlaps’, above n 195. 235 Family Law Council, The Best Interests of the Child?, above n 214, [3.24]. 236 ALRC/NSWLRC, above n 192, p 923.

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3.7.6 Proposals for reform In 2002, the Family Law Council delivered a detailed final report on Family Law and Child Protection in 2002.237 The report recommended that the Federal Government establish a national child protection service to investigate and assist courts exercising FLA jurisdiction, reduce unnecessary duplication of resources, and promote a more cooperative approach between state and federal agencies. A further recommendation was that states ‘should be encouraged to amend their laws to make it possible for Children’s and Youth Courts to make orders concerning residence and contact as an outcome of child protection proceedings brought by the child protection authority’ and that the FLA be amended to make clear that such orders were not inconsistent with the FLA (a ‘one court principle’).238 Following the release of this report, the issue of jurisdictional overlap in child protection was referred to the Standing Committee of Attorneys-General and no further developments occurred. In 2010, the Australian Law Reform Commission and NSW Law Reform Commission’s Family Violence report recommendations were directed as ensuring greater involvement of state child welfare authorities in FLA proceedings and better information exchange.239 The Commissions also recommended, consistent with the Family Law Council’s ‘one court principle’ that ‘[t]he Family Law Act 1975 (Cth) should be amended to give children’s courts the same powers as magistrates courts’.240 Expanding the jurisdiction of children’s courts in this way would have the advantage that, where a case commences in a children’s court but raises parenting issues, a court apprised of the child protection concerns and having evidence from a child protection authority would be able to decide if it were more appropriate for a decision to be made under child protection legislation, or under the FLA. It would have jurisdiction to make both types of orders. However, the Commissions were also aware of complex ‘[i]ssues of resources, training and concerning the fundamental differences in the perspectives of children’s and family courts and in the legislation under which they act’ and suggested that ‘that the work proposed in WA, involving integration of family law and child protection issues, be used as an instructive pilot, to identify the benefits and challenges of this change in more detail and to inform future developments in other states and territories’.241 Most recently, as noted earlier, the 2012 amendments included new provisions aimed at improving the information about family violence and child abuse available to federal family law courts. However, as Fehlberg and Kelly’s earlier research suggested, the effectiveness of the new provisions is likely to depend on the development and maintenance of positive working relationships across the state–federal divide. Victoria provides an example of steps being taken to encourage this: from December 2012, pursuant to a joint initiative of the FCoA, the FCCoA and the Department of Human Services, the position of Child Protection Practice Leader (Family Law Liaison) was created for a fixed term of two years 237 Family Law Council, The Best Interests of the Child?, above n 214, [3.24]. 238 ibid., Recommendations 11 and 12, p 4. 239 ALRC/NSWLRC, Family Violence, above n 192, Recommendations 19-1, 19-2,19-3 and 19-5, pp 926, 928, 931. 240 ibid., Recommendation 19-4, p 928. 241 ibid., Recommendation 19-145, p 928.

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to assist judicial officers and court staff in cases where there are concerns about children’s safety and well-being and to provide case practice advice and leadership to Child Protection staff in relation to family law matters. In addition, a Senior Child Protection Practitioner is located three days a week at the Dandenong Registry.242

3.8 Conclusion The recurring theme throughout this and the previous chapter has been the fragmentation of Australian family law resulting from our federal system of government, and the resulting absence of a court in Australia that can resolve the issues that affect families on the breakdown of marriage or cohabiting relationships. Over time this has caused difficulty for many families, and while improvement has occurred some significant issues remain, most obviously (but not only) when state child protection and federal family laws intersect. The creation of a unified federal family law court would go a long way towards resolving these problems but would require either constitutional amendment or a referral of powers by the state parliaments to the Commonwealth. As noted in 2.4, changing the Constitution by referendum is difficult and referral of power in a federal system will never completely resolve issues of fragmentation. Another (albeit remote) possibility would be for the Federal Government to close down the federal family law courts and for state courts to exercise FLA jurisdiction, thus returning to the days before the establishment of the FCoA, with the associated disadvantages of not having a specialised court to hear family law matters, unless specialist state courts were created (as is the case in WA). Realistically, neither of these options is likely to be realised in the near future. Even if they were, the fact would remain that, given Australia’s federal system of government, a non-unified jurisdiction is to some extent inevitable due to the wide range of legal issues that have some link with ‘families’. As long as state and federal systems coexist, questions will continue to arise regarding the proper classification of issues as ‘family law’ issues or not, and thus within the ambit of one system or the other.243 Arguably, although many problems arise as a result of fragmentation, our federal system also facilitates the development of Australian family law in some positive ways, by providing for multiple sites for the development and working through of new initiatives. Relationship recognition (Chapter 4), family violence (Chapter 5), and financial disputes between de facto and domestic partners (Chapters 4, 13 and 15) are particular areas in which this has been evident. The opportunities for development of the law are thus sometimes enhanced within a federal system. Unfortunately, as this and the previous chapter have emphasised, the significant disadvantages that have also resulted from our federal system for family law as experienced by families appear to have outweighed the benefits.

242 Law Institute of Victoria, Practice Section, Family Law, Latest News, 6 December 2013. 243 See further Richard Ingleby, Family Law and Society, Butterworths, Sydney, 1993, p 94.

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4

The Legal Recognition of Family Relationships 4.1 Introduction 73 4.1.1 Diverse families and change over time  74 4.1.2 Contesting family and the role of law in family law  77 4.1.3 Underlying familial ideology  78 4.1.4 Indigenous extended families  79 4.1.5 The ‘eternal biological family’  83 4.1.6 Family as a source of economic support  86 4.2

Recognition of adult partnerships  87 4.2.1 De facto relationships  89 4.2.1.1 Definition of de facto relationship for FLA 91 4.2.1.2 Duration 92 4.2.2 Non-couple relationships  98 4.2.3 Marriage 100 4.2.3.1 Marriage and cultural diversity  100 4.2.3.2 Entering marriage  101 4.2.3.3 Nullity 106 4.2.4 Divorce 110

4.3

Who is a parent?  112 4.3.1 The ‘natural’ or ‘ordinary’ meaning  113 4.3.2 Presumptions, findings and declarations of parentage  114 4.3.3 Parentage testing  116 4.3.4 Parentage in assisted conception  118 4.3.4.1 According parental status 119 4.3.4.2 Severing the status of donors 120 4.3.5 Parentage in surrogacy  124 4.3.6 Functional or psychological parents and ‘any other person concerned with the care, welfare and development of a child’  126

4.4 Conclusion 128

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4.1 Introduction In this chapter we examine the legal recognition of family relationships against a background of diversity in the way people identify and live as families in Australia. We begin by providing an overview of social science material on family diversity in Australia and then go on to examine the contest between approaches for guiding relationship recognition in law. We first look at legal recognition of adult relationships, in particular examining the operation of new provisions in the Family Law Act 1975 (Cth) (FLA), which extended the operation of the Act to cover de facto partner financial (that is, property and maintenance) disputes on relationship breakdown from 1 March 2009. This is followed by an examination of the rules recognising the legal relationship between adults and children, in particular when they are not genetically related—such as in families formed through assisted conception utilising donor gametes or surrogacy or in instances of customary adoption. Throughout the chapter, we are particularly concerned about the extent to which diversity is recognised and respect for it is reflected in law. Legal developments, including recognition of same-sex relationships at state and, more recently, federal level, can be seen as inclusive changes that respond to progressive changes in societal attitudes. However, we note throughout that traditional familial ideology is still pervasive in ‘family law’, more so in some contexts than in others. That ideology is not only about the symbolic privileging of marriage; it is also about ‘a timeless, traditional nuclear, private, ideal family form, which may or may not have existed historically in a majority of households, if at all, and certainly exists only in a shrinking number today’.1 In recent times, familial ideology privileges a very specific extension of the nuclear family: the ‘eternal biological family’.2 We also reflect on the familial ideology underpinning the social policy goals behind relationship recognition, including the extension and adaptation of the traditional notion of the family as a ‘private’ place of economic self-sufficiency, and the capacity of this to offer cost savings to governments and taxpayers. This is a chapter about how ideas of family have practical relevance to families and to those advising them. The lawyer who is approached by a woman who had a decade-long relationship with a married man with whom she lived three days per week, a parent who has no genetic link with the child they have raised since birth or a sperm donor who does have a genetic link but has no legal relationship must work with ideas about families and the law’s role in relation to them in crafting a response that engages statutory definitions and developing case law. By drawing together empirical evidence and theory, and using case studies throughout to demonstrate the themes we identify, we aim to introduce readers to these fundamentally important and challenging ideas underlying family law.

1 Alison Diduck and Felicity Kaganas, Family Law, Gender and the State, 2nd edn, Hart Publishing, Oxford, 2006, p 10. 2 This term was first coined by Selma Sevenhuijsen, ‘Fatherhood and the Political Theory of Rights: Theoretical Perspectives of Feminism’ (1986) 14 International Journal of the Sociology of Law 329, 335.

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4.1.1 Diverse families and change over time Australian families come in many shapes and sizes. Family forms, ideas about family, and legal definitions of family relationships have changed significantly in recent decades.3 In this section we look at some empirical evidence of the diversity of family forms. The 2011 Census indicates that nearly three-quarters of all Australian households are ‘family’ households (72 per cent).4 Yet within this descriptor there is great variation, as is evidenced by the following figures: • Couple families with dependent children make up 36 per cent of Australian families. • One-parent families with dependent children make up 9.9 per cent of Australian families. • Couple-only families make up 47 per cent of families Australia wide. • Most one-parent families with dependent children are formed through relationship dissolution, and the majority of these are headed by mothers (81 per cent in 2012).5 These figures show a very different picture of Australian families from the 1976 Census, in which couple families with dependent children predominated (representing 48 per cent of all families), while only 28 per cent were couple-only families.6 Households with samesex couples were first counted in 1996, and their proportion of overall couple households increased from 0.3 per cent that year to 0.7 per cent in 2011.7 The Australian Bureau of Statistics (ABS) noted that change over this 15-year period may reflect an increasing willingness for such couples to disclose their relationship. It may also be the case that samesex partners are now more prepared to form a couple household, rather than to maintain separate homes.8 There is also evidence of changing attitudes to marriage and marriage practices.9 The majority of couples registering their marriage in 2011 had cohabited prior to marriage (78.2 per cent).10 The religious significance of marriage also appears to be declining, and in the last 20 years marriages have been increasingly performed by civil celebrants. Civil marriages

3 David de Vaus, Diversity and Change in Australian Families: Statistical Profiles, Australian Institute of Family Studies, Melbourne, 2004, p 4. 4 Australian Bureau of Statistics, 2001.0, Census of Population and Housing: Basic Community Profile, 2011 Third Release, 28 March 2013, . 5 Australian Bureau of Statistics, 6224.0.55.001, Labour Force, Australia: Labour Force Status and Other Characteristics of Families, June 2012, 1 May 2013, . 6 Australian Institute of Family Studies, Family Facts and Figures: Australian Families, 19 December 2013, . 7 Australian Bureau of Statistics, Same-Sex Couple Families: 2071.0, Reflecting a Nation: Stories from the 2011 Census, 28 June 2012, . 8 Australian Bureau of Statistics, Same-Sex Couples: 4102.0, Australian Social Trends, July 2013, 4 March 2014, . See also Deborah  Dempsey, ‘Same-sex Parented Families in Australia’ CFCA Paper 18, 2013. 9 See Relationships Australia and Credit Union Australia, Issues and Concerns for Australian Relationships Today: Relationships Indicators Survey 2011, Relationships Australia, 2011 . 10 Australian Bureau of Statistics, above, n 7.

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have outnumbered religious ceremonies since 1999 and, by 2011, 70.1  per  cent of all marriages were performed by civil celebrants.11 Interestingly, while divorce rates have increased, so too has the average length of marriages.12 In 2012, the crude divorce rate in Australia was 2.2 divorces per 1000 estimated resident population.13 Between 1985 and 2002, the likelihood of a marriage ending in divorce increased from 28 per cent to 33 per cent.14 However the median duration of marriage to divorce increased from 10.3 years in 1991 to 12.2 years recorded in 2012.15 The proportion of children born outside marriage into diverse family forms and through non-traditional means has also increased.16 In 2011, Australia’s total fertility rate (TFR) was 1.88 babies per woman. Since 1976, the total fertility rate for Australia has been below replacement level. That is, the average number of babies born to a woman throughout her reproductive life (measured by the TFR) has been insufficient to replace herself and her partner. The TFR reached a low of 1.73 babies per woman in 2001 before increasing to a 30-year high of 1.96 babies per woman in 2008. Of all births registered in 2011, 66 per cent of births were to parents who were married. In 2011 around three per cent of births arose as a result of assisted reproductive technology from licensed Australian clinics.17 During 2010–11 there were 384 finalised adoptions across Australia—the lowest annual number on record.18 Differences in family form can correspond with membership of, or identification with, particular cultural, religious and other groups. The Family Law Council notes that, Australia has one of the most ethnically diverse populations in the world, with a long history of nation-building through immigration. Around 27 per cent of the present estimated resident population of Australia (6 million people) were born overseas and approximately 16 per cent of the population speaks a language other than English at home. In the coming years, Australia’s population is likely to remain strongly

11 Australian Bureau of Statistics, Marriage Celebrants: 3310.0, Marriages and Divorces, Australia, 2011, 26 November 2013, Figure 1.9 . 12 Australian Bureau of Statistics, 3310.0—Marriages and Divorces, Australia, 2012, 27 November 2013, . 13 ibid., . 14 Australian Bureau of Statistics, Lifetime Marriage and Divorce Trends: 4102.0—Australian Social Trends, 2007, 23 July2008 . 15 Australian Bureau of Statistics, above n 12. 16 Lixia Qu and Ruth Weston, Australian Households and Families: Australian Family Trends No. 4, Australian Institute of Family Studies, Melbourne, 2013; Ruth Weston, Lixia Qu and Jennifer Baxter, Australian Families with Children and Adolescents: Australian Family Trends No. 5, Australian Institute of Family Studies, 2013. 17 Alan Macaldowie, Yueping Wang, Georgina Chambers and Elizabeth Sullivan, Assisted Reproductive Technology in Australia and New Zealand 2011, National Perinatal Epidemiology and Statistics Unit, University of NSW, Randwick NSW, 2013, . 18 Australian Institute of Health and Welfare, Australian Government, Australia’s Health 2010–11, Report No. 52, Child Welfare Series, 2012, .

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multicultural, multi-faith and multi-lingual, with migration accounting for more than half of our annual population growth.19

The extent to which the notion of ‘family’ within particular groups is based upon legal (or de jure) marriages as distinct from informal or de facto relationships may vary. In some religions and cultures sexual relationships outside of marriage continue to be condemned. Further, marriage itself is not a homogeneous category. To take just one important variable, some cultures and religions adopt a monogamous model of marriage (that is, marriage is between one man and one woman), and others practise polygamy (marriage of one man to more than one woman) and/or polyandry (marriage of one woman to more than one man). Religious affiliation not only affects the importance of marriage in family, but also relates to divorce rates. Those with no religious affiliation are the most likely to be currently divorced.20 Another key source of diversity of family values relates to the importance placed on family (group, collective) interests over individual interests. A collectivist view is reflected to a greater or lesser extent in many cultures in Australia, including in traditional Indigenous cultures.21 While it is vital not to overgeneralise because of the considerable diversity within Indigenous cultures, many accounts tell of this collectivism. For example, Aileen MoretonRobinson writes of the narratives of Indigenous women, which ‘express collective relations between a number of Indigenous people transcending several generations’: These relations are underpinned by connections with their country and the spirit world. In each of the life writings all the Indigenous people are related by descent, country, place or shared experiences. Such relationality means that in their relationships with other Indigenous women, men and children they are inclusive rather than exclusive. That is, personal and intimate relations are extended beyond immediate kin and the boundaries between Indigenous women and other Indigenous people are negotiated on this basis. In Indigenous cultural domains relationality means that one experiences the self as part of others and that others are part of the self; this is learnt through reciprocity, obligation, shared experiences, coexistence, cooperation and social memory.22

It is not surprising, then, that many of the statistics which we have looked at for the Australian community as a whole are different for indigenous families as compared with non-indigenous families. For example, more indigenous families than non-indigenous families consist of parents who are cohabiting (rather than married); there is also a higher percentage of lone parent families and multifamily and extended households than in nonindigenous families.23

19 Family Law Council, Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds: A Report to the Attorney-General Prepared by the Family Law Council, February 2012, Commonwealth of Australia, Canberra, 2012, p iv, . 20 David DeVaus, Diversity and Change in Australian Families: Statistical Profiles, Australian Institute of Family Studies, Melbourne, 2004, p 219. 21 See the essays in Robyn Hartley (ed.), Families and Cultural Diversity in Australia, Allen & Unwin and AIFS, Scoresby, 1995. 22 Aileen Moreton-Robinson, Talkin’ Up to the White Woman, University of Queensland Press, St Lucia, 2000, p 16. 23 Eleanor Bourke and Colin Bourke, ‘Aboriginal Families in Australia’ in Robyn Hartley (ed.), above n 21, p 50.

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Various reports of the Australian Law Reform Commission have made recommendations for principles and approaches to cultural diversity that go further than simply formal equality.24 During the 1980s, increasing recognition of Australian cultural and religious diversity came to be encompassed by the term ‘multiculturalism’. In 1992 the Australian Law Reform Commission explored the consequences of multiculturalism for the legal system, and developed some basic principles to guide its deliberations: • • •

•

Laws should apply equally to all without discrimination; there should not be different rules for different people on the ground that they belong to a particular ethnic group. Within the limits necessary in a free and democratic society, each individual should be free to choose, to maintain and to express his or her cultural or religious values. The law should take account of a person’s individual cultural experience, values and attitudes when it is relevant to do so, is not discriminatory and does not jeopardise the rights of others. Equality before the law and equal access to the law require the removal of communication barriers, whether arising from language or from understanding.25

The qualification that culture should only be taken into account under the law when it ‘is not discriminatory and does not jeopardise the rights of others’ indicates a respect for diverse family forms, rather than giving effect to cultural or religious views that would condemn particular family forms.26

4.1.2 Contesting family and the role of law in family law American family law scholar Grace Blumberg argues that during the last 30 years the legal regulation of non-marital families and the recognition of same-sex relationships are ‘distinguishable but closely related’ trends across most Western nations.27 Millbank has argued that ‘functional family’ claims made through both legal and sociological lenses have been an important contributor to these trends.28 The ‘functional family’ model accords recognition and legal protections to relationships that exhibit key criteria of interdependence and commitment, regardless of formal status such as marriage. In the context of relationships with children, functional family models prioritise caregiving by 24 Also in the area of gender equality, see Australian Law Reform Commission, Equality before the Law: Women’s Equality, Report No. 69, 1994, part 1, which recommended the adoption of a model of equality based on a subordination approach. See Regina Graycar and Jenny Morgan, The Hidden Gender of Law, 2nd edn, Federation Press, Sydney, 2002, p 32. 25 Australian Law Reform Commission, Multiculturalism and the Law, Report No. 57, Australian Law Reform Commission, Canberra, 1992, [1.29], . The Family Court has a National Cultural Diversity Plan 2004–2006, Family Court of Australia, Canberra, 2004, . The Guiding Principles underpinning the plan include ‘[a] commitment to identifying and addressing barriers that impede equal access to Court services’; ‘[a] commitment to equity in all of the Court’s dealings with clients’; and ‘[a] commitment to ensuring that information about the Court is widely available across the community in suitable formats and delivered in culturally appropriate ways’: p 3. 26 ibid., [1.29]. 27 Grace Blumberg, ‘Legal Recognition of Same-Sex Conjugal Relationships: The 2003 California Domestic Partner Rights and Responsibilities Act in Comparative Civil Rights and Family Law Perspective’ (2004) 51 UCLA Law Review 1555, 1577. 28 Jenni Millbank, ‘The Role of Functional Family in Same-Sex Family Recognition Trends’ (2008) 20 Child and Family Law Quarterly 155.

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looking to adults who act as, and are understood by children to be, parents, irrespective of biological connection.29 By positing law’s role as reflecting and assisting actual families’ experiences and needs, rather than as encouraging or mandating a particular family form, functional family approaches run directly counter to normative approaches to law such as the so-called ‘channelling’ purpose of family law. Paula Ettelbrick has surmised: The lesson of the last two decades shows that families are messy, varied, emotional, aggravating and necessary groupings of people that allow each human being to  care and be cared for … They do not fit into one neat little box, and, in fact, due to  many social changes over the last 30 or more years are not as easily channeled into those boxes as they might have been in prior generations … this … must guide us in changing policies to better represent the reality of family life.30

The ‘channelling function’ of law has been expressed as one that ‘supports social institutions which are thought to serve desirable ends,’31 such as marriage, by ‘channelling’ people towards them through normative ‘messages’ in legislation and inducements for those who comply (and sometimes with punitive consequences for those who do not).32 Some scholars argue that, rather than actively ‘channelling’ or reactively ‘reflecting’, family law both constitutes and is constituted by family norms and practices in a manner that is often hard to disentangle.33

4.1.3 Underlying familial ideology The following sections discuss the influence of ‘nuclear norms’ and ideas of the importance of genetic relatedness in families in the contexts of Indigenous and same-sex families. The insistence on the ‘eternal biological family’ may, as Helen Rhoades has pointed out, operate to exclude and disadvantage many families.34 Referring to reforms to the provisions on children in the FLA, which came into effect in 1996 and which embodied this increasing focus on the ‘eternal biological family’, Rhoades wrote: the current narrow concept of parental responsibility as something that should be shared equally between ‘mum’ and ‘dad’, even when these people live apart, is out of step with the fluid, varied and dispersed caregiving arrangements for children in many post-separation families. Orders for shared parental responsibility will have a very different meaning for a mother who has been married to the child’s father for 29 However, others have argued that there is not necessarily a direct translation of sociological findings into legal models: see Robert Leckey, ‘Law Reform, Lesbian Parenting, and the Reflective Claim’ (2011) 20 Social & Legal Studies 331. 30 Paula Ettelbrick ‘Domestic Partnership, Civil Unions or Marriage: One Size Does Not Fit All’ (2001) 64 Albany Law Review 905, 914. 31 Carl Schneider, ‘The Channelling Function in Family Law’ (1992) 20 Hofstra Law Review 495, 498. 32 See Anne Barlow and Grace James, ‘Regulating Marriage and Cohabitation in 21st Century Britain’ (2004) 67 Modern Law Review 143. 33 John Dewar, ‘Family, Law and Theory’ (1996) 16 Oxford Journal of Legal Studies 725, 733; Richard Collier, Masculinity, Law and Family, 2nd edn, Routledge, New York, 2003. 34 Helen Rhoades, ‘Family Practices and Family Law: A Widening Gap?’, paper presented at the 10th National Family Law Conference conducted by the Family Law Section of the Law Council of Australia, Melbourne, 16–20 March 2002, p 8.

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many years than for a mother who has never cohabited with the father, or a mother who co-parents with her lesbian partner and has never had an intimate relationship with the child’s father.

The drafting of the original FLA reflects dominant familial ideology of ‘family’ as comprising a mother, father, and their biological children through inclusion in the original objects of the Act in section 43 of ‘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’. This object remained unchanged when the Act was broadened in 2008 to include unmarried heterosexual and same-sex couples in the property and maintenance regime. This provision is rarely referred to in family law courts judgments. However in the 2012 case of Oldfield, concerning an application by grandparents, Federal Magistrate Coker quoted the provision in full and stated that in a matter in which the parents were still together section 43 should be ‘the starting point’ in relation to any determination: It is noteworthy that there is reference to the term, ‘family’, and in section 4 of the Act there is no specific definition of what constitutes a family … I make reference specifically to this aspect of the matter, because the reference to the family unit (what is sometimes described as the nuclear family) is, in my assessment, the unit of society comprised of a man and a woman and the children of that relationship, whether they be adoptive children or the biological children of the parties.35

Yet since the Act commenced in 1975 with section 43 as an object there have been unforseen and far-reaching developments in the legal recognition of non-nuclear families. These include the recognition in the FLA of non-genetic parents in families formed through assisted conception (originally husbands of women who conceived with donor sperm but later including de facto male partners and most recently female partners: section 60HB(1)), intended parents in surrogacy families, who may, or may not, be genetic parents (section 60HB) and de facto partners of an adoptive parent who may be either sex, such that neither parent is genetically related to the child (section 60HA). Thus there appears to be a tension between traditional notions of family that were intended with the original provision and the enlarged jurisdiction of the court over broader family forms.

4.1.4 Indigenous extended families The Family Law Council has noted: The question of the interaction between Aboriginal and Torres Strait Islander peoples and the family law system raises complex issues that must be understood in the context of past policies, including policies that relate to the forced removal of children and forced resettlement of communities and contemporary patterns of engagement with criminal justice and child protection systems. As well as the continuing disadvantage experienced by many Aboriginal and Torres Strait Islander families, efforts to improve culturally responsive service delivery must also take

35 Oldfield & Oldfield [2012] FMCAfam 22, [110], quoted with approval in Danes & Danes [2013] FMCAfam 281.

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account of the diversity of Aboriginal and Torres Strait Islander peoples and the important ways in which family structures and practices may differ from those of other clients of the family law system.36

Frances Morphy points out that legal definitions of family relationships that ‘take the nuclear family as their starting point’ exclude Indigenous families because ‘the nuclear family structure is not a “natural” outcome of Aboriginal Australian kinship systems.’37 In parenting disputes there is a danger that Indigenous parenting practices will be misunderstood or undervalued. Rae Kaspiew, writing about the most recent report of the Family Law Council on Indigenous people and the family law system,38 notes that: Aboriginal and Torres Strait Islander families involve structures that are distinct from those of non-Indigenous families, although familial terms such as ‘mother’, ‘grandmother’ and ‘uncle’ may be used. Responsibility for children may also be broader than biological parents, with multiple caregivers drawn from family or community members. For example, the review by the Warrki Jarrinjaku Aboriginal Child Rearing Strategy Project Team indicates that ‘amongst the Central Australian Aboriginal language groups, the biological mother’s sisters are also referred to as the child’s mothers. The mother’s sisters have an obligation to support her to carry out her daily roles and responsibilities. This may extend to breastfeeding if required and possible. If the biological mother is absent for a period, it is the duty of her sisters or mother to take over the responsibility for the children’ … This practice remains widespread, with ‘many Aboriginal people … “grown up” by members of the family other than their biological [parents]’.39

A number of cases demonstrate the difficulty of applying Anglo-Australian legal concepts of family to extended care arrangements. In 1997 Re CP40 concerned a f­ our-year-old boy (CP) who was the child of a Tiwi woman (AP). CP had been cared for since he was a baby by a woman (FOB) who had been born on Thursday Island (in the Torres Strait). CP  had lived in Darwin with FOB since he was six months old. The question for the court was whether CP should return to the Tiwi Islands permanently to be cared for by his extended maternal and paternal family, or continue to live with FOB in Darwin, with significant contact with his extended family in the Tiwi Islands. All the people involved in this case were Indigenous Australians, but the case highlights the huge diversity within that category. The trial judge, Graham J, made an order in favour of FOB and this decision was appealed to the Full Court, which upheld the appeal and remitted the matter for retrial. There is no 36 Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients: A Report to the Attorney-General Prepared by the Family Law Council, Commonwealth of Australia, Canberra, 2012, p 1, . 37 Frances Morphy, ‘Lost in Translation?: Remote Indigenous Households and Definitions of the Family’ (2006) 73  Family Matters 23. See also Eleanor Bourke and Colin Bourke, ‘Aboriginal Families in Australia’ in Robyn Hartley (ed.), Families and Cultural Diversity in Australia, Allen & Unwin and AIFS, 1995, p 48. 38 Family Law Council, above n 36. 39 Rae Kaspiew, ‘Aboriginal and Torres Strait Islander Peoples and the Family Law System: A Report by the Family Law Council’ (2012) 26 Australian Journal of Family Law 254, 259. 40 Re CP (1997) 21 Fam LR 486; [1997] FamCA 10.

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public record of the outcome of the proceedings. The orders sought on appeal included that the child live in the Tiwi Islands with the women known as his Aboriginal mothers, and that responsibility for him ‘be shared by his biological mother AP and his other mothers, namely NP, AW, RB, and his maternal grandmother, AP’s mother.’41 Thus, the orders being sought reflected more open conceptions of ‘family’ in Indigenous communities: CP did not have one mother, but many. The ground on which the appeal was successful was that the trial judge had failed to give sufficient and appropriate attention to the cultural differences between Thursday Island (Torres Strait) and Tiwi culture, and hence to the appropriateness of placing the boy outside of his Tiwi culture.42 In particular, ‘the idea of adoption outside the family or group is a repugnant concept from the point of view of the Tiwi Islanders, whereas on the other, it is an accepted practice in the culture of the Torres Strait Islanders.’43 Although not a basis for appeal in the Full Court, the trial judge also seemed to have been influenced by concern about the failure to specify a particular person or persons who would have care of the child.44 In contrast, the Full Court (Nicholson CJ, Ellis and Moore JJ) embraced the idea that a child’s family could be constituted in this way but noted the difficulty of making orders in favour of a group of kin: By way of concluding our reasons, we would also wish to observe that this case has highlighted difficulties in the applicability of the Family Law Act to cultural systems of family care which, like the Tiwi way, contemplate circumstances where the child will live and be cared for within a kin network. The relevant provisions of the legislation proceed from an Anglo-European notion of parental responsibility which vests such responsibility exclusively in the biological or adoptive parents of a child … [Their Honours referred to the relevant legislative provisions and continued.] It thus appears that the Act proceeds on the basis that orders will be made in favour of identified persons (who will usually be parties to the proceedings or have indicated their consent to orders being made in their favour). As the present case illustrates, the fluidity of indigenous care arrangements do not lend themselves to such a priori specificity and may give rise, as was again evident in this case, to criticisms about the uncertainty of arrangements for a child, which, depending on the facts found in a case, may be unwarranted. It appears to us that the legislative recognition of indigenous culture and heritage in s  68F may need to be complemented by provisions which take account of the kinship care systems of Aboriginal and Torres Strait Islander peoples.45

41 Re CP (1997) 21 Fam LR 486, 495. 42 ibid., 505. 43 ibid., 503. At the time Re CP was decided, the relevant factor was ‘the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders)’ in what was then s 68F(2)(f ). As we see in Chapter 9, since 2006 this is now a separate factor: the child’s right to enjoy their Aboriginal or Torres Strait Islander culture (s 60CC(3)(h)). 44 Re CP (1997) 21 Fam LR 486, 492. 45 ibid., 505–6.

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Re CP demonstrates, as the Full Court pointed out, that underlying the legislation concerning parenting orders is a particular familial ideology, reflecting particular cultural expectations that do not accommodate collective care arrangements. The Pathways Report recommended that the FLA be amended so that it ‘acknowledges unique kinship obligations and child-rearing practices of indigenous culture’.46 This recommendation was acted upon in the 2006 reforms, both in the principles and with the insertion of a new separate provision, which requires that ‘the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture’ (section 61F).47 It remains the case that, in the absence of a court order, parental responsibility rests with the biological or adoptive parents of the child, and that ‘the Act proceeds on the basis that orders will be made in favour of identified persons’.48 In 2010 the Full Court ‘assumed’ that section 61F did not render a carer of a child under traditional practices a ‘parent’ for the purposes of the FLA; thus ‘regard’ for traditional practices does not appear to translate into legal recognition. However, it left this question open for later consideration as it was not squarely raised in that case: Importantly, for present purposes, we accept that the word ‘parent’, when used in relation to a child, does not include a person who may be treated as a parent of that child by the customs of people of Aboriginal or Torres Strait Islander background. Whether this assumption can withstand critical analysis is a matter best left to an occasion when the Court has the benefit of argument on the possible application of s 61F.49

Donnell & Dovey concerned the competing applications of a Torres Strait Islander father and an adult Aboriginal sister for the care of a child whose mother had died. The Full Court (Warnick, Thackray and O’Ryan JJ) held that in every case concerning Indigenous children the Court should take judicial notice of the fact that there are marked differences between Indigenous and non-Indigenous people relating to concepts of family. The Court emphasised that this was not to say that the practices and beliefs of Indigenous people are uniform.50 The Court supported the proposition that a trial judge would be expected to have a ‘basic level of understanding of indigenous culture’ at least to the extent of what can be found in ‘readily accessible public information’ addressing Indigenous issues.51 The Court also held that judicial officers can also be expected to be familiar with ‘the reported decisions of the Full Court dealing with indigenous children’ as well as policy considerations that have motivated family law reform in relation to Indigenous children.52 Significantly, the Full Court included foundational research concerning Indigenous child removal and the Bringing them Home Report of the National Inquiry into the Separation of Aboriginal and 46 Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, Commonwealth of Australia, Canberra,July 2001, Recommendation 22, p 91, . 47 For background to these reforms see Family Law Council, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices, Commonwealth of Australia, Canberra, 2004. 48 Re CP (1997) 21 Fam LR 486, 506. 49 Donnell & Dovey (2010) 42 Fam LR 559; [2010] FamCAFC 15, [93]. 50 ibid., [321]. 51 ibid., [322]. 52 ibid., [323].

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Torres Strait Islander Children from Their Families among the matters about which a court should take judicial notice.53 The Full Court also supported the proposition that evidence about the cultural and kinship traditions of a particular Indigenous community ‘need not necessarily be given by an anthropologist, nor need it be the subject of “well recognised peer reviewed research”’. Their Honours accepted ‘that the best evidence may be that given, if it is available, by an elder or such other person within the indigenous community who is accepted by the community as being able to speak with authority on its customs’.54 Torres Strait Islanders practise a distinct and widespread method of customary adoption, known as ‘kupai omasker’, which involves gifting children to relatives and close friends who are childless. This is understood as a permanent change in the family relationship akin to non-Indigenous adoption, but is not recognised in Australian law as such. This was discussed by Watts J in the recent case of Beck &Anor & Whitby & Anor in which he made parental responsibility orders for the receiving parents in such an arrangement by consent.55 His Honour made the orders sought but noted that the giving parents remained on the birth certificate as parents. Watts J stated: There is currently no power under the FLA to make any order that would rectify the situation. Notwithstanding the orders I make today, under the FLA the Respondents remain the child’s parents and the Applicants do not become the child’s parents. The difficulty with the birth certificate is an example of a practical problem that flows from that lack of formal recognition of the Applicants as the parents of the child. The problem has been discussed for more than 25 years in various significant Government reports. The Federal Government has power to amend the FLA to enable a court to declare persons in the positions of the Applicants in this case as parents. Alternatively the States have power to amend State legislation to allow full recognition of traditional Torres Strait Islander child rearing practices. Maybe one day the law will be changed.56

Arguably this scenario would present the ideal opportunity required for the court to consider whether s 61F could be the basis for a reconsideration of the meaning of ‘parent’ under the FLA.

4.1.5 The ‘eternal biological family’ The tension between functional and biological notions of family is also illustrated by disputes between known sperm donors and lesbian-led families. Unprecedented formal equality for, and social acceptance of, same-sex family forms runs against the other pervasive shift in family law and policy—‘fathers’ rights’ movements and the rise of (the norm of ) the ‘eternal biological family’. The notion that genetic parents are ‘real’ parents may run counter to, and indeed render redundant, the focus on the caring work of family that is the core of 53 ibid., [325]. 54 ibid., [228]. See also Hort & Verran [2009] FamCAFC 214. 55 Beck & Anor & Whitby & Anor [2012] FamCA 129. The Court has facilitated this practice through such orders since the 1990s: see Family Law Council, above n 47, p 20. 56 ibid., [75].

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the functional family model, through ‘adding’ fathers who were never part of the household in which the child is being raised.57 In Re Patrick,58 the mother and her female partner (who was described in the judgment as the ‘co-parent’)59 had a child through informal assisted conception with a known donor. This occurred prior to legislative changes at both state and federal level according the second female parent legal status in such circumstances (discussed below at 4.3.4). In granting the known donor’s application for increased contact with the child, Guest J emphasised the importance of protecting that relationship, despite finding that legally he was not a parent under the FLA (and therefore also not liable for child support). At the conclusion of his reasons, Guest J commented: In my view, Patrick’s ‘family’ is comprised of the mother and the co-parent. It is a homo-nuclear family. They are his parents. That which constitutes a ‘family’ has been the subject of substantial debate particularly relevant to the gay and lesbian community … It appears to me that a ‘family’ being limited to the traditional heteronuclear family does not now reflect the reality of the various family forms within modern society. I see no reason why ’family’ should not also include a homo-nuclear family as part of the diverse configuration of families reflected in our community … The term ‘family’ has a flexible and wide meaning. It is not one fixed in time and is not a term of art. It necessarily and broadly encompasses a description of a unit which has ‘familial characteristics’. Not all families function in the same way. Nevertheless, they enjoy common characteristics such as those demonstrated by the applicants. Theirs is not of a casual or transitory nature but one that has embraced exclusivity and permanency. They are emotionally and financially inter-dependent and I have no doubt, share common interests, activities and companionship. Their biological and psychological relationship to and mutual care of Patrick makes it so much more obvious. In my view it would stultify the necessary progress of family law in this country if society were not to recognise the applicants as a ‘family’ when they offer that which is consistent and parallel with heterosexual families, save for the obviousness of being a same-sex couple. The issue of their homosexuality is, in my view, irrelevant.60

These passages suggest that the law recognises the flexible reworking of notions of family.61 The judgment does, however, demonstrate the privileging of ‘natural’ biological fatherhood. Guest J concluded that: From what I have both heard and read, it is doubtless true that children can be happily raised within a homo-nuclear family, but the difference here is that the 57 Fiona Kelly, ‘Nuclear Norms or Fluid Families? Incorporating Lesbian and Gay Parents and Their Children into Canadian Family Law’ (2004) 21 Canadian Journal of Family Law 133; Shelley Gavigan, ‘Equal Families, Equal Parents, Equal Spouses, Equal Marriage: The Case of the Missing Patriarch’ (2006) 33 Supreme Court Law Review 317. 58 Re Patrick [2002] FamCA 193. 59 For a critique of the use of the terms ‘co-parent’ and ‘father’ by the judge in this case, see Fiona Kelly, ‘Redefining Parenthood and Lesbian Families in the Family Court: The Case of Re Patrick’ (2002) 16 Australian Journal of Family Law 204. 60 Re Patrick [2002] FamCA 193,[323]–[325]. 61 Michael Gilding, The Making and Breaking of the Australian Family, Allen & Unwin, Sydney, 1991, pp 1–8; see also R & J & Anor [2006] FamCA 1398.

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father desires and has always desired to play an active and fatherly role in the life of his son.62

Deborah Dempsey suggested that, in making his decision, Guest J chose the outcome: that best corresponded to the common sense idea of what a father is. That is, a father should be a man with whom a child has frequent contact in which the status of the biological tie for the social relationship is made apparent, rather than a man who exists primarily for the child as a potential source of knowledge about his origins.63

Dempsey refers also to language of Guest J that assumes a ‘natural order of things’64 in which fathers are involved in ‘a natural, ordinary, parental and fatherly manner’ in their children’s lives.65 Since that time there have been a number of cases in which known sperm donors, who have had varying levels of involvement with the child, have successfully brought claims for time, or increased time, to the Family Court. Commenting on these cases, in Australia and elsewhere, Millbank has noted that: The mothers’ view that there is a vital difference in their family between a ‘biological father’ and ‘a parent’ is a common experience in the context of lesbian parenting. Yet this perspective has been met with frank bewilderment or outright disdain by judges in donor versus mother disputes. Functional family is invisible in court in this context; because it is same-gendered parenting, the addition of a male parent is not seen to take away anything from the family (for example by intruding on their autonomy or invalidating their family form), it only adds to it. The mothers are viewed as inexplicably trying to deny their child something good, something special and something that their family lacks: a daddy. The mothers’ behaviour in resisting a third parent in their family is therefore selfish, non-child centred and weird; while the donor/father’s behaviour in trying to join or control that family is natural, understandable, and loving.66

As mentioned earlier, section 43 has been invoked in a case involving  an  intact relationship  between heterosexual parents and an application by a third party (a  grandparent).67 However, it has never been referred to in cases concerning samesex parents who comprise the caregiving unit. There have also been some indications of reluctance to apply the extension of parental status accorded in the 2008 amendments to second female parents in lesbian-led families (discussed below at 4.3.4.2). A contrary view has been put by other commentators, who argue that the extension of legal recognition to the female partner of a woman who gives birth through assisted reproduction is in itself a conservative move as it replicates the ‘sexual family’ of law or a homo-nuclear ideal in limiting the family to only two parents without the possibility of 62 Re Patrick [2002] FamCA 193 [78]. 63 Deborah Dempsey, ‘Donor Father or Parent? Conceiving Paternity in the Australian Family Court’ (2004) 18 International Journal of Law, Policy and the Family 76, 90. 64 ibid. 65 Re Patrick [2002] FamCA 193 [270]. 66 Jenni Millbank, ‘The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family’ (2008) 22 International Journal of Law, Policy and the Family 149. 67 See Millbank, above n 28.

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more.68 There are some calls for reform to allow the ability to recognise three legal parents in some circumstances of assisted conception, as is now possible in British Columbia, Canada,69 and/or to allow for the recording of a genetic parent on a birth certificate in addition to the legal parents.70 However, the extent to which this ‘multi-parent’ approach reflects a transformation of family norms is debated, as it also arguably continues to reinscribe a gendered and genetically centred approach to parenthood through the (re)inclusion of fathers in families where the parenting work continues to be mainly undertaken by women.71

4.1.6 Family as A source of economic support It is important to appreciate that, historically, the policy rationale for relationship recognition outside of marriage was the need to protect the interests of vulnerable people, and to ensure a source of support other than the state.72 This agenda also informs the child support system (Child Support Scheme, CSS), which provides a privatised source of financial support for the child under the CSS (Chapter 11). The discourses of ‘choice’ and ‘equality’ are prominent in relationship recognition claims by same-sex couples and families. Yet it is important to recollect that de facto relationship status for some purposes is ascribed based on objective criteria and may not reflect how the participants subjectively see their relationship, nor the legal consequences that they would personally wish to follow. The extension of de facto relationship status to same-sex couples in all federal law in 2008/200973 was objected to by some as it had, for example, the consequence of reducing some social security benefits that are available only to individuals rather than couples, or at a lower rate to couples. While this has exactly the same effect as for heterosexual cohabiting couples, it may have had a disproportionately harsh impact on older same-sex couples. This is because some older same-sex couples may have organised their finances individually through the course of a long relationship precisely on the basis that their relationship was not legally recognised, but who were now in old age being treated in law as a single economic unit.74

68 Julie McCandless and Sally Sheldon, ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form’ (2010) 73 Modern Law Review 175. 69 ibid. 70 See Olivia Rundle and Samantha Hardy, ‘Australian Birth Certificates: The Best Interests of No One at All’ (2012) 26 Australian Journal of Family Law 117. 71 Fiona Kelly, above n 57: Aleardo Zanghellini, ‘A v B and C [2012] EWCA Civ 285: Heteronormativity, PolyParenting, and the Homo-Nuclear Family’ (2012) 24 Child and Family Law Quarterly 475; Millbank, ‘The Limits of Functional Family’, above n 66. 72 Stephen Parker, Informal Marriage, Cohabitation and the Law, 1750–1989, St Martin’s Press, New York, 1990; John Dewar with Stephen Parker, Law and the Family, 2nd edn, LexisNexis, 1992, p 66: ‘This explains the creation of an informal marriage status in law which has as its primary aim the construction of a set of economic relationships clearly demarcated from, and thereby reducing the burden on, the state’. 73 Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth). Though note, amendments ss 60H(1) and 60HB (concerning children of de facto relationships) were operative from November 2008 while those concerning property and maintenance came into effect on 1 March 2009. 74 Stephanie Peatling, ‘Same-Sex Couples Wary of Changes to Benefits’, Sydney Morning Herald (online), 20 June 2009, .

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4.2 Recognition of adult partnerships Despite the common view that marriage is a religious institution, the requirements for, and consequences of, marriage are entirely secular in the sense that they are set by law: religious ceremonies are provided for by law but not required, nor do religious customs have any impact on the legal status of the marriage. In Attorney-General for the Commonwealth v Kevin & Jennifer the Full Court of the Family Court of Australia (FCoA) (Nicholson, Ellis and Brown JJ) stated that: we think it is strongly arguable that marriage is now a secularised institution in our society. There are no longer any requirements for a religious ceremony associated with marriage, and its occurrence, formalities and registration are purely secular. It is apparent that many non-Christians enter into marriage in our community pursuant to the provisions of the Marriage Act. In such circumstances, we agree with the trial judge that its historical Christian origins are not relevant or helpful in the determination of the present case.75

Marriage as the historical prerequisite for special treatment under the law is reflected in the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution), which, as we saw in Chapter 2, does not use the term ‘family’ but designates ‘marriage’, ‘divorce’ and ‘matrimonial causes’ as heads of Commonwealth legislative power. As a result, the notion of ‘family’ underpinning the FLA when it was enacted in 1975 was based around marriage and the resolution of parenting and financial disputes between spouses on marital breakdown. The lack of recognition of unmarried relationships had adverse economic and social consequences primarily for women and children, who were, for example, denied access to statutory property and maintenance regimes, inheritance, and child maintenance. In many states of the United States (US), and in English property laws, there is still an almost exclusive focus on marriage (and, where offered, formalised status through parallel institutions such as civil unions) in family property and inheritance law.76 Until the 1980s, there was no legislation anywhere in Australia enabling a person who was not married to another to claim property from the other on separation (leaving resort to claims in equity as the only option),77 and unmarried couples were unrecognised for almost all legal purposes. This changed through state laws introducing property adjustment regimes for heterosexual cohabiting or ‘de facto’ couples from the 1980s onwards; these then extended to recognition in a wider range of state laws and in much federal law as well (with the notable exception of the FLA by reason of constitutional limitations). The terminology of ‘de facto marriage’, now more commonly referred to as a ‘de facto relationship’, arose 75 Attorney-General for the Commonwealth v Kevin & Jennifer [2003] FamCA 94, [151]. 76 See, e.g., Law Commission (UK), Cohabitation: the Financial Consequences of Relationship Breakdown, Report No. 307, Law Commission, London, 2007; H. Conway and P. Girard, ‘“No Place Like Home”: The Search for a Legal Framework for Cohabitants and the Family Home in Canada and Britain’ (2005) 30 Queen’s Law Journal 71; Simone Wong, ‘Shared Commitment, Interdependency and Property Relations: A Socio-Legal Project for Cohabitation’ (2012) 24 Child and Family Law Quarterly 60. 77 See NSW Law Reform Commission, De Facto Relationships, Report 36, NSW Law Reform Commission, Sydney, 1983, ; Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78. See also Jenni Millbank and Reg Graycar, ‘From Functional Family to Spinster Sisters: Australia’s Distinctive Path to Relationship Recognition’ (2007) 24 Washington University Journal of Law and Policy 121.

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from the idea that one could be married ‘in fact’ rather than in law (de jure). Many of the legislative reforms of the 1980s used the terminology of ‘de facto marriage’ and defined this as being a ‘marriage-like’ relationship. It was not until the 1990s that the ‘marriage-like’ frame was dropped and definitions focused more on criteria establishing interdependence and a shared life.78 Once broad recognition of heterosexual de facto couples had occurred, these laws were then extended to same-sex couples through the late 1990s and 2000s across almost all state laws.79 In 2008, as part of a wider raft of reforms, the FLA was amended to extend to financial disputes on relationship breakdown between de facto couples through a referral of powers from the states (Chapter 2). The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) was intended to commence in March 2009 (although there was a technical flaw in this that required retrospective authorisation).80 Two other pieces of legislation81 operative from 28 October 2008 introduced a centralised definition of de facto relationship into federal law (discussed below at 4.2.11) and extended recognition to same-sex de facto couples in a wide range of areas such as superannuation, immigration, child support, and Medicare. There are now only a handful of laws in Australia that distinguish between married couples and de facto couples.82 There is also a more recent range of formal recognition systems (registered partnership and civil union schemes) open to same-sex and heterosexual couples who cannot, or choose not to, marry, as well as some limited forms of recognition for non-couple relationships.83 The legal significance of recognition of adult partnerships is most evident in the context of financial disputes on relationship breakdown, as being married or in a de facto relationship allows access to federal jurisdiction, which offers advantages including specialised courts, an approach generally seen as more sympathetic to homemakers, and consistency across Australia (Chapter 2). While in general the relationship status of adults has no impact upon the legal relationship of parent and child, being in a marriage or a de facto relationship with the mother of a child is the linchpin of legal parenthood for the other parent in families formed through assisted conception (4.3.4). The following sections begin first with a discussion of the relevant definitions and recent case law interpreting de facto relationships and then move on to examine alternatives such as registered relationships and non-couple relationships before considering the definitions and formal requirements for marriage. De facto relationships are examined first in recognition

78 Jenni Millbank, ‘The Recognition of Lesbian and Gay Families in Australian Law: Part 1 Couples’ (2006) 34 Federal Law Review 1; Jenni Millbank and Reg Graycar, ‘From Functional Family to Spinster Sisters’, above n 77. 79 Jenni Millbank, ‘De facto Relationships, Same-Sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 160. 80 Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth). The Act amended the Attorney-General’s Department’s failure to validly confer jurisdiction, via a proclamation under s 40(2) of the FLA, in 2009. 81 Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth). 82 See, e.g., Adoption Act 2009 (Qld). 83 Normann Witzleb, ‘Marriage as the “Last Frontier”? Same-Sex Relationship Recognition in Australia’ (2011) 25(2) International Journal of Law, Policy and the Family 135.

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of the fact that many Australian couples will never marry, or if they do, as discussed above, are more likely than not to have cohabited for an extensive period in advance.

4.2.1 De facto relationships An important process-related distinction between marriages and other forms of legally recognised relationships is that legal consequences flow simply from the status conferred by the marriage, rather than from the particular circumstances of the relationship. For de facto relationships, there is no marriage certificate that can be produced to establish such a status, and so criteria set out in the relevant legislation must be proven if there is a dispute about the existence or duration of the relationship. Prior to 2008, there were at least six different definitions of ‘spouse’ operative in federal law, with an additional five definitions of ‘partner’ or ‘couple’.84 While heterosexual de facto relationships fell within virtually all of the definitions, same-sex relationships did not. In addition to expanding the Family Court’s jurisdiction to divide the property of unmarried couples and bringing same-sex couples within the broader federal approach to de facto relationships, the 2009 reforms introduced for the first time a uniform, central, federal definition of ‘de facto relationship’ with criteria for making a determination in cases of doubt. The central de facto definition is contained in section s2F of the Acts Interpretation Act 1901 (Cth). This provision reflects out to federal law generally, and is essentially the same as that inserted into section 4AA of the FLA although there are minor differences. In order to have access to the federal family law jurisdiction, separated couples need to demonstrate that they have a connection with one of the referring states. This requires that: • one or both of the parties was ordinarily resident there when the application was made and that in addition both members of couple were resident there for a third of the relationship or that the applicant had made substantial contributions, or in the alternative; • both parties were resident in the jurisdiction when the relationship broke down.85 As discussed in Chapters 13 and 15, the legal framework for determining de facto partner property and maintenance disputes mirrors that applicable to married couples; however, rather confusingly, some (but not all) of the de facto provisions are placed in a new part of the Act (Part VIIIAB) and numbered in a way that does not consistently mirror the numbering of the pre-existing provisions—so for example the section 79 factors appear for de facto couples under section 90SM, while 75(2) is replicated in 90SF(3). Some commentators, most notably Patrick Parkinson, have argued that it is not appropriate to bring de facto couples within the same property regime as married couples. Parkinson has argued that sociological evidence demonstrates that the category of ‘de facto relationship’ covers a very wide range of relationships with varying levels of commitment (from those who are just ‘trying out’ a relationship to those who stay together for lengthy periods or who go on to marry) and that de facto couples are, on the whole, less likely 84 See Jenni Millbank, Areas of Federal Law That Exclude Same-Sex Couples and Their Children: Research Paper, Appendix II, Human Rights and Equal Opportunity Commission, Canberra, 2006. 85 FLA ss 90K (1) and (1A).

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than married couples to be financially interdependent, in particular if they do not have children.86 Parkinson also claimed before the Senate Committee Inquiry into the 2008 reforms that it is improper to subject unmarried couples to the potential obligation under federal family law to pay lump sum or periodic maintenance (which is not present in many state regimes) when they have the option to marry [if heterosexual] and have chosen not to do so.87 While there is some evidence to suggest that married couples in general are more likely than unmarried couples to pool their incomes in a common account (Chapter 10), this should not necessarily be taken to mean that unmarried couples are not financially interdependent or are necessarily less interdependent than married couples. Nor does this demonstrate that being unmarried always or often represents a ‘choice’ to reject the partnership approach to resources within the relationship.88 First, it is critical to note that general findings on pooling of income may not be sufficiently nuanced; indeed by focusing on marital status as the key variable, these inquiries may overlook other factors that are far more critical to economic interdependence. Analysis by Edith Gray and Ann Evans of 1997 data found that married couples were more likely to pool their incomes than de facto couples, but also found that the length of the relationship, the presence of children in the relationship and the purchase of property also had an impact on this.89 That research also examined degrees of shared income rather than focusing only upon whether there was a total pooling of funds, and concluded that most de facto couples, like most married couples, combined some or all of their income when they had children or shared property.90 In addition, focusing upon shared bank accounts or pooled funds may be misleading when the key question in determining whether property settlement orders should be made is whether this would be a just and equitable response in all the circumstances (Chapter 13). If it is just and equitable to make an order, the question of what orders to make is determined by examining financial and non-financial factors broadly related to the parties’ contributions during the relationship and relative positions going into the future. While heterosexual couples with children are most likely to engage in the enduring gendered division of paid and unpaid labour that disadvantages women (through consequent depressed incomeearning capacity and lower retirement savings at separation), this paradigm example of economic interdependence should not overshadow the fact that there may be many other forms of interdependence that are relevant. 86 Patrick Parkinson, ‘Quantifying the Homemaker Contribution in Family Property Law’ (2003) 31 Federal Law Review 1; Patrick Parkinson, Submission, August 2008, Senate Legal and Constitutional Affairs Committee, Inquiry into the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. Parkinson argued that property disputes between unmarried couples without children would be best dealt with using concepts of unjust enrichment and detrimental reliance. 87 See also Dorothy Kovacs, ‘A Federal Law of De Facto Property Rights: The Dream and the Reality’ (2009) 23 Australian Journal of Family Law 104. 88 See, e.g., Helen Glezer, ‘Cohabitation’ (1991) 30 Family Matters 24; Supriya Singh, Marriage Money: The Social Shaping of Money in Marriage and Banking, Allen & Unwin, St Leonards, 1997. 89 Edith Gray and Ann Evans, ‘Do Couples Share Income? Variation in the Organisation of Income in Dual-Earner Households’ (2008) 43 Australian Journal of Social Issues 441. 90 ibid., 449–50.

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4.2.1.1 Definition of de facto relationship for FLA The essence of the FLA definition of a de facto relationship is ‘a couple living together on a genuine domestic basis’ who are ‘not legally married’ or ‘related by family’: FLA section 4AA(1). This is almost identical to the definition that was in use in state law at the time of the amendments in 2009; however, the FLA did not include the requirement that there be ‘two adult persons’91—thus minors (or those who were minors at the outset of a relationship) are also included in the FLA. The family law courts are empowered under section 90RD to issue a declaration as to the existence, or non-existence, of a de facto relationship for the purpose of proceedings. The onus of proof to establish the relationship if it is disputed is on the applicant.92 This may involve a detailed evidentiary exercise, one which Behrens has argued ‘takes us back to the days before no-fault divorce, when the details of parties’ private lives were laid bare in court’.93 If the de facto relationship is contested, the court cannot exercise other powers in relation to the determination of financial disputes, including making property and maintenance orders or other forms of relief such as granting injunctions, until the question of the existence of the relationship is determined. This is because it is the de facto relationship that establishes jurisdiction. 94 FLA section 4AA(2) sets out an inclusive list of criteria to be used in determining whether a relationship that is based on the earlier New South Wales (NSW) approach exists.95 These factors are: (a) (b) (c) (d) (e) (f ) (g) (h) (i)

the duration of the relationship the nature and extent of common residence whether or not a sexual relationship exists the degree of financial dependence or interdependence, and any arrangements for financial support the ownership, use and acquisition of property the degree of mutual commitment to a shared life whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; the care and support of children the reputation and public aspects of the relationship.96

91 Property (Relationships) Act 1984 (NSW) s 4(1). 92 Taisha & Peng and Anor [2012] FamCA 385. 93 Juliet Behrens, ‘“De Facto Relationship”? Some Early Case Law under the Family Law Act’ (2010) 24 Australian Journal of Family Law 350, 360. 94 Norton & Locke [2013] FamCAFC 202. 95 In turn the NSW criteria inserted in 1999 were drawn from earlier de facto case law, see D v McA (1986) 11 Fam LR 214, 227 per Powell J, which was drawn from earlier divorce law. Thus there has always been a relationship between case law determining whether a de facto relationship exists and cases on when a married couple have separated. 96 Acts Interpretation Act 1901 (Cth) s 22(2); FLA s 4AA(2).

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The only factor in the FLA list that is not drawn from state law is (g). Like earlier state laws, the FLA specifically provides that no factor is required.97 Over time case law from the state jurisdictions on the interpretation of de facto relationship definitions has demonstrated a development ‘towards a broader, more flexible interpretation of the de facto category, a less formalistic approach to the indicia of cohabitation, and a lesser focus on the traditional hallmarks that are thought to be marriage-like’.98 The assessment takes into account the totality of the circumstances, and both state and federal courts assessing the existence of de facto relationships over time have repeatedly acknowledged that the human experiences of relationships differ and that there can be no single model of what a committed relationship looks like.99 So for example, in the recent decision of Sinclair & Whittaker100 the Full Court (Bryant CJ, Thackray and Aldridge JJ) upheld the finding of a trial judge that one partner having attested herself as ‘single’ on various government documents early in the course of the relationship was not determinative of her status either at the time or subsequently.

4.2.1.2 Duration The FLA, in common with most state and territory property division regimes, requires that a couple have been in a de facto relationship for ‘at least two years’ in order for jurisdiction to make property and maintenance orders to be exercised unless the relationship was registered under state law, or there is a child of the relationship, or the applicant has made a substantial contribution such that serious injustice would result from a failure to make the order (FLA section 90SB).101 Note that none of these criteria of itself establishes that there was a de facto relationship.102 It is important to note that there is no requirement regarding the duration of the relationship in the actual definition of de facto relationship itself in the FLA. Thus other provisions that hinge on de facto status, such as parentage in assisted conception (section 60(1)) or adoption of a child by a de facto partner (section 60HA), do not require that the relationship has existed for a particular time. Nor do most other provisions of federal law concerning de facto relationships. An application for de facto property proceedings under the FLA must also be filed within two years of the end of the relationship, although there are exceptions for hardship  97 FLA s 4AA(3).  98 Jenni Millbank, ‘The Changing Meaning of “De Facto” Relationship’ (2006) 12 Current Family Law 82.  99 In Roy v Sturgeon (1986) 11 Fam LR 271, Powell J stated that dividing the definition of ‘living together as a husband and wife on a bona fide domestic basis’ into discrete ‘elements’ and then testing the facts of a particular case by reference to set of a priori rules in order to establish whether a particular ‘element’ is, or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship that lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case. Quoted with approval by Coleman J in Barry & Dalrymple [2010] FamCA 1271, [227] and Loughnan J in Ward & Trench [2013] FamCA 478, [51]. In Vaughan & Bele [2011] FamCA 436 Cronin J [11] held that a relationship may also ‘evolve and alter dramatically over time’. 100 Sinclair & Whittaker [2013] FamCAFC 129. 101 A similar provision operates in state legislation, e.g., Property (Relationships) Act 1984 (NSW) s 17; Property Law Act 1974 (Qld) s 287. 102 Ricci & Jones [2011] FamCAFC 222; Sinclair & Hatcher [2014] FCCA 395.

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(Chapter 13).103 This means that there will be cases in which not only the duration but the exact date of the beginning and end of the relationship will be important.104 These cases may involve parties seeking a declaration that they were in a de facto relationship. The FLA defines the two-year period as ‘the period, or the total of the periods’ of the relationship.105 In Dahl & Hamblin106 a de facto relationship existed between a couple from March 1994 to December 1998, and from April 2008 to October 2009, and the question arose as to whether a period of the relationship that preceded the introduction of the Act could be included in the aggregation. The Full Court upheld the approach of the federal magistrate in including both periods to find that the two-year duration was satisfied and jurisdiction established. In Fenton & Marvel in 2013 the Full Court (May and Murphy JJ, Strickland J disagreeing on the finding) determined that the trial judge had erred in deciding that a de facto relationship which had ended prior to 1 March 2009 and then resumed at a later point was not covered by the FLA jurisdiction. The Full Court held that the relevant question is not, as the trial judge had asked, whether the relationship was in existence on 1 March 2009, but rather whether it finally ended after that date.107 The court aggregated the periods of the relationship to find that the couple had been in a de facto relationship meeting the two-year requirement and ending after 1 March 2009, so that the FLA applied. In a number of recent cases the Family Courts, while acknowledging that de facto relationships may differ from marriages, have applied the test of separation developed in Pavey concerning when a couple is living separately and apart (discussed below at 4.2.4),108 to determine whether and when a de facto relationship has ended.109

4.2.1.2.1 Living together as a couple on a genuine domestic basis and the extent of common residence ‘Living together’110 as a couple is the core element of the definition of a de facto relationship. The question of the ‘nature and extent’ of common residence in the legislative criteria indicates that this is a variable factor that may not require cohabitation through the totality of the relationship. In Jonah & White, a case involving a 17-year clandestine relationship between a woman and a man who was married to someone else, the trial judge, Murphy J, held that ‘living together on a genuine domestic basis’ was ‘the manifestation of “coupledom”, which involves the merger of two lives … that is the core of a de facto relationship as defined 103 FLA s 44(5), (6). 104 There are also a transitional group of cases on the issue of whether the de facto relationship ended before the reforms came into operation on 1 March 2009 (and is therefore outside the jurisdiction of family courts to determine). 105 FLA s 90SB(a) (emphasis added). 106 Dahl & Hamblin [2011] FamCAFC 202. 107 Fenton & Marvel [2012] FamCAFC 150, [44] (Murphy J), May J agreeing [3]. Strickland J was not convinced that the trial judge had focused wrongly on the question of whether the relationship was in existence on 1 March 2009 but still held an error in that the trial judgment contained no finding of when the relationship did end. 108 Pavey & Pavey (1976) FLC 90-051. 109 Volen & Backstrom [2013] FamCA 40; Clisbey & Viges [2011] FamCA 611; Aitken & Deacon FMCAFam 35. See a critique of such approach in Juliet Behrens, above n 93. 110 It is an anomaly that while the Acts Interpretation Act 1901 (Cth) s 22(2) clarifies that a couple who are temporarily separated or who are separated by illness or infirmity should still be taken to be living together the FLA definition does not do so.

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and to which each of the statutory factors (and others that might apply to a particular relationship) are directed’, which was not satisfied in that case.111 The lack of a shared life rather than a common residence per se was determinative, with Murphy J holding that it is: clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union—the merger of two individual lives into life as a couple—that lies at the heart of the statutory considerations’.112

Dismissing the appeal, the Full Court considered that ‘[h]is Honour’s conclusion that the proper focus of his determination was the nature and quality of the asserted relationship rather than a quantification of time spent together was, in our view, entirely correct’.113 The FCoA has largely followed the approach of state courts in developing a liberal and contextual approach to the question of ‘living together’ to encompass separate residences and voluntary physical separations within an understanding of couples being ‘together’ ‘in the manner that suits them’.114 So, for example, couples sharing a life together but maintaining separate residences for some years before cohabiting,115 having adjoining interconnected residences,116 or keeping separate residences for privacy, family disapproval, or other reasons of convenience,117 were nonetheless been held to be ‘living together’ under state de facto regimes. In Moby & Schulter the male partner kept a separate residence where he stayed with the applicant for more than half the time, in particular in periods when he did not have time with his child from a previous relationship. Mushin J held that there was a de facto relationship in existence and that ‘the concept of “living together” does not import any concept of proportion of time’118. However, while there have been some decisions of state courts that a couple who spent the majority of their time at each other’s houses but never had a shared residence did ‘live together as a couple’, to date there has been no such finding in the family law courts.119 For example, in Sinclair & Hatcher the parties had a turbulent five-year relationship, including having a child together, but never lived together and did not share finances. 111 Jonah & White [2012] FamCAFC 200, [21] (May, Strickland and Ainslie-Wallace JJ), referring to the first instance decision of Murphy J in Jonah & White [2011] FamCA 221, [60]. 112 Jonah & White [2011] FamCA 221, [65]–[66]. 113 Jonah & White [2012] FamCAFC 200, [44] (May, Strickland & Ainslie-Wallace JJ). 114 See, e.g., Greenwood v Merkel [2004] NSWSC 43, [15]. 115 Robinson v Rouse [2005] TASSC 48. 116 S v B (No 2) [2004] QCA 449. 117 Houston v Butler [2007] QSC 284. 118 Moby & Shulter [2010] FamCA 748, [18]. 119 In Jonah & White [2012] FamCAFC 200, the Full Court (May, Strickland & Ainslie-Wallace JJ) held ‘that the definition may be fulfilled where parties have lived together for limited periods provided that other indicia or the circumstances of the matter enable a finding that they were “living together on a genuine domestic basis” [40] but considered ‘“emotional communion” is insufficient to fall within the definition of “living together”’ [42].

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Despite evidence of a long period of a sexual and romantic involvement, including text messages referring to an ‘anniversary’, Bender J refused an order under section 90RD for a declaration that a de facto relationship existed on the basis that the couple had never lived together on a genuine domestic basis.120 Likewise in Keene & Scofield (No. 2) Brown J held that a six-year relationship between a couple who lived on adjoining properties and socialised together but did not share finances did not qualify as a de facto relationship, stating, ‘This degree of emotional entanglement is not sufficient, in my view, to transmogrify their relationship into a state of domestic coupledom’.121

4.2.1.2.2 Sexual relationship and shared life A major departure from the definition used in state legislation was that the FLA expressly provides that a person can be in a de facto relationship, even if they are married or living in a de facto relationship with someone else.122 Both the question of a (monogamous or purportedly) sexual relationship and that of a commitment to shared life raise the question of how to characterise overlapping, multiple or concurrent relationships. Some commentators are of the view that this provision does not offer remedies for women in polygamous marriages,123 based on a statement of the then Attorney-General in the Second Reading Speech that the provision would be ‘used most often’ when ‘a couple has been separated for some time but formal divorce of the original marriage has not been finalised’ adding ‘only to that extent, in those circumstances, does the legislation apply to concurrent relationships.’124 However, Millbank has argued that the wording of the legislation is plainly much broader than those circumstances and could, for example, encompass a situation where a person conducted two simultaneous de facto relationships over many years or a long-term affair while still married, as long as there was evidence of both emotional and financial interdependence such that the remedial purpose of the Act was enlivened.125 A number of decisions of the FCoA have since held that a de facto relationship may be found in circumstances where other relationships have been conducted simultaneously.126 Whether a long-standing sexual relationship does or does not reach the threshold of a ‘shared life’ will often be a question of fact that depends very much on the circumstances of the individual couple. When NSW state law was first amended to include same-sex couples some commentators expressed concern that the ‘reputation and public aspects’ provision would disadvantage couples who had been closeted through all or much of the relationship, especially where one partner denied the existence of the relationship.127 In fact there have Sinclair & Hatcher [2014] FCCA 395, [164]. Keene &Scofield (No. 2) [2013] FCCA 1107, [432]. See [419]–[435] for Brown J’s conclusions. Acts Interpretation Act 1901 (Cth) s 22C(5); FLA s 4AA(5)(b). Jenny Richards and Hossein Esmaeili, ‘The Position of Australian Muslim Women in Polygamous Relationships under the Family Law Act 1975 (Cth): Still “Taking Multiculturalism Seriously”?’ (2012) 26 Australian Journal of Family Law 142. 124 Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2008, 6542 (Robert McClelland, emphasis added). 125 Jenni Millbank, ‘De facto Relationships, Same-Sex and Surrogate Parents’ above n 79. 126 Moby & Schulter [2010] FamCA 748; Jonah & White (2011) FamCA 221; Ricci & Jones [2011] FamCAFC 222. 127 Jenni Millbank and Kathy Sant, ‘A Bride in Her Every-Day Clothes: Same-Sex Relationship Recognition in NSW’ (2000) 22 Sydney Law Review 181. 120 121 122 123

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been very few cases where the reputation or public aspects have been determinative. In cases concerning clandestine heterosexual relationships, such as Jonah & White, it was the combination of a lack of shared life, shared residence or financial intermingling that was determinative rather than the secret nature of the relationship per se.

4.2.1.2.3 Registered relationships Separate institutions that offer ‘parallel’ regimes to marriage such as civil unions and registered partnerships have been opposed on the basis that they reinforce an inferior status even if the substantive rights granted are comparable or even identical.128 In one international study of attitudes of lesbians and gay men they were described in terms such as ‘inferiority, segregation and “second-class” status’129 and more colourfully: ‘I think that dogs are “registered”, people shouldn’t be’.130 While some characterise parallel formal recognition systems as ‘marriage-lite’ or inferior substitutes,131 others such as Wayne Morgan and Olivia Rundle have argued that they ‘offer a valuable and distinct alternative to marriage’ that need not be seen as hierarchical or mutually exclusive.132 The FLA includes as a factor when determining the existence of a de facto relationship ‘whether the relationship is or was registered under a prescribed law of a state or territory’.133 The central federal definition separately provides that any reference to a de facto relationship includes a registered relationship under the prescribed law of a state or territory.134 This slight difference in drafting means that while registered couples will be taken without further proof to qualify as de facto relationships in most federal law, for family law the registration is merely one factor to be taken into account in determining the existence of the relationship, which could nonetheless be held not to qualify. However, having a de facto relationship under the FLA that is a registered relationship elsewhere means that it does not need to have existed for two years for the property and maintenance provisions to be enlivened. Relationship registration schemes currently exist in Tasmania,135 the Australian Capital Territory (ACT, now titled ‘civil partnerships’ in that jurisdiction), Victoria, NSW and Queensland136 and these are all prescribed in federal law with the effect that they are ‘registered relationships’ for the FLA.137 While all of the Australian registration schemes except the ACT are open to both same-sex and heterosexual couples, they have 128 Opinion of the Justices to the Senate 802 NE 2d 565 (2004). 129 Rosie Harding, ‘Dogs Are “Registered”, People Shouldn’t Be’: Legal Consciousness and Lesbian and Gay Rights’ (2006) 15 Social & Legal Studies 511, 525. 130 ibid. 131 Normann Witzleb, above n 83; Adiva Sifris and Paula Gerber, ‘Same-Sex Marriage in Australia: A Battleground for Equality’ (2011) 25 Australian Journal of Family Law 96. 132 Wayne Morgan, ‘Equity, Choice and Inclusion’, Online Opinion, 6 November 2008, ; Olivia Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 26 Australian Journal of Family Law 121, 122. 133 FLA s 4AA(2)(g). 134 Acts Interpretation Act 1901 (Cth) s 22A. 135 The Tasmanian legislation remains unique in that it allows both registered and unregistered (i.e., de facto) relationships, but also accommodates both couples and non-couples in both categories. The Victorian Act allows registration of both couple and non-couple relationships. 136 See Relationships Act 2003 (Tas) Part 2; Civil Unions Act 2012 (ACT); Relationships Act 2008 (Vic); Relationships Act 2011 (Qld); Relationships Register Act 2010 (NSW). See Rundle, above n 133. 137 Family Law Regulations 1984 (Cth) Reg 12BC, 15AB, as amended by the Family Law Amendment Regulations 2009 (No 1) (Cth).

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been primarily utilised by same-sex couples, with the notable exception of NSW where heterosexual registrants make up the majority.138 The ACT in particular has had a prolonged period of seeking to extend formal recognition systems to same-sex relationships and being opposed by federal governments, which have been able to do so on the basis of the ability to disallow territory laws in addition to the Federal Parliament’s marriage power under section 51(xxi) of the Constitution (see Chapter 3). In 2006 the ACT enacted the Civil Unions Act. This Act began with a preamble, which provided for a ‘civil union’, which was to be ‘a legally recognised relationship’ that ‘may be entered into by any two people, regardless of their sex’ and ‘different to a marriage but … to be treated for all purposes under territory law in the same way as a marriage’ (section 5). The legislation provided that such a union could be entered into by the parties stating their intention to a civil union celebrant (section 9), and then declaring their intention before such a celebrant and a witness (section 11). The legislation also provided that unions entered into overseas that could not be recognised as valid in Australia because of section 88EA of the Marriage Act 1961 (Cth) were automatically civil unions (section  4), and this included gay and lesbian marriages entered into overseas. The coalition government acted to disallow this legislation,139 with then Attorney-General, Philip Ruddock, stating that his intention in doing so was to ‘defend marriage’. He noted that the ACT legislation ‘creates a statutory scheme for the recognition of relationships which bears striking similarity to the Commonwealth’s regulation of marriage’.140 This was despite the fact that the ACT legislation did not grant any rights outside the ACT, nor did it expand the rights of those who would be parties to civil unions beyond those available in relation to de facto relationships. In 2008 the ACT government introduced a replacement Civil Partnerships Act, which equated civil partnerships with de facto partnerships rather than with marriage and which removed the provision for a celebrant to formalise the union. In turn this Act was repealed and replaced in 2012 by the Civil Unions Act, which is open only to those who are not able to marry and does make provision for a celebrant to formalise the relationship.141 In 2013 the ACT government then passed an Act to introduce marriage for same-sex couples for the purposes only of the laws of the ACT. This legislation purported to repeal and replace the Civil Unions Act, but it was struck down by the High Court of Australia following a challenge brought by the Commonwealth Government (discussed below at 4.2.3.2.2).142 Thus, the Civil Union Act 2012 (ACT) survives. It is noteworthy that a number of countries that originally introduced parallel institutions have since gone on to extend marriage to same-sex couples within a relatively short period of time. The interaction of these systems is itself a complex matter both 138 Rundle, above n 132. 139 The power to disallow ACT legislation is granted under s  35(2) of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth): the Governor-General, on the advice of Executive Council, may disallow an ACT enactment within six months. Notice of the disallowance was made in the Commonwealth Gazette, No. 93, 14 June 2006. 140 Attorney-General’s Department, Australian Government, ‘Commonwealth to Defend Marriage against Territory Laws’, Media Release No. 102/2006, 6 June 2006. 141 Section 7(c). 142 Commonwealth v ACT [2013] HCA 55.

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within and across countries. The United Kingdom (UK) and New Zealand both originally instituted parallel civil partnership systems for same-sex couples in 2004 but have since introduced equal marriage.143 Since the UK passed the Marriage (Same-Sex Couples) Act 2013 and New Zealand passed the Marriage (Definition of Marriage) Amendment Act 2013, same-sex couples may now either get married or register their relationship as a civil union/partnership. Those with an existing civil partnership are under no obligation to get married; however, in the UK if they do choose to ‘upgrade’ to marriage, they are not then permitted to ‘downgrade’ back to a civil partnership without divorcing.144

4.2.2 Non-couple relationships Along with developments in the 1990s to recognise same-sex couple relationships at state level, there was reconsideration of the singling out of conjugal relationships for special treatment. This reflected a growing awareness that dependencies requiring recognition under the law arise not just in relationships that are, or have been, sexual, and that a broader category of relationships than those characterised as ‘marriage-like’ should be recognised for a limited set of purposes.145 Most relevantly for our purposes, four Australian jurisdictions have now enacted legislation making available a statutory scheme for resolution of financial disputes on relationship breakdown to non-couple relationships in certain circumstances. Broadly, the state and territory regimes differ depending upon whether a non-couple must live together and/or register their relationship in order to be eligible. The ACT was the first jurisdiction in Australia to adopt a broad notion of ‘interdependency’ for its property division and maintenance regime. The Domestic Relationships Act 1994 used the central definition of a ‘domestic relationship’ as ‘a personal relationship between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage’ (section 3(1)).146 The legislation made clear that ‘a personal relationship may exist between persons although they are not members of the same household’, and  excluded  certain  categories of paid caregiving.147 Tasmania and Victoria 143 BBC News, Gay Marriage around the World, 23 April 2013, ; See also Carl Stychin, ‘Couplings: Civil Partnership in the United Kingdom’ (2005) 8 New York City Law Review 543; Maureen Baker and Vivienne Elizabeth, ‘Second-Class Marriage? Civil Union in New Zealand’ (2012) 43 Journal of Comparative Family Studies 633. 144 For the UK, see Explanatory Note, Marriage (Same-Sex Couples) Act 2013, s9; and for New Zealand see Civil Union Act 2004 (NZ); The Department of Internal Affairs, Civil Union, undated, . 145 See Reg Graycar and Jenni Millbank ‘The Bride Wore Pink … to the Property (Relationships) Amendment Act’ (2000) 17 Canadian Journal of Family Law 227. Elsewhere, the Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Relationships, Minister of Public Works and Services, Ottawa, 2001, ‘questioned whether the law should move away from the granting of rights and responsibilities on the basis of marriage or spousal status, suggesting some other marker such as “emotional and economic dependence”’— discussed in Claire Young and Susan B Boyd, ‘Losing the Feminist Voice? Debates on the Legal Recognition of Same-Sex Partnerships in Canada’ (2006) 14 Feminist Legal Studies 213, 225. See more recently Anne Bottomley and Simone Wong  (eds), Changing Contours of Domestic Life, Family and Law: Caring and Sharing, Hart Publishing, Oxford, 2009. 146 On ‘material benefit’ see Brady & Harris [2012] FamCA 420. 147 Section 3(2): ‘a personal relationship shall not be taken to exist between persons only because one of them provides a service for the other (i) for fee or reward; or (ii) on behalf of another person (including a government or body corporate); or (iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.’

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also include non-couples who do not cohabit, although in Victoria the relationship must be registered to be eligible.148 In contrast, in NSW a ‘close personal relationship’,149 requires the parties live together to satisfy the definition.150 The NSW Act also requires that one or both parties provide the other ‘with domestic support and personal care’ (section 5(1)(b)). In early case law this category was ‘restrictively defined by the court as requiring proof both of domestic support and personal care’,151 namely ‘assistance with mobility, personal hygiene and physical comfort’.152 Later cases have interpreted the definition more liberally and included, for example, former partners who continued to share property.153 These provisions for non-couples (and in more limited instances for non-cohabitees) in state property laws have been little used,154 probably because non-couples are less likely than couples to intermingle finances in the purchase and maintenance of real property without formalising their respective ownership (for example, through a tenancy in common) and so they are less likely to need to use formal court processes to apportion their interests.155 However, it is notable that the referral of powers concerning de facto couples to the Federal Parliament did not include domestic or non-couple relationships, leaving this as an important area of residual jurisdiction for the states and territories. This leaves applicants with ambiguous relationships caught between the jurisdictions. While unsuccessful claimants for de facto status in state matters could sometimes ‘fall back’ on a domestic relationship claim, such applicants would now be required to commence proceedings in another court unless there was some other source of jurisdiction (such as accrued or third party jurisdiction: Chapter 3) under the FLA to entertain the case. So for example in McMaster & Wyhler156 the parties were dancing partners who spent a lot of time together; the applicant had lived in a granny flat at the rear of the respondent’s house for four years and the parties had a joint bank account and joint shareholding, but never had a sexual relationship. Justice Tree declared that there was no de facto relationship in these circumstances. While the court did not refer to this option, if the applicant wished to make an argument that the non-couple relationship should still be accorded legal recognition in order to determine the financial matters contested between the parties, he would need to commence proceedings under the Victorian Relationships Act 2008. 148 Relationships Act 2008 (Vic) ss 4, 5, 41. Relationships Act 2003 (Tas) ss 4, 5. 149 See further Jurd v Public Trustee [2001] NSWSC 632, in which the meaning of ‘close personal relationship’ was considered. 150 Property (Relationships) Act 1984 (NSW) s 5(1)(b). 151 Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law—Part 1 Couples’, above n 78, p 12. 152 Dridi v Fillmore [2001] NSWSC 319. 153 Burgess v Moss [2010] NSWCA 139. 154 Jenni Millbank, ‘Domestic Rifts: Who Is Using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14 Australian Journal of Family Law 163; Tracey Summerfield, ‘Understanding the Law of the Family: A Question of Practice not Interpretation’ (2002) 11 Griffith Law Review 44. 155 In Sharpless v McKibbin [2007] NSWSC 1498, [71] Brereton J stated that ‘[c]lose personal relationships within the definition cover a wide range of relationships, and typically do not involve “a practical union of lives and property”’. 156 McMaster & Wyhler [2013] FamCA 989.

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4.2.3 Marriage The following sections we discuss briefly the role of marriage in contemporary Australian society. We then examine the formal requirements for entry into and exit from marriage. This includes discussion of contestation over both transgender and same-sex marriages as part of the discussion of the current Australian requirement that marriage must be between a ‘man and woman’.

4.2.3.1 Marriage and cultural diversity While in almost all practical respects the legal significance of marriage has diminished, access to marriage is still often viewed as important, including to those who are denied it. Australian law on marriage combines deference to a range of religious and cultural practices in relation to marriage ceremonies with a culturally and religiously specific view of what constitutes a marriage. The particular form of marriage that can be entered in Australian law is between adults who have given their individual consent; marriage must be heterosexual and have only two marital partners. Each of the current requirements represents particular cultural and religious practices that are not reflective of the range of marriage practices in Australia, let alone elsewhere in the world. This remains the case despite the secularisation of marriage. Marriage where  one or both partners are aged under 18 is common in many cultures (including Indigenous Australian cultures); polygamy and polyandry are practised, and same-sex marriages are now legal in a number of other countries, including most recently the UK and New Zealand. There is a continuing symbolic importance attached to marriage in the general community. The limited recognition of Indigenous and polygamous marriages under Australian law shows the cultural specificity of Australian marriage law. This is readily evident when we begin to identify the various ways in which such marriages may not meet the requirements of the MA: there is unlikely to be a ceremony in the form required under the Act,157 they may involve a girl who is not of marriageable age as defined in the MA, and they may be actually or potentially polygamous. In addition, ‘freedom of marriage was restricted by the prohibitions against the marriage of certain close relatives and by the rule of exogamy, that is, marrying outside one’s group’,158 which, as with other contexts in which ‘arranged’ marriages occur (see 4.2.3.3), raises questions about the extent to which there was individual consent to marriage. Yet this approach is problematic, as it makes the MA the benchmark and does not allow room for developing an understanding of Indigenous marriage practices and the traditional law underlying them.

157 In traditional Aboriginal society a ‘marriage may be signalled by the simple act of a couple living together and being accepted as married by their kin. It has been noted that the mere act of a woman walking through a camp to join a man at his request may constitute a marriage ritual’: Stephanie Fryer-Smith, Aboriginal Benchbook for Western Australian Courts, 2002, [2.6.2]. 158 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Volume 1, Report No. 31, Australian Law Reform Commission, Canberra,1986, [223].

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Over 20 years ago, the Australian Law Reform Commission (ALRC) recommended taking a functional approach to the recognition of Aboriginal customary marriages, which would avoid imposing consequences where they are not wanted or needed, and would enable consideration of the appropriateness of recognition in different contexts. So, for example, in relation to property division and spousal maintenance, the ALRC recommended against recognition, preferring to leave this to the general law, including the law on de facto relationships, but recognising that this position may need to change with greater access to property and shifting Aboriginal views about ‘what constitutes a fair distribution of assets, having regard to traditional responsibilities to kin and family’.159 In contrast, recommendations were made for recognition in specific areas, some of which have been taken up, particularly at state level. The Northern Territory (NT) has adopted a comprehensive approach to recognition by passing legislation which provides that, in any Act of the Territory, a ‘spouse’ means either a person to whom the person is validly married under the MA, or ‘if the person is an Aboriginal or Torres Strait Islander—an Aboriginal or Torres Strait Islander to whom the person is married according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which either person identifies’.160 This avoids the requirement to establish a de facto relationship in order to attract legal consequences, although the issues of proving traditional marriage may be just as difficult.

4.2.3.2 Entering marriage An obvious difference between marriage and de facto relationships is that there are formalised requirements to both enter and end marriage. The requirements for entering into a valid marriage must be pieced together from various provisions in the MA, including section 23B, which sets out the bases on which a marriage is void (thus providing the basis for a decree of nullity).

4.2.3.2.1 Solemnisation There are requirements for marriages to be solemnised by or in the presence of an authorised celebrant (MA section 41), various requirements for the giving of notice and the provision of certain documents (MA section 42), and requirements in relation to the presence of witnesses (MA section 44). In relation to the form of the ceremony, the MA has minimal requirements. When the marriage celebrant is a minister of religion, the marriage ‘may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister’ (section 45). In cases where the marriage celebrant is not a minister of religion, then certain prescribed words are required from each of the parties proclaiming that each takes the other ‘to be my lawful wedded wife (or husband)’ (section 5(3)) and the celebrant is required to say certain words, including that ‘[m]arriage, according to law in Australia, is the union of a man and a woman 159 ibid., [290]. 160 Interpretation Act 1978 (NT) s 19A. In addition, under the De Facto Relationships Act 1991 (NT) s 3, ‘a reference to a de facto partner of an Aboriginal or Torres Strait Islander includes a reference to an Aboriginal or Torres Strait Islander to whom the person is married according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which either person identifies’.

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to the exclusion of all others, voluntarily entered into for life’ (section 46(1)).161 Only defects in some of these requirements will render a marriage invalid (section 48). None of these provisions specifically requires that marriage be between a man and a woman, but this interpretation is compelled by the insertion in 2005 into the definition section in the MA (section5) of a definition of ‘marriage’ in those terms (see 4.2.3.2.2).

4.2.3.2.2 Man and woman Because Australian law insists that marriage is between a man and a woman, it is legally relevant whether a person is a ‘man’ or a ‘woman’ for the purposes of entry into a valid marriage. In Re Kevin the Full Court determined that the point at which sex is determined for the law of marriage is at the time of marriage, not at the time of birth.162 That case involved an application for a declaration of validity of marriage by a couple, one of whom was born female but had since undergone ‘several medical procedures to remove both primary and secondary female sexual characteristics and to substitute male sexual characteristics’163 to transition to male. Kevin had been issued with a new birth certificate recognising his reassigned sex as male.164 Kevin and Jennifer subsequently applied for a declaration of the validity of their marriage.165 In finding that the marriage was valid, the FCA rejected old English authority in Corbett v Corbett166 to the effect that a person’s gender for marriage purposes was determined as at birth and could not be changed. In finding Kevin to be male for the purposes of marriage law, and that the marriage was valid, Chisholm J (whose judgment was upheld on appeal) decided that the words ‘man’ and ‘woman’ are in the context of marriage law to be taken to ‘have their ordinary contemporary meaning according to Australian usage’, and that that meaning ‘includes post-operative transsexuals as men and/or women in accordance with their sexual reassignment’.167 Justice Chisholm listed a range of both subjective and objective factors as circumstances relevant to the determination of the question of whether Kevin was a male at the time of the marriage. These were: • that he ‘had always perceived himself to be male’; • that he ‘was perceived by those who knew him to have had male characteristics since he was a young child’; • that he ‘was accepted as a man for a variety of legal and social purposes’; • prior to the marriage he had gone ‘through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners’; These words echo the definition of marriage in s 5 MA and s 43(a) FLA. Attorney-General for the Commonwealth v Kevin and Others (Re Kevin) [2003] FamCA 94. ibid., [7]. This occurred under s 32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). The Family Court has jurisdiction to make such an order as proceedings for a declaration as to the validity of a marriage are a ‘matrimonial cause’ under s 4 FLA: on jurisdiction in relation to ‘matrimonial causes’; see 2.3.1. 166 Corbett v Corbett [1971] P 83; [1970] 2 All ER 33. 167 Re Kevin [2003] FamCA 94; (2003) 30 Fam LR 1, 9 (headnote). 161 162 163 164 165

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• ‘[a]t the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues’; and • ‘[h]is marriage as a man was accepted, in full knowledge of his circumstances by his family, friends and work colleagues’.168 In rejecting the Commonwealth Attorney-General’s appeal from this decision and the test used by Ormrod J in Corbett v Corbett,169 the Full Court also rejected an argument that marriage is ‘about’ particular kinds of behaviour (in particular, biological reproduction within the couple), or that its definition should be ‘frozen at any point in time’.170 The Full Court endorsed Chisholm J’s rejection both of this submission and of the idea that the sexual aspects of marriage are central to it.171 Interestingly, the Court suggested a broad social shift ‘in the direction of defining [marriage] in terms of companionship’.172 Note, however, that in order to register a legal change of sex in every Australian jurisdiction, a transgender applicant must not be married at the time of the application. This requirement prevents transgendered people from being in what was originally a heterosexual marriage but which becomes a same-sex marriage through the sex change of one partner. Thus transgender individuals who maintain a relationship with a spouse posttransition are forced to choose between divorce and legal recognition of their desired sex. In AB v Registrar of Births, Deaths and Marriages173 the Full Court of the Federal Court held that this was not unlawful sex discrimination.174 There have been increasing calls in Australia for access to marriage for same-sex couples, although not all gay and lesbian groups have agreed that the right to marry should be pursued as the highest political priority.175 Some, particularly feminist critics, argue that marriage is an inherently patriarchal institution that has been oppressive to women and that seeking to extend the availability of marriage to same-sex couples affords marriage a legitimacy which it does not deserve, while others believe that it is wrong to place relationships in a hierarchy with marriage at ‘the top’ above other forms of committed interdependent relationships.176 Others argue that, given the symbolic importance of marriage, a commitment to equality

168 169 170 171 172 173 174

ibid., [2003] FamCA 94, [6]. Corbett v Corbett [1971] P 83. Re Kevin [2003] FamCA 94, [80]. ibid., [153]. ibid., [37]–[8]. AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140. The recent decision of the High Court that the registrar may not refuse to register a person as an ‘indeterminate’ sex under the Births, Deaths and Marriage Act 1995 (NSW), while beneficial particularly for intersex people, does not address this problem: NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11. 175 See Jenni Millbank and Wayne Morgan, ‘Let Them Eat Cake and Ice Cream: Wanting Something “More” from the Relationship Recognition Menu’, in Robert Wintemute and Mads Andenacs (eds), Legal Recognition of SameSex Partnerships, Hart Publishing, Oxford, 2001, pp 295, 306; Donna Cooper, ‘For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-Sex Marriage?’ (2005) 19 Australian Journal of Family Law 153. 176 See, e.g., Aleardo Zanghellini, ‘Marriage and Civil Unions: Legal and Moral Questions’ (2007) 35 Federal Law Review 265; Claire Young and Susan B Boyd, above n 145; Robert Leckey, ‘Must Marriage Mean Identical? SameSex Couples and Marriage’ (2014) 10 International Journal of Law in Context 5; Nancy Polikoff, Beyond Gay and Straight Marriage, Beacon Press, Boston, 2008.

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requires access to marriage for gay and lesbian couples, even if they do not marry.177 This includes feminist arguments for the destabilisation, or transformation, of traditional marriage and gender roles.178 In many other countries, constitution-based equality challenges have been brought in court to address the exclusion of same-sex couples from marriage, with increasing success, and numerous European countries have acted to proactively legislate to remove oppositesex requirements for marriage through the 2000s and 2010s.179 Countries that no longer exclude same-sex couples from marriage include:180 • The Netherlands (2001); • Belgium (2003); • Spain, Canada (2005); • South Africa (2006); • Norway; Sweden (2009); • Portugal; Iceland; Argentina (2010); • Denmark (2012); • Brazil; France; Uruguay; New Zealand (2013); • England and Wales (2014). While many of these jurisdictions have a residency requirement for marriage some, such as Canada, do not (although marriage visitors should beware that it has one for divorce), allowing foreign same-sex couples to travel there to formalise marriages. This has then raised the question of whether such marriages are recognised back in the home jurisdiction. In the US marriage is a matter of state law so there has been wide variation, and the issue of recognition of out-of-jurisdiction marriage has also applied as between states. The early decades of marriage litigation in the US were dominated by losses for equality seekers.181 This included ‘backlash’ measures such as state constitutional amendments to overturn actual or potential court victories in states such as Alaska and California, and the passage in 1994 of the federal Defense of Marriage Act (DOMA), which precluded federal recognition of any state same-sex marriage. In the later 2000s and 2010s this tide 177 Sifris and Gerber, above n 131. For an excellent overview of these arguments in the Canadian context, see Claire Young and Susan B Boyd, above n 145. 178 See, e.g., Rosie Harding, ‘Sir Mark Potter and the Protection of the Traditional Family: Why Same-Sex Marriage is (Still) a Feminist Issue’ (2007) 15 Feminist Legal Studies 223. 179 Kees Waaldijk, ‘Civil Developments: Patterns of Reform in the Legal Position of Same-Sex Partners in Europe’ (2000) 17 Canadian Journal of Family Law 62; Kees Waaldijk, ‘Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries’ (2004) 5 Judicial Studies Institute Journal 104; Susan B Boyd, ‘From Same-Sex to No Sex: Trends towards Recognition of (SameSex) Relationships in Canada’ (2002–2003) 1 Seattle Journal of Social Justice 757. 180 Pew Research Center, Gay Marriage Around the World, Pew Research Center Washington DC, 5 February 2014, . 181 The first case to actually lead to marriage was Goodridge v Department of Public Health 798 N.E. 2d 941 (Mass. 2003). See Miriam Smith, ‘Framing Same-Sex Marriage in Canada and the United States: Goodridge, Halpern and The National Boundaries of Political Discourse’ (2007) 16 Social Legal Studies 5.

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turned with an increasing number of successful outcomes in equality challenges before state supreme courts.182 DOMA was struck down in 2013 by the US Supreme Court in United States v Windsor.183 Edith Windsor and Thea Spyer were partners from 1963 and in 2007 travelled to Canada to formally marry there.184 When Thea died in 2009, Edith was unable to use a spousal estate tax exception because of DOMA and paid over $360,000 in tax, which she then sought a refund for. At age 84, Edith Windsor appealed the decision refusing the refund to the US Supreme Court. A majority of the Supreme Court struck down DOMA on the basis that its ‘avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States’ and thus it was an unconstitutional restriction of the protection of equal liberty. The prospect of Australians marrying abroad and seeking domestic recognition of their status led the Federal Government to amend the MA in 2005 to provide that ‘marriage’ means ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ (section 5). It also amended the provision on the recognition of overseas marriages to specifically exclude same-sex marriages celebrated overseas. Section 88EA of the MA, headed ‘Certain unions are not marriages’, provides that 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’. In recent years there have been three unsuccessful attempts to amend the MA to include same-sex couples, with one bill introduced into the Senate185 and two into the House of Representatives.186 There was a Senate inquiry into the Marriage Equality Amendment Bill 2012 and a House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into two Bills.187 In October 2013, the ACT became the first Australian jurisdiction to legislate for same-sex marriage.188 The Marriage Equality (Same-Sex) Act 2013 (ACT) permitted same-sex couples to marry in the ACT regardless of whether they resided there. The Commonwealth immediately challenged the Marriage Equality Act in the High Court of Australia on the basis that it was inconsistent with the Commonwealth MA (2.4.2). A unanimous six member bench struck down the ACT legislation in 182 Pew Research Center, Same-Sex Marriage State-by-State, Pew Research Center, Washington DC, 21 May 2014, . 183 United States v. Windsor, 570 U.S. (2013), p 21. 184 Eliza Gray, ‘Edith Windsor, the Unlikely Activist’ Time Magazine, 11 December 2013. 185 The Marriage Equality Amendment Bill 2010 (Cth). 186 The Marriage Equality Amendment Bill 2012 (Cth) and the Marriage Amendment Bill 2012 (Cth). 187 House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Advisory Report: Marriage Equality Amendment Bill 2012 and Marriage Amendment Bill 2012 ( June 2012); Senate Legal and Constitutional Committee, Parliament of Australia, Marriage Equality Amendment Bill 2012 ( June 2012). Senate Legal and Constitutional Committee, Parliament of Australia, Marriage Equality Amendment Bill 2009 (November 2009). The 2012 Senate Committee received almost 80,000 submissions, of which approximately 59 per cent were in support of the bill. 188 In November 2013 the Same-Sex Marriage Bill 2013 (NSW) was rejected on a vote in the Legislative Council. See also NSW Legislative Council Standing Committee on Social Issues, Parliament of NSW, Same-Sex Marriage Law in New South Wales Report, 2013.

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Commonwealth v Australian Capital Territory.189 In doing so, the High Court of Australia (HCoA) held that the term ‘marriage’ in section 51(xxi) of the Constitution includes samesex marriage (see Chapter 3). The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.190

Prior to this case being determined one commentator had noted that given: the clear benefits that would arise from federal recognition, rather than ad hoc State or Territory recognition, a loss for the States in [any constitutional challenge] may end up being simply one more step on the path to achieving full equality at the federal level for lesbian, gay, bisexual and transgender Australians.191

This has proven to be the case, as Federal Parliament is now clearly empowered to include same-sex couples within the MA in the future.

4.2.3.3 Nullity A decree of nullity is a declaration by the court that there never was a marriage between the parties, and is different from a divorce order, which terminates a valid marriage. The only ground on which a decree of nullity can be granted is that the marriage is void (FLA section 51). The MA sections 23 and 23B set out the limited circumstances in which a marriage is void: (a) (b) (c) (d)

(e)

either of the parties is, at the time of the marriage, lawfully married to some other person; the parties are within a prohibited relationship; by reason of section 48 the marriage is not a valid marriage; the consent of either of the parties is not a real consent because: (i) it was obtained by duress or fraud; or (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or either of the parties is not of marriageable age.

Even after such a decree has been granted, the FLA will still apply (for example, to resolve financial disputes) as ‘marriage’ includes a ‘void marriage’ (FLA sections 71 and   4(2)). A decree of nullity does, however, enable the parties to avoid having to divorce before 189 Commonwealth v Australian Capital Territory [2013] HCA 55 (‘Commonwealth v ACT ’). Gaegler J recused himself because he had previously advised on the issue while at the bar. 190 Commonwealth v ACT [2013] HCA 55, [16]. 191 Luke Taylor, ‘Getting over It? The Future of Same-Sex Marriage in Australia’ (2013) 27 Australian Journal of Family Law 26. See also Sifris and Gerber, above n 131.

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remarrying. As a result, a large proportion of the cases involving applications for decrees of nullity occur in a cultural and/or religious context in which divorce is not regarded as acceptable.192 It has been argued that the strict approach to nullity in Australian law therefore has a disproportionate impact upon culturally and linguistically diverse communities.193

Either party is married to another party The position of polygamous marriages entered into in Australia is clear: the MA makes marriages void where one party was already married, whether or not a person is part of a culture or religion in which polygamy is recognised as a legitimate practice (MA section 23B(a)). In contrast, a wider range of marriages celebrated overseas—including some polygamous marriages—is recognised as valid under Australian law. Specifically, polygamous marriages entered into overseas are deemed to be marriages for the purposes of proceedings under the FLA (section 6): this means that, whether or not the marriage is recognised as valid, a party to it will have access to the courts under the Act. This is consistent with the provision that, for the purposes of Part VIII of the FLA (property, spousal maintenance and maintenance agreements: see Chapters 13 and 15), ‘marriage includes a void marriage’ (section 71). Thus, even a polygamous marriage entered into in Australia (which would be void) would provide the basis for proceedings under Part VIII. Recollect, however, that a void polygamous marriage may still qualify as a de facto relationship under the FLA section 4AA (discussed above, 4.2.1.1). Not a real consent Fraud The test for fraud is difficult to meet in the context of consent to marriage. Most cases have narrowly construed ‘fraud as to the identity of the other party (but not as to their attributes such as health status or motivations for the marriage) or as to the nature of that ceremony.’194 The high water mark in terms of a liberal interpretation of fraud arose in the early case of In the Marriage of Deniz,195 which concerned a man from Turkey who, while in Australia, married a young woman of Lebanese background in order to remain in Australia. The young woman had, ‘upon being informed of his reason for marrying her, suffered a nervous breakdown and attempted to commit suicide’.196 Justice Frederico drew on 192 The Family Law Council, Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds, 2012, above n 19, [2.2.11]. Over a decade earlier, the Family Law Council had proposed powers to civil courts to make a range of orders that it deems appropriate (including preventing a divorce order from being finalised) to encourage the other party to take all steps reasonably within their power to remove all barriers to the remarriage of the applicant in accordance with the customs and usages of the religious, ethnic or ethnoreligious group to which the applicant claims affiliation. The proposal stemmed from the Council’s concern that people can be effectively prevented from remarrying within their religion by their former spouse’s (usually the husband’s) refusal to grant them a religious divorce. This is a particularly significant issue in Islamic and Jewish communities. The recommendation was not implemented. Family Law Council, Cultural-Community Divorce and the Family Law Act 1975: A Proposal to Clarify the Law, Family Law Council, Canberra, 2001, . 193 ibid. 194 In the Marriage of Hosking [1994] FamCA 87; In the Marriage of: Osman and Mourrali (1990) FLC 92-111. 195 In the Marriage of Deniz [1977] FLC 90-252. 196 ibid., 76,354.

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statutory interpretation and on contractual and social policy arguments to hold that the marriage was void on the basis that the consent was not a real consent because of fraud. In contrast more recent cases have held that one partner entering into the marriage only in order to obtain citizenship without the knowledge of the other is not fraud for the purpose of this provision.197 In the recent case of Rick & King the husband applied for nullity for fraud on the basis that the wife had not disclosed that she was HIV positive. Justice Crooks denied the application, stating that: There is no question in this case that the husband married the women he thought he was marrying and the parties went through what they knew to be a valid marriage ceremony in Perth. The fact that the wife may have lied to and deceived the husband by not disclosing her medical condition in order to benefit financially from him, does not establish the necessary ground for nullity of his marriage.198

The Full Court (May, Thackray and Crisford JJ) dismissing the appeal affirmed this statement as an accurate and succinct summary of the law of nullity.199

Duress Renewed attention has also been paid to ‘duress’ in more recent times. Arranged marriages where the parties consent to the arrangement are unproblematic. There have, however, been a number of cases where women have applied for decrees of nullity on the basis that their consent was not present because of duress as a result of extreme family pressure or threats. In the Marriage of S 200 concerned an applicant who was born in Egypt and at age 16 went through a ceremony of marriage in Australia.201 Justice Watson wrote of the evidence about the marriage: ‘Accompanying photographs show no hint of joy, there is solemnity, disinterest, even tears.’202 Justice Watson interpreted the law on what was required to establish duress in a way that enabled him to grant the applicant a decree of nullity: The emphasis on terror or fear in some of the judgments seems unnecessarily limiting. A sense of mental oppression can be generated by causes other than fear or terror. If there are circumstances which taken together lead to the conclusion that because of  oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent.203

In that case the applicant was supported by her family, who had had a ‘change of heart’, and gave evidence on her behalf. However, the pressure of family or religious advisors has been held insufficient to meet the threshold of duress when applicants are mature, even when

Marquis & Marquis [2012] FamCA 137. Quoted on appeal Rick & King [2011] FamCAFC 220, [12]. Rick & King [2011] FamCAFC 220, [15]. In the Marriage of S (1980) 5 Fam LR 831. At that time the marriageable age without court consent (MA ss 11 and 12) for females was 16 (and 18 for males). This was changed in 1991 to 18 for both men and women: Sex Discrimination Amendment Act 1991 (Cth), s 12. 202 In the Marriage of S (1980) 5 Fam LR 831, 834. 203 ibid., 839. See also In the Marriage of Teves III and Campomayor [1994] FamCA 57, in which a decree of nullity was not granted in a context where the wife had alleged duress constituted by a history of domestic violence by the husband towards her in the lead-up to the marriage. 197 198 199 200 201

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they have the consent of their former partner and supporting evidence.204 In the recent case of Hallas & Kefalos205 a woman in her mid-30s with a major depressive illness was pressured into entering, and remaining in, an unhappy marriage, by her religious adviser. The court held that her illness and reliance on her adviser were insufficient to establish that her ‘will was overborne’.206 In contrast, younger applicants, both men and women, particularly those without economic independence, have been more successful in claiming that extreme family pressure establishes duress.207 In some cases coercion rather than pressure is more apparent. In Kreet & Sampir208 a young woman was involved in a relationship with a man who was disapproved of by her parents. The parents persuaded her to travel to India on the pretext that they would support a traditional marriage with her chosen husband, but once there they confiscated her passport and presented her to a marriage with another man. She submitted in the face of threats of violence to herself and the family of the man she was involved with. The court held that duress was established. There have also been cases where minors or protective services have sought protective orders from the family law courts to prevent forced marriages from occurring through, for example, the seizure of passports and orders to prevent parents from removing a child from Australia.209 In 2013 federal law was amended through the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth) to introduce a new form of criminal offence concerning causing or being a party to a forced marriage.210 This followed moves in the UK and a number of European countries including specific criminal provisions (as well as civil remedies) for forced marriages in recent years.211 The Criminal Code Act 1995 (Cth) section 270.7A(1) now includes a definition of forced marriage as follows: ‘if, because of the use of coercion, threat or deception, one party 204 In Swarapathan & Sangakkara [2012] FamCA 1071 the court refused to grant a decree of nullity to a Sri Lankan man who was pressured by his parents to marry a woman he had never met. Inconsistent accounts of how much advance notice he had of the wedding (one day, or none) combined with his age (30) and economic independence from his family led the court to find that there was no duress. 205 Hallas & Kefalos [2012] FamCA 860. 206 Contrast the broader approach in Robert & Golden [2011] FamCA 443 in which the applicant was granted a nullity on the basis that his only motivation for entering the marriage was that his partner refused to have a pregnancy terminated unless he married her. 207 In Nagri & Chapal [2012] FamCA 464 nullity was granted to the applicant who was in his 20s and financially dependent upon the uncle who had pressed the marriage. 208 Kreet & Sampir [2011] FamCA 22. 209 Department of Human Services & Brouker [2010] FamCA 742; Madley & Madley [2011] FMCAfam 1007. 210 Criminal Code Act 1995 (Cth) s 270.7B. The penalty is a maximum of four years’ imprisonment, or seven years for an aggravated offence. See Frances Simmons and Jennifer Burn ‘Without Consent: Forced Marriage in Australia’ (2013) 36 Melbourne University Law Review 970; Attorney-General’s Department, Government of Australia, Forced and Servile Marriages, Discussion Paper, 2011. 211 See Catherine Dauvergne and Jenni Millbank, ‘Forced Marriage as a Harm in Domestic and International Law’ (2010) 73 Modern Law Review 57. Many commentators and community groups in the UK are critical of the new criminal provisions as stigmatising and unhelpful: see, e.g., Nasreen Pearce and Asha Gill, ‘Criminalising Forced Marriage through Stand-Alone Legislation: Will It Work?’ [2012] May Family Law 534; Rosemary Hunter, ‘Constructing Vulnerabilities and Managing Risk: State Responses to Forced Marriage’ in Sharron A FitzGerald (ed.), Regulating the International Movement of Women: From Protection to Control, Routledge, Oxford, 2011.

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to the marriage (the victim) entered into the marriage without freely and fully consenting’. By virtue of subsection (2) ‘marriage’ includes both domestic and foreign marriages, as well as registered relationships. ‘Coercion’ is defined in s 270.1A to include: (a) force; (b) duress; (c) detention; (d) psychological oppression; (e) abuse of power; (f ) taking advantage of a person’s vulnerability.

It is suggested that this broad approach to coercion in forced marriage for the purposes of criminal law will also have an impact upon the interpretation of nullity in the family law context.

4.2.4 Divorce In Australia, the sole ground for granting an application for a divorce order212 is that ‘the marriage has broken down irretrievably’ (FLA section 48(1)), which is only established ‘if the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for a divorce order’ (FLA section 48(2)). It essentially allows one party to end a marriage (FLA section 49(1). However, to encourage reconciliation, the legislation provides that the parties may resume cohabitation for one period of up to three months and still count the period of separation prior to that resumption towards the twelve months (FLA section 50(1)). It is also clear that to meet the requirement of a 12-month separation the parties may be living separately and apart although they are living under the one roof (FLA section 49(2)). Much of the FLA case law on divorce dates from the early years of the FLA’s operation and dealt with the question of whether or not the parties could be said to have separated even though they were or had been living in the same dwelling. In essence, the legal test that developed involved comparing the relationship after separation with the relationship that existed before separation, as well as consideration of the subjective intentions of the parties. Disputes about whether the separation requirement in marriage has been met arose following the introduction of ‘no fault’ divorce213 but are now very rare, although the case law has also been held to be applicable to determining when a de facto relationship came to an end and has been applied in that context in a number of matters in recent years (see discussion above 4.2.1.2.1).

212 A divorce order has the effect of dissolving an otherwise valid marriage. Divorce orders used to take the form of a decree nisi, followed by a decree absolute, which normally was issued one month after the making of the decree nisi. This rather archaic language was abandoned in 2005, and the FLA now provides that a divorce order takes effect one month from the making of the order (or from the date of the making of the order under s 55A if that is later) (s 55). This period can be extended or reduced in special circumstances. 213 See Rosemary Hunter, ‘Decades of Panic’ (2005) 10 Griffith Review (online), .

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In Pavey, the Full Court quoted and adopted the reasoning of Watson J in In the Marriage of Todd (No 2):214 In my view ‘separation’ means more than physical separation—it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage—elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.215

The Full Court in Pavey emphasised the point that each relationship differs: As sec. 48 is concerned with the marriage of the parties, it is the content of their marital relationship which must be examined, not a definition of what a marital relationship ought to include. This, of course, does not mean that the various statements about the content of the marital relationship are useless. They do provide valuable checklists in each case, but they cannot be applied mechanically. If, during the marriage, the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship, then that aspect of their life may be of little importance in determining whether they have separated.216

The Full Court more recently considered these issues in Price & Underwood,217 involving a married couple who had been living in separate residences since ‘originally’ separating in 1991 and subsequently reconciling. The husband, who was terminally ill, applied for a divorce on the basis that they had been living separately and apart since 2005, while the wife said that she only became aware that the relationship was at an end in 2007. The wife succeeded in having the divorce order set aside on the basis that the husband’s intention to separate in 2005 was not communicated to her and, in the circumstances, could not be inferred on the basis of separate residences alone. Some provisions evidence more paternalism regarding the parties and concern for their children, namely: • FLA section 48(3): a divorce order should not be granted if the court believes there is a reasonable likelihood that cohabitation will be resumed; • FLA section 44(1B): for marriages of less than two years’ duration, the parties must undertake counselling before a divorce will be granted; and 214 215 216 217

In the Marriage of Todd (No 2) (1976) 9 ALR 401. In the Marriage of Pavey (Pavey) (1976) 1 Fam LR 11,358, 11,361. ibid., 11,362. Price & Underwood [2008] FamCAFC 46.

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• FLA section 55A: a divorce order does not take effect unless the court is satisfied that proper arrangements have been made for the care, welfare and development of children under the age of 18, or that there are circumstances that warrant the order taking effect in any case. In practice these processes have minimal impact, with the exception of section 55A. In In the Marriage of Maunder the court found that the trial judge had erred in granting a divorce ‘even though the Court was not satisfied that proper arrangements had been made for the care, welfare and development of the children’. The husband was living overseas and the wife contended that he was paying inadequate maintenance for the children. The declaration under section 55A was set aside by the Full Court, a result which presumably strengthened the wife’s bargaining position in relation to financial matters. Recently in Navarro & Jurado the Full Court confirmed that section 55A ‘is an integral part of the Australian divorce process and not to be treated as a mere formality’.218

4.3 Who is a parent? ‘Who is a parent?’ is a starting point establishing who has responsibility for a child’s welfare and financial support, and may also address the distribution of parental responsibility after separation in the absence of a court order to the contrary. It does not prevent non-parents from being granted parental responsibility by a court, nor does it stop parents from being deprived of it, in appropriate circumstances. ‘Who is a parent?’ is only ever the beginning and not the end of any properly child-centred inquiry regarding parental responsibility and parenting time given the paramountcy of the child’s best interests. Developments in family law have emphasised the ongoing links between parents and their children, which are said to exist and to continue irrespective of the relationship between the parents.219 So, for example, child support obligations and parental responsibility exist whether or not parents have ever lived together and continue after parents separate, subject to court orders. This has meant an increased emphasis on genetic fatherhood, at the expense of caregiving or social parenting. The current position is in contrast to earlier family law and policy, which was based on ideas of family centred around marriage and re-partnering in the event of marriage breakdown. So, in the early days of the FLA, the general expectation was that parents’ separation would bring about a significant change in the relationship between children and their father, to the extent that the father often would cease to see and support the children. He would often form a new relationship and a ‘new family’, while mothers not infrequently applied for step-fathers to adopt their children and change the child’s surname to cement this change.220 218 In the Marriage of Maunder (1999) 25 Fam LR 579; Navarro & Jurado [2010] FamCAFC 210, [43] (Thackray J). The Full Court upheld by majority the decision of a federal magistrate refusing to grant a divorce to a husband when the wife and child were resident overseas and there was contention both over child support and the care arrangements made for the child. 219 FLA ss 60B(2)(a), 61C(2). 220 See Helen Rhoades, ‘Children’s Needs and “Gender Wars”: The Paradox of Parenting Law Reform’ (2010) 24 Australian Journal of Family Law 160.

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From the late 1980s this paradigm began to shift. John Dewar and Stephen Parker have described this new era in family law as a ‘complex era’221 in which marriage was ‘displaced as the central concept linking law to families’.222 This was a result of a range of quite diverse factors. They included men’s dissatisfaction with situations produced by the earlier paradigm, the state wanting to reduce public financial support of sole-parent   (female)headed families, and concerns about children’s rights to proper support and contact with their parents. The introduction of the statutory child support scheme was probably the first significant marker of this change (Chapter 11), and was shortly followed by changes in child custody laws designed to promote continuing contact between fathers and their children (Chapter 6). The 2006 amendments further strengthened the importance of legal parentage through, among other things, a presumption that parental responsibility remains equally shared, the elevation to a ‘primary consideration of the benefit of a meaningful relationship with both parents’, and mandatory consideration of equal time or ‘substantial and significant’ time with both parents when the court proposes to make orders for equal shared parental responsibility.223 While the presumption operates between parents, orders for parental responsibility and parenting time can also be made in favour of a non-parent if in the best interests of the child (discussed below at 4.3.6), the design of the legislation is certainly more accommodating of disputes over children involving ‘parents’. Yet, strikingly, there is no overarching definition of ‘parent’ or ‘child’ in the FLA.

4.3.1 The ‘natural’ or ‘ordinary’ meaning Section 4 of the FLA provides rather minimally that parent ‘when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child’. Elsewhere there are specific provisions on assisted conception and surrogacy but it has remained a point of controversy in the court whether these provisions conclusively determine the meaning of parent in those circumstances or whether they may be overtaken by the ‘natural’ meaning (discussed below 4.3.1). In the 1999 case In the marriage of Tobin224 concerning foster parents whose legal relationship with the child had been formalised through state welfare orders granting parental responsibility but not adoption, the Full Court held that, for the purposes of the FLA, ‘parent’ should be given its ‘natural meaning’: the biological mother or father of the child. In taking this view, the Full Court considered various dictionary meanings of ‘parent’, and for FLA purposes took the view that the natural meaning of parent was ‘a person who has begotten or borne a child’.225 This case has not been overruled by the Court, although the FLA has been amended since to extend legal status to non-gestational and non-genetic parents in assisted conception and surrogacy. Indeed it would be hard to 221 John Dewar and Stephen Parker, ‘English Family Law since WWII: From Status to Chaos’, in Sandford Katz, John Eekelaar and Mavis Maclean (eds), Cross-Currents: Family Law and Policy in the US and England, Oxford University Press, Oxford, 2000. 222 ibid. 223 See FLA ss 60CC, 61DA, 65DAA, 65DAC, 65DAE. 224 In the Marriage of Tobin [1999] FamCA 446 (Tobin). 225 ibid., [42].

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answer the question of who a ‘natural’ or ‘biological’ mother is in the case of surrogacy where the intended mother is the genetic parent and the surrogate is the gestational parent. In the 15 years that have passed since Tobin other courts have revisited the question of ‘ordinary’ meaning of parent and broadened it considerably. This was evident in a case concerning a citizenship by descent application by an applicant whose social father was not a genetic parent, H v MIMA, in which the Full Federal Court held that: The word ‘parent’ is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way … This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do. Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough … Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the ‘parents’ of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own. The ordinary meaning of the word ‘parent’ is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning.226

It is important to note, especially in the context of transnational family creation through cross-border reproductive treatment or surrogacy, that Australian law determines the parentage of children, regardless of the laws in operation in the country of birth and irrespective of any birth documentation issued elsewhere (unless that documentation is expressly recognised through Australian legislation, which it currently is not).227

4.3.2 Presumptions, findings and declarations of parentage In a case where there are doubts about who is the biological father of a child, the place to begin is the set of rebuttable presumptions of parentage contained in the FLA. In summary, there is a presumption that if a child is born to a woman while she is married (section 69P) or while she is cohabiting with a man (section 69Q),228 if within 44 weeks of separation a child was born, it is the child of the woman and the man. There is also a presumption of parentage arising from the entry of a person’s name as a parent of a child in a register of

226 H v MIMA [2010] FCAFC 119, [128]–[130]. 227 See discussion in Carlton & Bissett and Anor [2013] FamCA 143 and Re Mark [2003] FamCA 822. Under the FLA s 69S there are both rebuttable (s 69S(1A)) and conclusive presumptions (s 69S(1) in conjunction with s 69U) of parentage arising from the finding of a court. However, these presumptions only operate if an overseas jurisdiction is prescribed in the regulations or is a reciprocating jurisdiction. No overseas jurisdiction is prescribed for the purpose of s 69R nor for s 69S(1). Under the s 69S(1A) rebuttable presumption, several jurisdictions are prescribed under the regulations (directed largely towards international child maintenance and Hague Abduction Convention cases, but not expressly limited to these purposes). 228 In Vakros & Letsos [2012] FamCAFC 40, [53]–[56] the Full Court (May, Ainslie-Wallace and Murphy JJ) held that this presumption does not apply to non-cohabiting sexual relationships.

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birth (section 69R), from findings of courts (section 69S), and from a man’s execution of an instrument acknowledging that he is the father of a child (section 69T). All of these presumptions, with the exception of section 69S(1), are rebuttable by proof on a balance of probabilities (section 69U(1)). If two or more presumptions are in conflict and some of them are not rebutted in proceedings, the presumption that appears to the court to be the most likely prevails (section 69U(2)). Thus rebuttal may occur through a ‘parentage testing procedure’ (discussed below), evidence of other facts (such as nonconsent of a partner to assisted conception under section 60H(1)229) or by the operation of other provisions in the Act, such as section 60H(1) in cases of gamete donors and section 60HB for intended parents in surrogacy.230 There has been remarkably little detailed judicial consideration of the presumptions, which have generally been invoked in surrogacy matters in which the operation of the relevant provisions have not been thoroughly tested by reason that the proceedings have all been undefended (discussed below at 4.3.5). The only presumption that is not rebuttable is provided in section 69(1), which provides that if a prescribed court has, during the lifetime of a person, ‘found expressly’ that a person is a parent of a particular child or made a finding that could not have been made unless that person was a parent of a particular child (section 69(1)(a)(i) and (ii) and the finding has not been altered, set aside or reversed (section 69(1)(b)) the person is conclusively presumed to be a parent of the child. Section 69(3) provides that for the purposes of the section ‘prescribed court’ means a federal court, a court of a state or territory or a court of a prescribed overseas jurisdiction.231 The court may simply make a finding that a person is a parent for the purposes of proceedings. It may also make a ‘declaration’ that a person is a parent under section 69VA. Such a declaration is conclusive evidence of parentage for the purposes of all laws of the Commonwealth (although most usually invoked for the purposes of child support: see Chapter 11). A declaration may be made on the basis of inferences drawn as a result of a failure to comply with a parentage testing procedure under section 69W (discussed below).232 The main area of contention concerning the interpretation of section 69VA arises in circumstances of assisted conception where legal and genetic parentage may differ. This has resulted in conflicting decisions concerning whether a declaration may be made in favour of a person who is a legal parent but not a genetic parent,233 and conversely whether a declaration may be made in favour of a genetic parent who is not a legal parent. 229 In P & P (1997) 141 FLR 214 a husband who was not the genetic father was listed on the birth register and the Court held that s 69R was rebutted by the operation of the old s 60H because he had not consented to the conception attempt. 230 For example in Re Michael [2009] FamCA 691 the genetic father in a surrogacy arrangement was listed on the child’s birth certificate in NSW and the FCA held that any presumption under s69R was rebutted by the new s 60H(1). 231 ibid. 232 Brianna & Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ) (Brianna). 233 In Aldridge & Keaton [2009] FamCAFC 229, [19] (Bryant CJ, Boland and Crisford JJ) the Full Court expressed a view in obiter that s 69VA is limited to biological parentage. See also Simpson & Brockmann [2009] FamCAFC 73, although that case was complicated by the fact that the declaration was only sought on appeal and not in the original application. A contrary view was expressed by Faulks DCJ in Maurice & Barry [2010] FamCA 687, [16].

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In Simpson & Brockmann the Full Court (Warnick, May and Barry JJ) refused to make a declaration of parentage by consent for the purposes of proceedings at appellate level concerning lesbian parents who were each the birth mother of one child to the relationship (the application arose because section 60H had been amended after the first instance decision had been rendered). Warnick J stated of section 69VA:234 I am not satisfied that the power to make a declaration as to parentage in that section in fact applies to circumstances that present here, where there is no issue about the parentage of either of the children. It is well known who the mother is of each child. It is not known who the donor of sperm was, but it is known that it was the same male person in each case. Nothing contended to be any other way. The issue here is not about parentage, but the position or description which each of the mothers’ wishes to adopt in relation to the child of the other mother for the purpose of parenting orders. That is not the same as the determination of an issue about parentage.

With respect, this statement incorrectly characterises the issue as one of the mothers’ subjective description of their roles, when the status of parent under the FLA (and through all Commonwealth law through section 69VA) is of considerable importance. Parentage broadly, not just genetic parentage, reaches beyond inter partes issues, and is one of wider legal and social significance.235

4.3.3 Parentage testing An order to test for parentage (which in all cases to date has been of paternity) may be made under section 69W if ‘the parentage of a child is a question in issue’ (section 69W(1)). This requires there to be some reasonable basis to doubt that established paternity is correct; the court will not make a testing order simply on request.236 An order may be made on the initiative of the court or, on the application of a parent, of an independent child lawyer (ICL) (section 69W(2)). The court also has the power to order testing to be carried out on a person, usually those alleged or claiming to be the parents of the child and the child themselves, but also on anyone else if testing of that person might be relevant to ascertaining parentage.237 If a person refuses to comply with a testing order, the court may ‘draw such inferences from the contravention as appear just in the circumstances’ (section 69Y(2)) including making a finding that a person is a parent.238 Simpson & Brockmann [2009] FamCAFC 73, [7]–[8] (emphasis added). To paraphrase, and modernise, Fogarty J from G & H [1993] FamCA 39. Brianna [2010] FamCAFC 97, [169]. FLA s 69W. See also ss 69Z, 69ZA, 69ZC, 69X. Tests must be conducted within the framework set out in the Family Law Regulations 1984, Part IIA. 238 As occurred in Tryon & Clutterbuck (No 2) [2009] FamCAFC 176, [966] (per Finn, Warnick and Strickland JJ). In G v H (1994) 181 CLR 387; [1994] HCA 48 the High Court held that any inference will depend on the circumstances of the case and must be consistent with the evidence and findings. Two different inferences may be drawn, relating (1) to the state of mind of the refusing party, and their motives for refusal; and (2) to paternity itself. On the second issue, the inferences a court may draw are not governed, as some inferences are, by a process of strict legal reasoning, but by what is consistent with, and reasonable in the light of, the known facts. Given that a test is capable of putting the matter of paternity beyond doubt, a refusal permits the inference to be drawn that the refusing party is more likely than not the parent of the child. 234 235 236 237

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Regulation 21C of the Family Law Regulations provides that a parentage testing procedure under the Act includes involving red cell antigen blood and enzyme grouping, HLA tissue typing, testing for serum markers or DNA typing. DNA typing is highly accurate, and less invasive than a blood test as it can involve a simple cheek swab.239 The regulations also provide for the proper process to be followed including nominated reporters and services prescribed under the regulations.240 Until 2012 there were divergent views as to whether an order under section 69W was a ‘parenting order’ under the Act and therefore whether the ‘paramountcy principle’ applied,241 although the Full Court (Bryant CJ, Finn and Thackray JJ) in Brianna held that a consideration of the child’s best interests will be relevant to the determination of whether or not to make an order for testing regardless of this issue. Since 2012 section 64B(1) provides that a declaration or order under Subdivision E of Division 12 (that is, parentage testing or a declaration of parentage) is not a parenting order.242 The Full Court in Brianna suggested that making such an order in circumstances of doubt as to paternity will usually be in the child’s best interests as the courts ‘have recognised the interests which all children have in knowing their true parentage’.243 Thus the Full Court upheld the making of a testing order even though it was opposed by the wife on the basis that the child (who was 12 years old by the time of the appeal) was unwilling to participate in testing. Moreover in that case the test offered only the possibility of removing paternity from the man the child thought of as his father, without the prospect of any other man being so identified.244 Sociologist Lyn Turney notes that, traditionally, contested paternity occurred in cases of accidental pregnancy in casual or unstable relationships, but that it now also arises in the context of married or cohabitation family forms. She argues that as a result of the wide availability of commercial DNA testing, which is promoted as a means to stop ‘paternity fraud’, ‘there has been a dramatic shift in emphasis from the errant father to the “deceiving mother” and a move away from traditional court ordered tests to individually motivated tests to absolve parental obligation’.245

239 Richard Chisholm notes that this has made unauthorised testing easier and likely more common in ‘Parentage: Some Testing Problems’ (2010) 24 Australian Journal of Family Law 242. 240 On the importance of compliance, in particular to ensure accurate parentage records in cases of international surrogacy, see Ellison and Anor & Karnchanit [2012] FamCA 602, [29]–[30]; Mary Keyes and Richard Chisholm, ‘Commercial Surrogacy: Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105. 241 Not least of all because of the chicken-and-egg nature of trying to apply s 60CC to the question of testing if one does not know whether a person is a parent: see Richard Chisholm, above n 239. 242 As amended by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Sch 2, 17. 243 Brianna [2010] FamCAFC 97, [175]. Although see a contrary view in Carol Smart, ‘Law and the Regulation of Family Secrets’ (2010) 24 International Journal of Law, Policy and the Family 397. 244 Although see Hadley & Pock [2011] FMCAfam 117 in which Roberts FM declined to make parentage testing orders concerning one child in a case where the four children lived with the father, there were doubts about the credit of the mother (who had serious mental health issues) and the experts were concerned about the impact upon the child of such testing. 245 Lyn Turney, ‘The Denial of Paternity: Pregnancy as a Risk to the “Pure Relationship”’ (2011) 45 Sociology 1110, 1111.

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In providing a typology of cases involving paternity testing in the US, bioethicist Gregory Kaebnick argues that paternity testing ‘encourages us to suppose that a parental relationship to a child is fundamentally a genetic relationship, or at least necessarily includes a genetic relationship.’246 Testing also encourages us to suppose that a parental relationship can be re-assessed years or decades after the parties in the relationship thought it was established.247 In relation to the best interests principle, paternity testing in contested hearings is frequently used by one parent to bring about a preferred outcome, rather than to discover whether a parental relationship exists.248 We will discuss these issues further in 9.5.4, ‘Putative fathers’.

4.3.4 Parentage in assisted conception Both state law and the FLA make specific provision for parentage in situations of assisted conception such as the use of donor sperm through a clinical procedure of intrauterine insemination or informal home insemination, or the use of donor sperm, eggs or donated embryos through IVF (all of which have been interpreted as included in what is still referred to in the FLA as ‘an artificial conception procedure’: section 4(1)).249 The position of married heterosexual parents conceiving through the use of donor sperm was regularised in the late 1970s and early 1980s across states laws, and this was later extended to heterosexual de facto couples and to donor eggs in the 1990s, and, finally, in the 2000s to lesbian de facto couples. Legal parentage is based on the fact that the birth mother and her consenting partner are the legal parents of the child, regardless of genetic connection. This status operates from birth and occurs automatically.250 While the original state and territory laws differed in their wording, they reflected the decision in 1980 of the Standing Committee of Commonwealth and State AttorneysGeneral on uniform legislation on the status of children born as a result of ‘artificial insemination’. The Standing Committee agreed that the legislation should provide that: • • •

a husband who consents to his wife being artificially inseminated with donor sperm shall be deemed to be the father of any child born as a result of the insemination; the sperm donor shall have no rights or liabilities in respect of the use of the semen; and any child born as a result of AID (artificial insemination by donor) shall have no rights or liabilities in respect of the sperm donor.251

246 Gregory Kaebnick, ‘Natural Father: Genetic Ties, Marriage, and Fatherhood’ (2004) 13 Cambridge Quarterly of Healthcare Ethics 49, 49–50. 247 ibid. 248 ibid., 51. 249 In Re B & J [1996] FamCA 124; (1996) 21 Fam LR 186, 191, Fogarty J found that ‘there is no warrant to read that term down to cover only cases of authorised insemination carried out in conformity with relevant State or Territory law’. Thus, self-administered insemination is included within the meaning of ‘artificial conception procedure’. Through this chapter the contemporary terminology of ‘assisted’ is used in preference to ‘artificial’. 250 The current legislation is: Status of Children Act 1996 (NSW) s 14(4); Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1978 (Qld) s 17(3); Status of Children Act 1974 (Vic) s 10C(3); Artificial Conception Act 1985 (WA) s 6(1); Status of Children Act 1978 (NT) s 5D(2); Family Relationships Act 1975 (SA) s 10D(1). 251 Cited in Re B & J [1996] FamCA 124; (1996) 21 Fam LR 186, 192.

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4.3.4.1 According parental status In 1983 the FLA was amended to ascribe parental status to the husband of a birth mother only if state and territory provisions already did so.252 This provision was repealed and replaced in 1987 with a new section (originally numbered section 60B, later 60H), which ascribed parental status to the husband or male de facto partner of a birth mother either on the basis of his consent or due to prescribed state and territory laws for children born through assisted reproduction.253 Since 2008 section 60H(1) includes a female de facto partner of a birth mother such that a child born through assisted conception now has two female parents in these circumstances.254 Thus in cases of assisted conception the child is the child of the woman who gives birth and her partner for the purposes of the FLA, regardless of genetic link, if: • the couple are married or in a de facto relationship at the time of the conception attempt (section 60H(a)); • the partner consented to the conception attempt; such consent is presumed (section 60H(5)) but can be rebutted on the balance of probabilities by contrary evidence.255 Both the provisions were inserted in 1983 and the amendments passed in 2008 operate retrospectively—that is, they cover children who were conceived prior to the enactment. This has led to some contention in cases involving lesbian-led families where a parental role had not necessarily been envisaged by the women.256 In Aldridge & Keaton, the first case in which a female partner had argued that she was a parent under the FLA following the amendments, the applicant was excluded from section 60H(1) on the basis that the relationship between the women was not a de facto relationship at the time of conception.257 The case was appealed on the question of time with the child but not on the application of section 60H(1). However, the wording of this provision in making a child ‘the child of a person’ rather than specifying that the person was a ‘parent’ was remarked upon in obiter by the Full Court (Bryant CJ, Boland and Crisford JJ) as follows: Section 60H uses the expression ‘person’ and ‘other intended parent’ not ‘parent’ …

252 Family Law Amendment Act 1983 (Cth) s 4 inserting a new s 5A into the then FLA. For discussion of the background, see Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, IVF and the Status of Children, Parliamentary Paper 493/1985, 1985. 253 By virtue of the Family Law Amendment Act 1987 (Cth) s 24. 254 See discussion in Connors & Taylor [2012] FamCA 207. 255 See Marriage of P and P [1997] FLC 92–790. 256 See, e.g., Harris & Calvert [2013] FCCA 955. Neville J quoted with approval the statement by the Full Court in Aldridge that ‘[t]he fundamental issue … is when it is, or is not, appropriate for a person with no biological connection to a child to have a parenting order made in his or her favour’. Because the applicant had not seen the child (now aged four) for two years the court held that the threshold question in s 65C was not satisfied. There was no consideration given to whether the applicant was a parent under s 60H(1). 257 Aldridge & Keaton [2009] FMCAfam 92. See critical discussion in Jenni Millbank, ‘De Facto Relationships, Same-Sex and Surrogate Parents’, above n 79; see also Richard Chisholm, ‘Did the 2006 Amendments Downgrade Non-Parents? Aldridge v Keaton’ (2010) 24 Australian Journal of Family Law 123.

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We think from reading the Senate report, it was intended that following amendments to s  60H that children … regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex co-parent), as biological children born to men and women who have been legally married, living in a de facto relationship or who have never lived together. We are not sure the legislation has had that effect … further legislative amendment may be necessary to clarify the non-biological person’s status as a parent.258

No such doubts had previously been expressed about the operation of the section in relation to male partners over the preceding 25 years. Because the issue was not agitated on appeal these remarks were not binding on subsequent cases in lower courts. In a subsequent decision involving lesbian parents, Faulks J considered this statement and responded: The drafting may fall short of ideal. It is difficult to imagine a man (or person) on an ACTION Bus (let alone a man on the Clapham Omnibus) responding other than positively to a question about whether if a child was a child of a person that person was not the child’s parent.259

Later cases have followed Faulks J’s approach to hold that a female partner is ‘recognised as a parent’ by virtue of section 60H(1).260

4.3.4.2 Severing the status of donors It is significant that this section of the FLA does not completely mirror the state and territory Acts. Unlike the matrix of state and territory laws that both sever the link to donors and accord parental status to the birth mother and her partner, the FLA only included the according of status to the genetically unrelated parent and did not include provisions severing the relationship with the genetic parent. Although the section referred to state law it did not clearly pick up, through prescription in the Family Law Regulations 1984 (Cth), all of the relevant state provisions. This led to debate as to whether, for the purposes of the FLA, the court was limited to the section 60H definitions when the child was conceived through assisted conception or whether it could also recognise ‘natural’ or ‘ordinary’ male genetic parents/sperm donors as legal parents under what became known as the ‘enlarging’ approach to interpreting ‘parent’ under the FLA. For 15 years there were varied and inconsistent judicial interpretations of section 60H. These arose in two contexts: cases concerning the parental status of known sperm donors/ biological fathers in relation to children being raised by lesbian parents and cases where genetic fathers in surrogacy arrangements claimed parental status in relation to children being raised by themselves and the other intended parent. In short, judgments took two paths: on the one hand treating section 60H as exclusively defining the parents of assisted conception children in the FLA and reading it consistently with state parentage provisions 258 Aldridge & Keaton [2009] FamCAFC 229, [18], [22]. Richard Chisholm, above n 257. 259 Maurice & Barry [2010] FamCA 687, [15]. 260 See in particular Connors & Taylor [2012] FamCA 207, [85]–[89] (Watts J).

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(the ‘exclusive/consistent’ approach261) and, on the other hand, those characterising section 60H as merely ‘adding’ to the categories of natural and adoptive parent under the FLA in a manner that was inconsistent with state parentage laws (the ‘enlarging’ approach).262 The original disagreement between the judges in the surrogacy case of Re Mark263 and the lesbian parent and known sperm donor case of Re Patrick264 as to whether the FLA allows for an ‘enlarging’ approach to who is a legal parent in assisted conception265 was overtaken by legislative amendment.266 In 2008, section 60H(1)(d) was amended to clarify that a ‘provider of genetic material’ is not a legal parent unless they are the consenting partner of the woman who gives birth. The 2008 amendments also included for the first time a specific section on surrogacy, section 60HB, which provides that the intended parents through surrogacy are the parents of a child under the Act if there is an order of a court to that effect made under prescribed state law (discussed below). Thus, if the cases were re-heard today, neither the genetic father from Re Mark nor Re Patrick would be able to argue that he is a legal parent under the current Act because the mother in both cases had a partner. While some state legislation expressly spelt out the relationship between parentage laws on assisted conception and surrogacy provisions,267 the FLA amendments did not do so. The legislative drafting is thus arguably still not crystal clear because the ‘severing’ provision was included in a subsection that refers specifically to a mother who is married or in a de facto relationship. Section 60H has a complex and repetitive structure: subsection (1) refers to a woman who is married or in a de facto relationship and determines whether the child is a child of the woman and her partner by reference to both the wording of the Act and prescription of state law;268 subsection (2) refers to a woman and determines whether the child is the child of that woman; and subsection (3) refers to a woman and whether the child is the child of a man. Subsections (2) and (3) operate by prescription of the state law on point,269 whereas subsection (1) in a ‘belt and braces’ approach operates 261 In W v G [1996] NSWSC 43; Re Patrick [2002] FamCA 193. See, e.g., Danny Sandor, ‘Children Born from Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination’ (1997) 4 Australian Journal of Human Rights 175; Dorothy Kovacs, ‘The AID Child and the Alternative Family: Who Pays? (or Mater Semper Certa Est—That’s Easy for You to Say!)’ (1997) 11 Australian Journal of Family Law 141; Adiva Sifris, ‘Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples’ (2004) 30 Monash University Law Review 229; Aleardo Zanghellini, ‘Who Is Entitled to Parental Responsibility? Biology, Caregiving, Intention and the Family Law Act: A Jurisprudential Feminist Analysis’ 35(2009) Monash University Law Review 147. 262 In Re B & J [1996] FamCA 124; Re Mark [2003] FamCA 822. 263 Re Mark [2003] FamCA 822. 264 Re Patrick [2002] FamCA 193. 265 See Jenni Millbank, ‘Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy’ (2013) 27 Australian Journal of Family Law 135; Adiva Sifris, ‘Known Semen Donors: To Be or Not To Be a Parent’ (2005) 13 Journal of Law and Medicine 230. 266 Inserted by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 3. 267 See, e.g., Status of Children Act 1974 (Vic) s 19 expressly providing that the parentage provisions apply to surrogacy (but do not prevail over a substitute parentage order from the state court). 268 See, Family Law Regulations 1984 (Cth) reg 12C. 269 All relevant state and territory laws are prescribed under sub-reg (2): Family Law Regulations 1984 (Cth) reg 12CA. There are no laws prescribed under sub-reg (3) (child of a man), perhaps because under state law a male gamete provider who is not in a relationship with the birth mother is never the parent.

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either by reference to the consent of the partner or by prescription of the state law on point (which also requires consent of the partner). In a piece of particularly poor drafting, the 2008 amendment explicitly severing parental status of a gamete provider was inserted into subsection (1) rather than included as an overarching provision. Thus, despite the fact that subsections (2) and (3) only operate by reference to state law (which does conclusively sever a gamete provider’s legal status) it is technically possible to characterise the severance as not applicable to single women, with the result that a sperm donor retains parental status in the FLA in that limited circumstance. Commentators have argued that the intention of the 2008 reforms—to provide that if there is the provision of egg or sperm to a woman otherwise than via sex, it is the birth mother and her partner who are legal parents, and in cases of surrogacy that a state-based transfer process must be undertaken—is manifest.270 Yet, following the 2008 amendments, differently constituted courts have continued to make contrary findings about whether the male genetic parent who undertakes an assisted conception arrangement with a single woman is a parent under the FLA,271 including in two separate cases concerning the same family.272 Later in Ellison and Anor & Karnchanit, a case concerning an international surrogacy arrangement involving assisted conception, Ryan J made a declaration under section 69VA that the male genetic parent was a legal parent for the purposes of all Commonwealth law.273 More recently, however, Ryan J doubted the correctness of her decision on this point in Ellison and revisited her interpretation of sections 60H and 60HB, concluding in Mason & Mason that a genetic parent in surrogacy via assisted conception could not be found or declared to be a legal parent under the FLA: the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage. The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act, the provisions of the Act do not permit this Court to make a declaration of parentage in his favour. Thus, on reflection, I am inclined to respectfully agree with Watts J in Dudley and Anor & Chedi [2011] FamCA 270 Jenni Millbank, ‘Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy’ (2013) 27 Australian Journal of Family Law 135. 271 For example, the Court has held that a male genetic parent in a surrogacy arrangement involving assisted conception is not a parent under the FLA in decisions by MacMillan J in Gough and Anor & Kaur [2012] FamCA 79 and Watts J in Re Michael: Surrogacy Arrangements [2009] FamCA 691. In two other cases Watts J declined the applicants’ request to make a finding that the genetic father was a parent under the FLA: Findlay and Punyawong [2011] FamCA 503; Dudley and Chedi [2011] FamCA 502. Justice Ryan held to the contrary that a male genetic parent is a legal parent in Ellison & Anor & Karnchanit [2012] FamCA 602 (Ellison); as did Stevenson J in Dennis & Pradchaphet [2011] FamCA 123; Louglan J in Collins & Tangtoi [2010] FamCA 878; and Ainslie-Wallace J in O’Connor & Kasemsarn [2010] FamCA 987, and see in the Family Court of Western Australia, Blake & Anor [2013] FCWA 1. Most recently, Justice Ryan, in a considered decision, reversed her view to agree with the reasoning of Justice Watts from Re Michael in Mason & Mason [2013] FamCA 424. 272 Dudley and Dennis concern the same intended parents (differently named by the court’s annonymisers), with children born to different surrogates. 273 Ellison [2012] FamCA 602. See also Carlton & Bissett and Anor [2013] FamCA 143.

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502, where at [29] his Honour determined that ultimately state law will govern the determination of parentage [of children born under surrogacy arrangements] and that state law will be recognised by federal law.274

In the case of Groth & Banks concerning a known sperm donor and a single mother handed down four days after Ryan J’s judgment in Mason, Cronin J applied the enlarging approach and went further than any previous decision to hold the provision of Victorian state law severing parental status for sperm donors inoperative by virtue of section 109 inconsistency (Chapter 2) with the federal FLA.275 This approach would also encompass sperm donors who had no involvement with the child and even unknown donors who were later identified, for example donors with whom a mother has made contact via her clinic’s voluntary contact system in order to satisfy her own or her child’s curiosity or need for more information.276 Single mothers by choice through assisted conception are therefore rendered extremely vulnerable by the enlarging approach. The authors submit that this approach is both incorrect in law and undesirable for policy reasons, as many thousands of single women in Australia who have utilised donor sperm in an assisted conception procedure under the belief that they are the only parent would suddenly have a legal father to their child despite the provisions of state law in place for decades that clearly severed such status. The considerable uncertainty around the status of male genetic parents in assisted conception processes when the mother was unmarried is one of the matters addressed by the Family Law Council Inquiry into parentage and assisted conception.277 The report is not public at the time of writing, nor is the government response known. Contrasting the approaches taken to different kinds of social and genetic parents, such as comparing cases involving female non-genetic parents and male parents (both as genetic parents/sperm donors and social/putative fathers in mistaken paternity matters) illuminates what has been described as an implicit bias or prioritising of heteronormative parenthood.278 That is, it is not just that genetics that is being prioritised over social function, but rather that a particularly gendered version of parenthood is at play.279 This gendered 274 Mason & Mason [2013] FamCA 424, [33]–[34]. 275 See Groth & Banks [2013] FamCA 430. In the authors’ view this is wrongly decided, not least of all because there is no textual provision in the FLA granting sperm donors ‘a right … that the state legislation … seeks to deprive’ such that ‘the Acts are, therefore, directly inconsistent’: Groth & Banks [2013] FamCA 430, [38]. Rather, there is much in the text and structure of the s 60H provisions as well as the legislative materials suggesting efforts at consistency and deference to the state regimes. 276 In Re Mark [2003] FamCA 822 the court rejected this policy concern as a reason, and comments in obiter dicta adopted the enlarging approach. Recent research into single mothers by choice indicates that they are in fact the most likely group to make such contact: see, e.g., T Freeman, V Jadva, W Kramer and S Golombok, ‘Gamete Donation: Parents’ Experiences of Searching for their Child’s Donor Siblings and Donor’ (2009) 24 Human Reproduction 505; D Beeson, PK Jennings and W Kramer, ‘Offspring Searching for Their Sperm Donors: How Family Type Shapes the Process’ (2011) 26 Human Reproduction 2415; Cheryl Fletcher, The Stories of Australian Single Mothers by Choice Through Donor Conception (PhD Thesis, UNSW, 2013). 277 Attorney-General’s Department, Australian Government, Family Law Council Terms of Reference, June 2012, . 278 See Susan B Boyd, ‘Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility’ (2007) 25 Windsor Yearbook of Access to Justice 63; Catherine Donovan, ‘Who Needs a Father? Negotiating Biological Fatherhood in British Lesbian Families Using Self-Insemination’ (2000) 3 Sexualities 149. 279 See Aleardo Zanghellini, above n 71.

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application  of understandings of the role of genetics in parenthood also appears quite prominently in surrogacy matters in which male genetic parents have not infrequently been held to be parents by courts, despite the operation of assisted reproduction provisions, while genetic mothers have never been held to be parents.

4.3.5 Parentage in surrogacy The woman who gives birth to a child is a legal parent to that child under Australian law, regardless of whether she is a genetic parent or any arrangement that she has entered into about the future parenting of that child. As most surrogacy arrangements involve assisted conception procedures, the discussion above applies to parentage in this context also, regardless of whether one or both of the intended parents is a genetic parents. State and territory assisted conception parentage rules make it clear that the genetic father of a child in surrogacy is not a legal parent, although ambiguity continues on this point under the FLA if the surrogate is not a member of a couple. As discussed above the ‘enlarging’ interpretation of the ‘natural’ and ‘ordinary’ approach to parenthood has been applied on occasion in relation to male parents in surrogacy arrangements with a surrogate who has no married or de facto partner. It is noteworthy that the enlarging approach cannot now be applied when the surrogate is partnered,280 nor has it ever been applied to find that a female genetic parent is a parent under the FLA. Millbank states that: The discriminatory consequences of this approach are largely masked in the context of consent applications to the Family Court in which female intended parents support their male partner’s application for parental status and either make do with parental responsibility or utilise his status to access the avenue of step parent adoption.

A specific section on surrogacy, section 60HB, which was inserted in the FLA in 2008 to provide: (1)

If a court has made an order under a prescribed law of a State or Territory to the effect that: (a) a child is the child of one or more persons; or (b) each of one or more persons is a parent of a child; then, for the purposes of this Act, the child is the child of each of those persons.

All state and territory jurisdictions except the NT have such parentage transfer regimes and all are now prescribed in the Family Law Regulations.281 Through the 2000s all states and territories (except the NT) introduced specific parentage transfer regimes for parentage in surrogacy with a complex and varied range of procedural and substantive requirements.282 Some states, for example, exclude intended parents based on their relationship or fertility status, while others limit the ages of surrogates or mandate particular genetic relationships 280 See, e.g., the declaration of parenthood by Cronin J in a known donor case involving a single mother in Groth & Banks [2013] FamCA 430 not applied by the same judge in a surrogacy case where the surrogate was married: Fisher-Oakley & Kittur [2014] FamCA 123. 281 See Family Law Regulations 1984 (Cth) reg 12CAA. 282 Parentage Act 2004 (ACT) divs 2.4–2.5; Surrogacy Act 2010 (NSW) pt 3; Surrogacy Act 2010 (Qld) ch 3 pt 2; Family Relationships Act 1975 (SA) pt 2B div 3; Surrogacy Act 2012 (Tas) pt 4; Status of Children Act 1974 (Vic) pt 4; Surrogacy Act 2008 (WA) pt 3. Discussed in Jenni Millbank, ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’ (2011) 35 Melbourne University Law Review 165.

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(such that one intended parent must be related to the child, and the surrogate may not be). In general these laws require that parties have undertaken certified counselling, obtained independent legal advice, entered into a written agreement and sought order from the court on a consensual basis within a specified period after the birth of the child. Thus if intended parents undertake a domestic surrogacy arrangement with a surrogate whom they do not compensate above reasonable expenses and comply with all of the requirements of the relevant state surrogacy law, they are able to have parentage transferred from the surrogate (and her married or de facto partner if any) to themselves through a court process at state or territory level. A number of such orders have been made in recent years,283 although there still appears to be a greater number of surrogacy births than orders sought,284 suggesting that there are still some parents who do not regularise their legal status in this way.285 All state and territory surrogacy parentage transfer regimes exclude commercial arrangements from eligibility and many also exclude arrangements where the conception was undertaken outside of the jurisdiction.286 They therefore all exclude international commercial surrogacy arrangements, which poses considerable challenges for Australian law as intended parents seek to regularise their status and access legal protections for their parent–child relationship. This is one of the reasons that there has been a plethora of applications in the family law courts for declarations of parentage in recent years by male genetic parents and for parental responsibility orders for both intended parents concerning international commercial surrogacy arrangements. All of these cases have been undefended proceedings to date, and in most there is no appearance and limited evidence given by the surrogate mother (who is, on any view, a legal parent and, on one view, the only legal parent in the proceedings). In Ellison Ryan J set out detailed guidelines for a ‘best practice’ approach in making parenting orders (including parental responsibility) in cases involving international surrogacy arrangements. Her honour noted that: The position of the birth mother requires close attention to ensure that she has given free and informed consent and has not been subjected to exploitation, coercion or undue influence and that her rights have been adequately protected. This can be problematic in cases that involve cross-border arrangements in which the birth mother may be difficult to locate and in which there may be complexities with communication.287

283 See, e.g., Application by JSC & RSC [2013] NSWSC 440; C & B [2013] NSWSC 254; Application MJC and CSC; re EMC [2012] NSWSC 1626; MM and KF [2012] NSWSC 44; BLH & HM v SJW & MW [2010] QDC 439. 284 In 2010, there were 16 recorded surrogacy births within Australia as a result of regulated IVF treatment; this does not include surrogacy through informal conception nor births overseas: A Macaldowie, Y Wang, G Chambers and E Sullivan, Assisted Reproductive Technology in Australia and New Zealand 2010, Australian Institute of Health and Welfare, Canberra, 2012, p 45. The Department of Immigration and Citizenship estimates that it granted 420 applications for citizenship by descent to children born overseas through surrogacy between 2008 and 2012: cited in Jenni Millbank, above n 270, p 136. 285 See also Marilyn Crawshaw, Eric Blyth and Olga van den Akker, ‘The Changing Profile of Surrogacy in the UK: Implications for National and International Policy and Practice’ (2012) 34 Journal of Social Welfare and Family Law 267. 286 See Mary Keyes, ‘Cross Border Surrogacy Agreements’ (2011) 26 Australian Journal of Family Law 28. 287 Ellison [2012] FamCA 602, [132].

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Thus the Court summarised appropriate safeguards as including: • • •

•

•

•

An ICL to represent the child’s interests; Affidavit evidence of the applicant(s) and the surrogate addressing the surrogacy agreement and subsequent arrangements for the care of the child; Independent evidence regarding the identification of the child including the ­surrogacy agreement, a certified copy of the child’s birth certificate, parentage ­testing in accordance with the Regulations and evidence of citizenship;288 Independent evidence concerning the surrogate mother from a Family Consultant or an independent lawyer including confirmation that: ++ she received legal advice and counselling prior to entering into the surrogacy arrangement; ++ the surrogacy arrangement was made with her informed consent and entered into before the child was conceived; ++ after the birth of the child, her views about the orders were sought, including what relationship, if any, she proposes with the child; ++ she participated in an interview with immigration officials prior to the grant of the visa [or passport], and the views expressed by her during this interview; The preparation of a Family Report addressing the nature of the child’s r­ elationship with the persons seeking parenting orders and an assessment of their capacity and commitment to the long-term welfare of the child (including their capacity to promote the child’s connection to their country of birth’s culture including but not limited to the birth mother) and the views of the surrogate, in particular her consent to the proposed parenting orders. Evidence of the legal regime in the overseas jurisdiction in which the procedure took place with respect to surrogacy arrangements and the rights of the surrogate, and if applicable, of her husband or de facto partner.

These have not always been followed to date.289 As noted earlier, in 2013 the Family Law Council undertook an inquiry into parentage and assisted conception with a particular focus on surrogacy arrangements that are excluded from state-based regimes.290 The report has not been released at the time of writing, nor is the government response known.

4.3.6 Functional or psychological parents and ‘any other ­person concerned with the care, welfare and ­development of a child’ Courts have power to make parenting orders (section 65D) on application by either or both of the child’s parents (section 65C(a)), the child (section 64C(b)), a grandparent of the child (section 65C(ba)), or any other person ‘concerned with the care, welfare or 288 See discussion in Mary Keyes and Richard Chisholm, ‘Commercial Surrogacy: Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105. 289 See Fisher-Oakley & Kittur [2014] FamCA 123 in which there was no DNA testing under the FLA Regulations to conclusively establish paternity, no family report ordered, no ICL appointed and no order removing parental responsibility from the surrogate; [134]–[139]. 290 Attorney-General’s Department, Australian Government, Family Law Council Terms of Reference, above n 277.

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development of the child’ (section 65C(c)). The scope of these provisions is wide, and is broadened further by the provision that a parenting order can be made in favour of a parent of the child or ‘some other person’ (section 64C). The provision for a person ‘concerned with the care, welfare and development’ of a child to bring an application is of considerable significance in recognising the importance of adults who may play a parental role but have no legally recognised relationship with a child. In the 1970s family law was influenced by work from the social sciences on the importance to children of ‘psychological parents’.291 However, this provision had limited effect until the referral of powers over ex-nuptial children from the states in 1986 (Chapter 2) because there still needed to be a matrimonial cause for the court to have jurisdiction. In the case of KAM & MJR and Anor [1998] FamCA 1896 Burr J held that for an application to be made under section 65C(c) the applicant had to first satisfy the ‘threshold question’ to establish that they met this test and that it required more than being ‘concerned about’ or a mere ‘interest in’. The Court also held that ‘the degree or strength of nexus’ of the concern would depend upon the facts and be an issue for determination in every case. This approach was confirmed by the Full Court (Bryant CJ, Boland and Crisford JJ) in Aldridge & Keaton, which held: (i)

(ii)

a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child. This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2); s 65C does not prescribe a hierarchy of applicants. The application falls to be determined under s 60CA guided by the objects and principles in s 60B(1) and s 60B(2) and based on consideration of relevant matters under s 60CC(2) and s 60CC(3).292

In addition to covering ‘father figures’ who performed a parental role but were not genetic parents,293 this section has been used as the basis for standing for applications brought by others such as the adult half-brother of a child,294 and friends of the mother who took on care of the children after her death.295 A more detailed discussion of recent cases involving ‘non-parents’ is found at 9.5.

291 Joseph Goldstein, Anna Freud and Albert J Solnit, Beyond the Best Interests of the Child, 3rd edn, Free Press, New York, 1984. 292 Aldridge & Keaton [2009] FamCAFC 229, [83] (emphasis added). For a case in which the mother’s former samesex partner, who had been living with the mother at the time of conception and involved in the IVF process, but had not seen the child for two years by the time of trial, was held not to meet this threshold see Harris & Calvert [2013] FCCA 955. 293 See, e.g., Radcliffe & Sayer and Anor [2012] FMCAfam 342. 294 Harry & Barndon [2013] FCCA 1616. 295 Holman & Bailie and Anor [2012] FamCA 827.

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4.4 Conclusion In this chapter, we have provided an introduction to the diversity of family forms in Australia, and evolving legal responses to that diversity. In recent decades the laws of the states and territories, and more recently of the Commonwealth, have developed to take into account a far broader range of relationships than those originally recognised through traditional marriage and nuclear families comprised solely of genetic or adoptive ties. Notable recent changes under the FLA include the inclusion of de facto couples within the property division and maintenance regime of the family law courts since 2009 and the extension of parental status in circumstances of assisted conception to the female partner of a mother, and to intended parents in surrogacy where they have obtained state or territory parental transfer orders. It is noteworthy that the jurisdiction of the family law courts is now broader than it has ever been in terms of the very wide array of family forms and relationships that it can cover, and the kinds of family disputes it must resolve. However, in the absence of an overarching definition of ‘parent’ in the FLA, confusion still reigns about the legal status of male genetic parents in some circumstances, and this has yet to be resolved through either an appellate decision or legislative amendment. Whether and when someone is in a legally recognised relationship may be important for jurisdictional, practical, and symbolic reasons. For de jure marriages these practical differences are considerably lesser in scope than for de facto relationships. While the significant number of applications concerning nullity for example demonstrate that the status of divorce is still an important consideration for some, the legal remedies available concerning property division and maintenance do not differ. Likewise, the date on which a separation occurred in a marriage may also be contested but, while it will delay a divorce, it is very unlikely to prevent it. In contrast provisions such as those defining a de facto relationship may have a far greater practical impact, by excluding those relationships that do not qualify within the terms of the definition from the FLA property and maintenance jurisdiction altogether. Likewise the status of a parent under the assisted conception (section  60H(1)) and adoption provisions (section 60HA) hinges on whether they are in a de facto relationship with the woman who gave birth, or adoptive parent, respectively. While ‘non-parents’ are still able to bring an application under s 65C, they face both formal hurdles (the ‘threshold’ issue in establishing they meet the section, the operation of the objects and primary considerations in Part VII) as well as less apparent, but perhaps more enduring, resistance to their claims as caregivers. Thus the informal status of de facto relationships is more uncertain and, with differing interpretation, more porous and open to the influence of social values and change over time.

CHAPTER

5

Family Violence 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8

Introduction 129 Recent developments  131 What is family violence?  133 Scope, extent and the significance of context  138 A spectrum of severity: Recent Australian evidence and implications for practice  144 Children and family violence  151 Family Law Act approaches  154 The 2012 family violence amendments  156 5.7.1 Civil protection orders  160 5.8.1 Practical and conceptual tensions  164 5.8.1.1 Agency dilemma  165 5.8.1.2 Mutualisation as an example of unintended consequences  166 5.8.1.3 Civil protection orders and the criminal law  167 5.8.2 The Victorian system  169

5.9 Conclusion 174

5.1 Introduction The purpose of this chapter is to provide the background for understanding the relevance of family violence to family law, including an overview of the empirical evidence in relation to its nature, scope and extent. The chapter also includes an introduction to the way family violence is dealt with in the Family Law Act 1975 (Cth) (FLA) following legislative amendment in 2012, and an overview of the purpose and form of the other relevant stateand territory-based legal frameworks. Underpinning this chapter, and its location early in the book, is the fact that an understanding of the issues raised by violence and abuse is critical to any discussion of law and policy relating to families. In the past three decades, empirical research has begun to establish the scope and nature of the different kinds of abuse that occur in many families. More recently, these issues have become prominent on the policy agendas of governments

129

130 AUStralian FAMILY LAW: the contemporary context

at both state and federal levels.1 Family violence has also become a central focus in the development of policy and program responses in family law, following three reports that were released in 2010 which highlighted the extent to which family violence and safety concerns for children and adults are relevant among separated parents2 and the need to strengthen systemic responses to these issues.3 People affected by family violence and/or child abuse are the core client base of the formal parts of the federal family law system: family dispute resolution services, lawyers and courts.4 Family violence and child abuse, which frequently occur together, are dealt with by multiple and intersecting—and at times conflicting—legal frameworks.5 Potentially, a woman who experiences family violence will find that up to five legal frameworks are relevant to her situation. State and territory law (in various statutes and through common law principles) may come into play to address immediate safety (civil protection orders); prosecution of the perpetrator; compensation through victim of crime schemes aimed at providing access to financial recompense via a state fund;6 compensation or damages from the perpetrator through private civil actions (uncommon in practice); and child protection legislation if she has a child who is directly or indirectly exposed, to the extent that state and territory child protection departments may have cause to intervene. Federal law, principally the FLA, will be relevant when it comes to sorting out post-separation parenting and financial arrangements. In addition, interaction with a range of other federal laws and agencies—including Centrelink and the Department of Human Services—Child Support (DHS-CS)—may occur, with the family violence being relevant in a range of ways to the services she accesses. For example, when applying for benefits (Family Tax Benefit) through Department of Human Services—Centrelink, the family violence may be a factor that will relieve her of the obligation to seek child support from the perpetrator (11.3.3.1). 1 Commonwealth Government, Department of Families, Housing, Community Services and Indigenous Affairs and Council of Australian Governments, National Plan to Reduce Violence against Women and Their Children, Including the First Three-Year Action Plan, Council of Australian Governments, Canberra, 2011 (National Plan). Attempts to develop a national response have a long history. For an example of the formulation of a national legal template for domestic violence laws, see Domestic Violence Legislation Working Group (Australia), Model Domestic Violence Laws Report, April 1999. See also Australian Government, Attorney-General’s Department, The Family Law Violence Strategy, February 2006; Rob Hulls and Victorian Government, Department of Justice, New Directions for the Victorian Justice System 2004–2014 Attorney-General’s Justice Statement, Department of Justice, Melbourne, 2004. 2 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009, . 3 Richard Chisholm, Family Courts Violence Review, Attorney-General’s Department, Canberra, 2009; Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Attorney-General’s Department, Canberra, 2009. 4 See, e.g., John De Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Measures) Act 2011, Australian Institute of Family Studies, Melbourne, 2014, ; Lixia Qu and Ruth Weston, Parenting Dynamics after Separation: A Follow-Up Study of Parents Who Separated After the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2010. 5 Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, Final Report, Australian Law Reform Commission and NSW Law Reform Commission, Sydney, 2010. 6 For an overview of these schemes see Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper 8, Australian Domestic and Family Violence Clearinghouse, 2010, , 28 April 2014.

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Because of the Constitutional issues discussed in Chapter 2, power to legislate in relation to family violence does not fall purely within the purview of either the federal or state parliaments. As a result, the adoption of differing approaches among different governments at state, territory and federal levels, legislative policy in areas relevant to family violence and child abuse has developed in an uneven and piecemeal way. Since 2007, there has been significant work done through federally initiated and state- and territory-supported processes to bring policy approaches to both family violence and child abuse closer into national alignment, culminating with the Council of Australian Governments endorsing the National Plan to Reduce Violence against Women and Their Children (National Plan) in February 2011.7 From 2010, the need to improve responses to parents and children affected by violence has become a priority in the federal family law sphere, through legislative amendments (the Family Law Amendment (Family Violence and Other Matters) Act 2011 (Cth): 5.7.1) intended to place increased emphasis on identifying and responding to concerns about family violence and child safety8 and program developments (for example, coordinated family dispute resolution9) aimed at providing services developed specifically for the needs of this client group. Attention has also been directed towards ensuring that more effective processes for screening for family violence are applied across the family law system, through the development of a family violence professional development package (AVERT)10 and a screening risk and risk assessment tool intended to be applied by professionals across the family law system.11 Our discussion suggests, however, that despite positive change there is still much work to be done in improving awareness of and responses to family violence.

5.2 Recent developments Recent attempts to measure the cost of family violence are a reflection of greater concern at the level of government policy and growing awareness of the effects that violence and abuse in families have on the community at large. In 2002–03, Access Economics estimated the costs of family violence in Australia in that financial year to be $8.1 billion.12 Projections based on the Access Economics methodology produced by KPMG in 2009 estimated that, unless the incidence of family violence is reduced, costs to the Australian economy in 7 The report that led to the endorsement of the National Plan was: National Council to Reduce Violence against Women and Their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and Their Children, 2009–2021, Department of Families, Housing, Community Services and Indigenous Affairs, Canberra, 2009. 8 Commonwealth Parliament, House of Representatives, Explanatory Memorandum, Family Law legislation Amendment (Family Violence and other Measures) Act 2011, Commonwealth Parliament, Canberra, 2011. 9 See, e.g., Rae Kaspiew John De Maio, Julie Deblaquiere and Briony Horsfall, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report, Australian Institute of Family Studies, Melbourne, 2012. 10 AVERT Family Violence, . 11 Jennifer McIntosh and Claire Ralfs, The DOORS Detection of Overall Risk Screen Framework, Attorney-General’s Department, Canberra, 2012. 12 Access Economics, The Cost of Domestic Violence to the Australian Economy: Part 1, Commonwealth of Australia, Office of the Status of Women, Canberra, 2004, p vii.

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2021–22 will be $15.6 billion.13 These cost estimates take into account pain, suffering and premature mortality; health system costs; production costs from absenteeism; consumption costs; administrative costs based on the justice system; therapeutic support needs created by family violence; and the costs related to the payment of government benefits.14 The bulk of the cost burden, reflecting estimates for pain, suffering and premature mortality, is borne directly by victims ($8.1 billion).15 In 2004, a VicHealth Report found that ‘intimate partner violence’ (the terminology adopted in the report) is the leading contributor to death, disability and illness in Victorian women aged 15–44 years, being responsible for more of the disease burden than many well-known risk factors such as high blood pressure, smoking and obesity.16 In 2010, the National Plan to Reduce Violence against Women and Their Children (National Plan) was agreed to by the Commonwealth Government and all state and territory governments. The National Plan to Reduce Violence against Women and the Children came to fruition through a Council of Australian Governments process. It sets out ‘national targets’ for action in six areas: community safety; respectful relationships; strengthening Indigenous communities; effective service responses for women and children experiencing violence; effective justice system responses; and developing strategies to change perpetrator behaviour and hold perpetrators to account. A 12-year time frame for implementing actions to support the targets is set out in the National Plan, with the high level goals of reducing the extent to which family violence and sexual assault occur. The National Plan developed out of work done by an expert group convened by the Federal Government in 2007, the National Council to Reduce Violence against Women and Their Children,17 which was tasked to develop strategies to reduce violence against women and children. This Council’s report, The Time for Action,18 highlighted the fact that ‘separation from the perpetrator of violence and abuse is a primary safety strategy advocated by child protection workers who sometimes threaten removal of children from the home if action to separate is not taken. Issues of family violence and child abuse are therefore central, not peripheral, issues in the family law area’.19 Together with other significant reports, including The Family Courts Violence Review by The Honourable Professor Richard Chisholm (Family Courts Violence Review) and the Family Law Council’s Improving Responses to Family Violence in the Family Law System (FLC, Improving Responses),20 this work has created the impetus for enhancing the family law system’s ability to identify and respond to family violence. Among the measures identified as necessary in these reports 13 The KPMG estimates were produced to support the work of the National Council to Reduce Violence against Women and Their Children; National Council to Reduce Violence against Women and Their Children, above n 7, p 77. 14 Access Economics, above n 12, pp 6–7. 15 KPMG, above n 13, p 8. 16 Victorian Health Promotion Foundation, The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence, Victorian Health Promotion Foundation, Carlton South, 2004, p 10. 17 National Plan, above n 1, p 4. 18 National Council to Reduce Violence against Women and Their Children, above n 7. 19 ibid., p 101. 20 Richard Chisholm above n 3; Family Law Council, above n 3. The Family Courts Violence Review was instigated after Darcey Freeman (age five) was murdered by her father in January 2009, p 18.

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were better screening and identification measures for family violence cases, better legislative support for disclosure of concerns about family violence and child safety, and better coordination among the different services that women and children affected by family violence engage with. The work of the National Council to Reduce Violence against Women and Their Children gave rise to two further significant pieces of analysis by the Australian Law Reform Commission (ALRC). One report considered the intersection of legal frameworks specifically dealing with family violence at federal, state and territory level (the 2010 ALRC Family Violence report).21 The other examined how family violence was dealt with in a range of other Commonwealth laws, such as those involving social security, migration and child support (the 2011 ALRC Family Violence and Commonwealth Laws report).22 The ALRC Family Violence report addresses the fragmentation of frameworks dealing with family violence across states and territories. Expanding on a theme explored in the first edition of this text, it highlighted the implications of the operation of discrete silos dealing with different aspects of family violence in different ways and for different purposes from the perspective of those using the system: the problems faced by victims require engagement with several parts of the system. Consequently … these people could be referred from court to court, and agency to agency, with the risk that they may fall into the gaps in the system and not obtain the legal solutions—and the protection—that they require.23

In order to address the gaps and fragmentation that make the system difficult to use from a client perspective, the ALRC made 187 separate recommendations24 underpinned by a conceptual approach based on four principles: seamlessness, accessibility, fairness and effectiveness.25 Some of these recommendations have been implemented (see the discussion below) but many remain under consideration.26

5.3 What is family violence? A core recommendation from the ALRC Family Violence report was to align definitions of family violence used in state and territory family violence frameworks and in the FLA, with the goal of moving towards ‘a common interpretive framework’ to establish ‘a shared understanding of what constitutes family violence across these legislative schemes’.27 This principle was also a core element of the ALRC Family Violence and Commonwealth Laws

21 Australian Law Reform Commission and NSW Law Reform Commission, above n 5. 22 Australian Law Reform Commission, Family Violence and Commonwealth Laws—Improving Legal Frameworks, Final Report, Australian Law Reform Commission, Sydney, 2011. 23 Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 52. 24 ibid., p 49. 25 ibid., p 53. 26 Australian Government, Government Response to the Australian and NSW Law Reform Commission: Family Violence—A National Legal Response,   June 2013, , 28 April 2014. 27 Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 55.

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recommendations.28 Also central was the Commission’s preferred definition of family violence in ALRC Family Violence: ‘family violence is violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful’.29 This statement was to be supported by a non-exhaustive series of examples, namely physical violence; sexual assault and other sexually abusive behaviour; economic abuse; emotional or psychological abuse; stalking; kidnapping or deprivation of liberty; damage of property; causing injury or death to an animal; and causing a child to be exposed to family violence. In 2012, amendments to the FLA30 (the 2012 family violence amendments) were made that widened the definition along similar, though not identical, lines to those proposed by the ALRC Family Violence Report. Before discussing this new FLA definition in greater depth, it is necessary to acknowledge that contemporary definitions of family violence have behind them debates that have extended over decades regarding the appropriate terminology to describe violence that is perpetrated within families and intimate relationships. Indeed, the label applied to such violence has been a key issue in feminist struggles to bring it out of the shadow of the private sphere, where historically it remained as a vestige of the era when husbands had the right to use physical force to discipline not only their children but also their wives.31 According to feminist arguments, the historical lack of visibility of such violence in public discourse, in policy and in the legal system served to reinforce the gendered imbalances in power that its physical enactment in private relationships perpetuated.32 Among the descriptors commonly applied in various contexts are ‘family violence’, ‘domestic violence’, ‘family and domestic violence’ and ‘intimate partner violence’ (a term particularly common in United States (US) psychological literature). Each of these terms is seen to have strengths and drawbacks. A central concern in developing and applying terminology has been to recognise that the behaviour being described occurs in the context of relationships—familial and intimate—but not to allow the words acknowledging this to suggest the behaviour is somehow less serious than violence that occurs in other contexts. Two other features of developing understandings of family violence are also crucial to the material discussed in this chapter and the contemporary definitions described in this section. The first is that family violence is not a unitary phenomenon. Not only does it vary in form, intensity and impact, but the way it occurs and is experienced differs for different individuals and groups in society.33 A significant influence on contemporary thought about family violence is a socio-ecological approach, which holds that violence occurs as a result of an interplay between a range of factors relevant at four levels: individual, family, community and society. In addition to gender, other issues arising from these four levels of 28 29 30 31

Australian Law Reform Commission, above n 22, p 11. Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 55. Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). Renata Alexander, Domestic Violence in Australia: The Legal Response, 3rd edn, Federation Press, Annandale, NSW, 2002, p 7. 32 See, e.g., National Committee on Violence against Women, National Strategy on Violence against Women, Commonwealth of Australia, Canberra, 1992. 33 See, e.g., Dale Bagshaw and Donna Chung, ‘Gender, Politics and Research: Male and Female Violence in Intimate Relationships’ (2000) 8 Women against Violence: An Australian Feminist Journal 4.

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influence may be relevant to whether and how violence occurs in any particular context. These include biology, socio-economic status, culture, community values and individual characteristics such as mental ill-health and substance abuse.34 In Australia, this interplay between the four levels of influence can be seen in a range of contexts. Among the groups recognised to be at higher risk of experiencing family violence are Aboriginal and Torres Strait Islander women (see further below)35 and young women.36 Other groups for whom the experience of, and response to, family violence raises issues different from those of other women include women from culturally and linguistically diverse communities37 and women with disabilities.38 For all these groups, the experience of family violence varies, requiring policy and practice approaches geared to recognising the particular issues that arise for that group, acknowledging that experiences also vary within each group. A further context in which family violence has particular significance is that of relationship breakdown, and this is discussed further at 5.4. The other significant feature of contemporary understandings of family violence is the centrality of power and control to the perpetration and impact of family violence. Family violence is recognised to be a means of asserting dominance and control within a relationship, with a variety of physical and non-physical mechanisms being used, including manipulation and denial of access to economic resources, and psychological manipulation (for example, repeated insults designed to cause low self-worth).39 For some people, particular issues—such as citizenship status or sexual identity—may become levers of dominance in an abusive relationship. For immigrant women, their citizenship status may make them vulnerable to manipulation. An abusive partner may exploit this status. In a

34 DG Dutton, ‘An Ecologically Nested Theory of Male Violence towards Intimates’ (1985) 8 International Journal of Women’s Studies 404; Lori Heise, ‘Violence against Women: An Integrated, Ecological Framework’ (1998) 4 Violence against Women, 262; L Dahlburg and E Krug, ‘Violence—A Global Public Health Program’ in E Krug (ed.), World Report on Violence and Health, World Health Organization, Geneva, 2002, pp 3–21; World Health Organization, Preventing Intimate Partner and Sexual Violence against Women: Taking Action and Generating Evidence, World Health Organization, Geneva, 2010; Victorian Health Promotion Foundation, Preventing Violence before It Occurs: A Framework and Background Paper to Guide the Primary Prevention of Violence against Women in Victoria, VicHealth, Carlton, 2007; National Council to Reduce Violence against Women and Their Children, above n 7; National Plan, above n 1. 35 A Day, A Francisco and R Jones, Programs to Improve Interpersonal Safety In Indigenous Communities: Evidence and Issues, Issues Paper No. 4. Produced for the Closing The Gap Clearinghouse, Australian Institute Of Health and Welfare, Canberra and Australian Institute of Family Studies, Melbourne, 2013, p 2. 36 Australian Bureau of Statistics (ABS), Personal Safety Survey Australia 2005 (Reissue), Catalogue no. 4906.0, ABS, Melbourne, , 29 April 2014, p 6; See also for sexual and physical violence: Anthony Morgan and Hannah Chadwick, ‘Key Issues in Domestic Violence’, Research in Practice Summary Paper No. 7, Australian Institute of Criminology, Canberra, 30 April 2014; ABS, Personal Safety Survey Australia 2012, Catalogue No. 4906.0, ABS, Melbourne, available at . 37 See, e.g., Nafiseh Ghafournia, ‘Battered at Home, Played Down in Policy: Migrant Women and Domestic Violence in Australia’ (2011) 16 Aggression and Violence Behavior 207. 38 See, e.g., SB Plummer and P Findlay, ‘Women with Disabilities’ Experience with Physical and Sexual Abuse Review of the Literature and Implications for the Field’ (2012) 13 Trauma, Violence and Abuse, 15 (originally published online 8 November 2011), available at . 39 See, e.g., discussion in Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 188, 5.6–5.12.

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same-sex relationship, threats to ‘out’ a partner to family, friends or in a work context may be a means of exerting control. These understandings are reflected in the recently amended definition in the FLA, which was part of a series of legislative amendments designed to improve the family law system’s response to family violence.40 These amendments are discussed substantively in Chapters 6 and 8; however, the definition is introduced here, since it is relevant to the forthcoming discussion. The new definition in section 4AB reads: (1)

(2)

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include (but are not limited to) (a) an assault; or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f ) intentionally causing death or injury to an animal; or (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

The family violence definition in the FLA is applicable in any situation where the court is required to consider the relevance of violence. The main such contexts are applications for injunctions (under section 114 and section 68B), applications for parenting orders under Part VII, and property-related applications under Part VIII (spouses) and Part VIIIAB (de facto partners). Significantly, a history of family violence and/or abuse is relevant to some extent in determining the procedural pathway, as explained in Chapter 7 with cases involving such issues theoretically being exempt from compulsory family dispute resolution.41 As noted, the new definition reflects the contemporary knowledge base on family violence, recognising that a range of different behaviours can constitute family violence, including physical abuse, sexual abuse, emotional and psychological abuse, and behaviours designed to exert power by restricting the target’s access to financial resources and social, 40 Commonwealth Parliament, Explanatory Memorandum, to the above n 8. 41 FLA s 60I(9); Family Law Rules 2004 (Cth) r 1.05(2)(a).

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familial and cultural resources. It differs from the previous FLA definition in several ways. First, it explicitly recognises non-physical forms of abuse. Second, it refers to behaviour designed to cause control, coercion or fear (rather than ‘fear’ or ‘apprehension’). Third, it eliminates any explicit reference to the state of mind of the target (the previous definition required fear or apprehension to be felt ‘reasonably’ given the circumstances of the target). Fourth, it includes a non-exhaustive enumeration of examples of family violence, referring explicitly to behaviours that may or may not have been recognised as family violence under the previous definition, such as ‘repeated derogatory taunts’ where these result in fear, coercion or control, implicitly requiring consideration of the subjective state of mind of the target. The new definition has several interrelated drivers. Most broadly, it is consistent with shifts in social attitudes, tracked by surveys examining social attitudes to family violence between 1995 and 2009.42 The National Community Attitudes towards Violence against Women Survey found a significant change in community attitudes to non-physical forms of violence, which even in 1995 were viewed by a majority of the sample as family violence. In relation to ‘criticising a partner to make them feel bad or useless’, for example, agreement that this was domestic violence increased from 71 per cent of the sample in 1995 to 85  per  cent in 2009.43 The proportion of the sample agreeing that behaviours linked to control were domestic violence increased by 10 percentage points over the same period: 62 per cent affirming in relation to denial of money in 1995 compared to 72 per cent in 2009 and 74 per cent affirming in relation to controlling contact with family or friends in 1995 compared to 84 per cent in 2009. Empirical evidence also demonstrates that, often, physical and other types of abuse occur together, but that any of these forms may also occur independently of the others, as the discussion in the next section shows. More narrowly, the new FLA definition responds to discussions in three of the significant analyses of policy and practice that have been produced in the past four years: the Family Courts Family Violence Review,44 the ALRC Family Violence report45 and the Family Law Council Improving Responses Report.46 The latter two reports each put forward similar rationales for new definitions based on contemporary knowledge about the variety of forms family violence might take and the need to bring federal definitions into line with those applied in state- and territory-based family violence frameworks.47

42 Research on social attitudes indicates that views within the community about family violence have shifted in recent decades and that attitudes that may be described as ‘violence-supportive’ are less prevalent than they were 15 years ago. The National Community Attitudes towards Violence against Women Survey 2009 involved 10,000 participants and was conducted by a consortium comprising VicHealth, the Social Research Centre, and the Australian Institute of Criminology. The findings of the survey, which build on surveys previously conducted with Victorian samples (2006) and national samples (1995) reveal shifts in several important areas: Kiah McGregor, National Community Attitudes towards Violence against Women Survey 2009, Project Technical Report, Australian Institute of Criminology, Canberra, 2009. 43 ibid., p 22. 44 Chisholm, above n 3. 45 Australian Law Reform Commission and NSW Law Reform Commission, above n 5. 46 Family Law Council, above n 3. 47 Australian Law Reform Commission above n 5, Chapter 6; Family Law Council above n 3, Rec 1.

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Despite these imperatives for the new definition, some aspects of it have raised concern. In particular, the need to establish that the behaviour resulted in coercion, control or fear has the potential to operate in a limiting way. Depending on the approach taken by practitioners and decision makers, these elements may be difficult to establish from an evidentiary perspective, particularly since they may have no physical or external manifestation. In a detailed analysis of the definition and its drafting history, Zoe Rathus notes that two contradictory sets of aims were being pursued by family law system stakeholders in the processes that preceded the enactment of the legislation.48 Family violence advocates and service providers were seeking an inclusive definition to capture non-physical types of abuse. In contrast, some academics and lawyers were concerned to avoid an overinclusive definition that would not cast the net so widely that less harmful behaviours would be captured. Paradoxically, each of the groups supported the framework on the basis that it met their concerns.49 This underlines the potential for varying interpretations of the definition to be applied. Rathus suggests that ‘the pre-conditions of coercion, control or fear may have set the bar higher than anticipated’.50

5.4 Scope, extent and the significance of context In recent years, the empirical evidence base on the occurrence of family violence has expanded significantly, providing better insight into prevalence and incidence than has been available before. This discussion provides an overview of recent empirical evidence on the prevalence of family violence among separated families and the extent to which it is sustained after separation. In order to expand on the point made earlier about the way violence varies according to context, the discussion also considers family violence in the specific contexts of relationship breakdown and Aboriginal and Torres Strait Islander communities. In introducing the discussion of the empirical evidence base, however, it is also critical to acknowledge the complexities that arise in endeavouring to assess the extent of family violence and to understand its impact. These questions are methodologically and socially complicated. From a methodological perspective, the debates surrounding the measurement of family violence are longstanding and ever developing.51 One of the key areas of debate arises from the way that gendered patterns in relation to perpetrating and experiencing family violence are reflected in some large-scale, quantitative studies when standard surveybased questions are asked. Such approaches tend to produce results suggesting that men and women perpetrate violence to a similar extent; however, what is often missing from 48 Zoe Rathus, ‘Shifting Language and Meaning between Social Science and the Law: Defining Family Violence’ (2013) 36 (2) University of New South Wales Law Journal, 359. 49 ibid., 376. 50 ibid., 376. 51 Dale Bagshaw and Donna Chung, above n 33; Kelsey Hegarty, Robert Bush, Mary C Sheehan, ‘The Composite Abuse Scale: Further Development and Assessment of Reliability and Validity of a Multi-Dimensional Partner Abuse Measure in Clinical Settings’ (2005) 20 (5) Violence and Victims, 529; Marion Hester, Who Does What to Whom? Gender and Domestic Violence Perpetrators, University of Bristol in association with the Northern Rock  Foundation, Bristol, 2009, ; Australian Bureau of Statistics, Defining the Data Challenge of Family and Domestic Violence and Sexual Violence, 2013, Catalogue No. 4529.0, .

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studies like these are data that allow us to understand the nuances of dynamics surrounding aggressive and defensive acts, their impact and effect and the intent behind physically aggressive or economically, socially, or psychologically oppressive acts. Overall, the evidence indicates that women are predominantly the victims of family violence and men predominantly the perpetrators. Men can also be victims and women can also be perpetrators, though this is much less common, as recent Australian Bureau of Statistics (ABS) data show. The ABS Personal Safety Survey 2012 reveals that 17 per cent of all women and 5.3 per cent of all men aged 18 years and over had experienced violence by a partner since the age of 15.52 The data suggest a relative level of stability in prevalence over time, with 1.5 per cent of all women reporting experiencing violence by a partner in the preceding 12 months in both the 2005 and 2012 Personal Safety Surveys.53 The statistic for men is 0.4 per cent in 2005 and 0.6 per cent in 2012; however, the ABS notes that the differences in these figures are not statistically significant. Most women who reported experiencing emotional abuse by a current or former partner also reported experiencing anxiety or fear as a result (76 per cent and 62 per cent respectively). Just under half of the men (46 per cent) who reported experiencing emotional abuse by a previous partner also reported experiencing anxiety or fear as a result.54 Two large-scale quantitative studies of separated parents by the Australian Institute of Family Studies (AIFS) have contributed significantly to the knowledge base on family violence in recent years. The first study, the Longitudinal Study of Separated Families (hereafter AIFS LSSF) has collected three waves of data, reinterviewing parents who separated shortly after the 2006 family law amendments at intervals of 18 months or so, based on an initial sample of 10,000 parents.55 More recently, the Survey of Recently Separated Parents 2012 (AIFS SRSP 2012) examined the experiences of parents who separated between 31 July 2010 and 31 December 2011, based on a sample of 611 parents.56 Each of these studies shows that a reported experience of family violence is more common than not among separated parents, revealing similar levels of prevalence before separation and in the recent post-separation period, although exact percentages differ marginally, probably due to slightly different sampling strategies being applied.57 For simplicity, this discussion reports the SRSP findings. In the SRSP, the proportion of parents who did not report experiencing violence before or during separation was 41 per cent of fathers and 31.6 per cent of mothers. Physical hurt before or during separation was reported by 16 per cent of fathers and 23.5 per cent of mothers. Emotional abuse was reported by 43 per cent of fathers and 45 per cent of mothers.58

52 Australian Bureau of Statistics (ABS), Personal Safety Survey 2012, Catalogue No. 4906.0, 30 April 2014, Table C. 53 ibid., Table 21. 54 ibid., Table 33. For women, this refers to where a male previous partner or male current partner was nominated and, for men, where female previous partner or female current partner was nominated. 55 Qu and Weston, above n 4; Lixia Qu, Ruth Weston, Lawrie Moloney, Rae Kaspiew, and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014. 56 De Maio et al., above n 4. 57 Kaspiew et al., above n 2, Table 2.2; De Maio et al., above n 4, Table 2.3 and footnote 13. 58 De Maio et al., above n 4, Table 2.4.

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Findings from the analysis of the subsequent two waves of data from the LSSF (Waves 2 and 3) provide an understanding of how the post-separation experience of family violence may continue over the longer term. Findings from Wave 3 demonstrate that family violence extends beyond the immediate separation period for a significant proportion of separated parents.59 Forty-four per cent of mothers and 37.8 per cent of fathers reported experiencing some form of family violence in the 12 months prior to the Wave 3 data collection, reflecting a period some four to five years after separation. Emotional abuse accounted for most of this with only 2.2 per cent of mothers and 1.5 per cent of fathers reporting physical hurt in the preceding 12 months.60 As the socio-ecological perspective referred to above emphasises, it is also clear that different groups in the population have different experiences of violence and that it is important to understand the context in which violence occurs. There is an expanding body of literature that attempts to grapple theoretically and empirically with family violence within different cultural, economic and geographical groups, and in same-sex relationships.61 Commenting on empirical research undertaken in South Australia in 1999 exploring experiences of family violence and the effectiveness of service provision, social work academic Dale Bagshaw and colleagues observe that ‘[c]ulture, location, sexuality, gender and class were critical factors in how people living in domestic violence understood their experiences and the effectiveness of service responses’.62 One context that exemplifies the points made by Bagshaw is that of Indigenous women and communities. Research conducted over many years has highlighted the complexity of achieving protection from family violence through legal mechanisms for Aboriginal and Torres Strait Islander women.63 The elements that comprise family violence in the Indigenous context mean that family violence as a phenomenon is significantly different in Indigenous communities from that in non-Indigenous communities. An accepted conceptualisation in this context acknowledges that family violence potentially involves a wide range of relatives and ‘kin’, perpetrators and victims may be individuals or groups, the

59 Qu et al., above n 55, Table 3.5. 60 Qu et al., 2014, above n 55, Table 3.5. 61 A useful starting point for considering the needs of diverse groups is in Dale Bagshaw, Donna Chung, Murray Couch, Sandra Lilburn and Ben Wadham, Reshaping Responses to Domestic Violence, University of South Australia, Adelaide, 2000. In relation to sexuality, Bagshaw et al. note that examining violence in same-sex relationships provides ‘an opportunity to place domestic violence within a broader context of violence in intimate relationships and consider how power and control may be understood in new ways. In particular, heterosexual dominance, homophobia and social constructions of gender could provide important theoretical entry points for extending current explanations rather than merely accommodating gay and lesbian domestic violence into mainstream theory’: p 109. People with disabilities are also more vulnerable to violence and face significant barriers to obtaining assistance: see, e.g., Chris Jennings, Triple Disadvantage: Out of Sight, Out of Mind: Violence against Women with Disabilities Project, Domestic Violence and Incest Resource Centre, Collingwood, 2003; Victorian Law Reform Commission, Review of Family Violence Laws Report, Victorian Law Reform Commission, Melbourne, 2006, pp 37–41. 62 Bagshaw et al., above n 61, p 6. See also Rosemary Hunter, ‘Narratives of Domestic Violence’ (2006) 28 Sydney Law Review 735, 770. 63 For example, Harry Blagg, ‘Restorative Justice and Aboriginal Family Violence: Opening a Space for Healing’, in Heather Strang and John Braithwaite, Restorative Justice and Family Violence, Cambridge University Press, Cambridge and Port Melbourne Vic, 2002, pp 191–205.

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acts involved may be physical, psychological, social, economic or sexual in nature and some family violence may be sustained over a significant period of time.64 As also referred to earlier, the extent of family violence is more significant.65 From an Aboriginal and Torres Strait Islander perspective, the nature and extent of family violence can be attributed to the damage caused by colonisation, which dispossessed Indigenous peoples from their land, fractured their relationship with culture and wreaked havoc in communities through the forcible removal of children from their families.66 The relationship of Aboriginal and Torres Strait Islander peoples to the legal system is problematic for a number of reasons stemming from Australia’s history of colonisation and its aftermath, which have seen Indigenous peoples overrepresented in the criminal justice system to a very significant extent.67 Similarly, historically and now, Indigenous children have been much more likely to be removed from their families on child protection grounds than nonIndigenous children.68 These two issues underpin a reluctance among many Aboriginal and Torres Strait Islander people to engage with the legal system. The reasons for this reluctance may inhibit victims from seeking protection due to concerns about encountering inappropriate and possibly racist responses and exposing the perpetrator to such responses. Chris Cunneen summarises these concerns about engaging with the criminal justice system in this way: There are fears by the aggrieved concerning the outcomes of a legal intervention on the perpetrator. These fears include that their spouse may be subject to discrimination if incarcerated, or that incarceration might lead to death in custody. Further there is a view that incarceration does not change men’s behaviour and further depletes the community of men.69

These issues underpin an understanding that different approaches to family violence as it occurs in Aboriginal and Torres Strait Islander communities are required from those in non-Indigenous contexts. An example of this can be seen in the National Plan’s approach, which has an Indigenous-specific element that focuses on building leadership capacity and enhancing economic participation for Indigenous women.70 From a socio-ecological standpoint, a further context in which family violence raises particular issues that are especially significant in family law is relationship breakdown.

64 Chris Cunneen, Alternative and Improved Responses to Domestic and Family Violence in Queensland Indigenous Communities, University of New South Wales, Sydney, 2010, p 40, citing P Memmott, R Stacy, C Chambers, C Keys, Violence in Indigenous Communities, Attorney General’s Department, Canberra, 2001, p 34. 65 Steering Committee for the Review of Government Service Provision (SCRGSP), Overcoming Indigenous Disadvantage: Key Indicators Report 2011, Productivity Commission, Canberra, part 4.1. 66 For example, Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from the Families, Human Rights and Equal Opportunity Commission, Canberra, 1997, p 3. 67 SCRGSP, above n 65, part 4.12. 68 ibid., part 4.10; Australian Institute of Health Welfare, Child Protection Quick Facts, Online Resource, , 28 April 2014: in 2011–12 Indigenous children, in comparison with nonIndigenous children, were eight times more likely to be the subject of substantiated abuse or neglect; 10 times as likely to be on a care and protection order; just over 10 times as likely to be in and out of home care. 69 Cunneen, above n 64, p 29. 70 National Plan, above n 1, National Outcome 3.

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Family violence is associated with decisions to end a relationship.71 However, the decision to end a violent relationship is not one that many women make easily. Renata Alexander notes that, in contemplating leaving violent men, women often face a ‘stark choice between violence and poverty’ due to the economic dependence that motherhood normally involves.72 Such a choice, combined with the belief that children will suffer if families are not kept together, mean that separation is often ‘an absolute last resort’.73 A further factor that may exacerbate women’s ambivalence about leaving violent relationships is that they may have been subject to threats about what may happen to them if they leave.74 However, a desire to protect children from further exposure to ongoing or escalating violence has been shown to be a significant motivator in decisions to leave.75 The end of a relationship may not mean the end of the violence: it may mean the escalation, the continuation76 or even the beginning of violence.77 Women are at risk of many different types of assault, including physical assault, rape and murder.78 Court action, including counter applications for civil protection orders and orders in relation to parenting matters, may also be a manifestation of an abusive ex-partner’s attempt to regain or maintain control.79 As Lesley Laing observes, ‘[a]fter separation, the children may find that, through issues of contact arrangements, they move from the periphery to the centre of the conflict’.80 71 Dale Bagshaw, Thea Brown, Sarah Wendt, Alan Campbell, Elspeth McInnes, Beth Tinning, Becky Batagol, Adiva Sifris, Danielle Tyson, Joanne Baker and Paula Fernandez Arias, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families Who Separated Post-1995 and Post-2006, AttorneyGeneral’s Department, Canberra, 2010, Tables 19 and 20. 72 Alexander, above n 31, p 11. 73 ibid. 74 Robyn Edwards, Staying Home, Leaving Violence: Promoting Choices for Women Leaving Abusive Partners, Australian Domestic and Family Violence Clearinghouse, Sydney, 2004, p 12. 75 ibid., p 23. 76 C Walsh, SJ McIntyre, L Brodie, L Bugeja and S Hauge, Victorian Systemic Review of Family Violence Deaths—First Report, Coroners Court of Victoria, Melbourne, 2012, p 18; Jenny Mouzos, Homicidal Encounters: A Study of Homicide in Australia 1989–1999, Research and Public Policy Series No. 28, Australian Institute of Criminology, Canberra, 2000. 77 Anna Ferrante, Frank Morgan, David Indermaur and Richard Harding, Measuring the Extent of Domestic Violence, Hawkins Press, Sydney, 1996, p 67; see also Kathryn Rendell, Zoe Rathus and Angela Lynch, An Unacceptable Risk: A Report on Child Contact Arrangements Where There Is Violence in the Family, Women’s Legal Service Inc., Brisbane, 2002; Martha Mahoney, ‘Legal Images of Battered Women: Redefining the Issue of Separation’ (1991) 90 Michigan Law Review 1, 20; Beth Tinning, Seeking Safety, Needing Support: A Report on the Requirements for Women Experiencing Domestic Violence and Accessing the Family Court, Sera’s Women’s Shelter, Townsville, Queensland, 2006, p 74. 78 Walter DeKeseredy, McKenzie Rogness and Martin D Schwartz, ‘Separation/divorce Sexual Assault: The Current State of Social Scientific Knowledge’ (2004) 9 Aggression and Violent Behaviour 675. 79 Australian Law Reform Commission, For the Sake of the Kids: Complex Contact Cases and the Family Court, Report No. 3, 1994, [5.28]–[5.30] recommended that the Family Court should be ‘more robust in refusing contact’ in circumstances involving violence and continuing conflict: Recommendation 2.7. See also Australian Law Reform Commission, Equality before the Law: Justice for Women, Report 69, Part 1, [9.5]; Hunter, above n 62, 775; Rendell et al., above n 77, pp 48–9; and Helen Rhoades, ‘The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father”’ (2002) 16 International Journal of Law, Policy and the Family 71, 77. The use of FLA s 118 orders (see 3.2.2.2) to curb the use of litigation against a background of domestic violence is discussed in Belinda Paxton, ‘Domestic Violence and Abuse of Process’ (2004) 17 Australian Family Lawyer 7. 80 Lesley Laing, Children, Young People and Domestic Violence, Australian Domestic and Family Violence Clearinghouse Research Paper 2, University of New South Wales, Sydney, 2002. See also Lundy Bancroft and Jay Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics, 2nd edn Sage Publications, Thousand Oaks, California, 2012.

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Family violence can also be fatal and separation is recognised to be a time of heightened risk for filicide (the murder of a child by a parent)81 and intimate partner homicide.82 In Australia, however, the fragmentation of death review processes among the states and territories means that collation of national statistics on homicide is neither timely nor supportive of understanding the extent to which families affected had engaged with the federal family law system.83 Australian and overseas data show that although men are much more likely to die as a result of homicide than women, women are much more likely to die at the hands of family members, especially intimate partners, than men.84 In Australia, in 2007–08, of the 80 intimate partner homicides that occurred, 77.5 per cent of victims were female and 22.5 per cent were male.85 Similar proportions are evident in figures from Canada, New Zealand, the United Kingdom and the US.86 A report by the Victorian Systemic Review of Family Violence Deaths (VSRFD) covering the period from 2000 to 2010 found that 288 out of at total 545 homicides in that period involved an intimate partner or other family member or were otherwise associated with family violence. Intimate partner homicides comprised 47 per cent of this group and parent–child homicides 26 per cent.87 Most of the homicides of relevance to the VSRFD were committed by men: 79 per cent, compared with 21 per cent committed by women. Information confirming a history of family violence prior to the homicide was identified in 71 per cent of relevant homicides. Among 29 deaths that were caused by parents killing children, men were responsible for 16 homicides, women for 12, and one incident involved both parents. On the basis of the VSRFD homicide analysis and a wider literature review, the report highlights the following risk factors for homicide involving family members and intimate partners: • a history of family violence in intimate partner homicides; • recent or pending relationship separation; • previous threats to kill; • alcohol use; • mental illness; and

81 Deborah Kirkwood and Mandy McKenzie, ‘Filicide in the Context of Parental Separation’ (2013) 27 Australian Journal of Family Law 78, 84. 82 Walsh et al., above n 76. See also Carolyn Walsh, Come with Daddy: Child Murder-Suicide after Family Breakdown, University of Western Australia Publishing, Perth, 2005. 83 An informal list collated from media reports by South Australian academic Elspeth McInnes shows that, as at April 2014, 38 children had been killed by their fathers in the context of separation between January 1998 and January 2014. These figures do not include the deaths of Indiana (age three) and Savannah (age four) on 21 April 2014, who were allegedly killed by their father (who was separated from their mother) in Watsonia in Melbourne: The Age, 22 April 2014, or Luke Batty, who was killed by his father on 13 February 2014: The Age 14 February 2014. See also Mark Sachmann and Carolyn Johnson, ‘The Relevance of Long Term Antecedents in Assessing the Risk of Familicide-Suicide Following Separation’ (2014) 2 Child Abuse Review 130. 84 Walsh et al., above n 76. See also Carolyn Johnson, Come with Daddy: Child Murder-Suicide after Family Breakdown, University of Western Australia Publishing, Perth, 2005; Thea Brown and Danielle Tyson, ‘Filicide and Parental Separation and Divorce’ (2014) 2 Child Abuse Review 79. 85 Walsh et al., above n 76, p 11. 86 ibid., p 11. 87 ibid., p 18. The other categories were other familial 12%, non-familial 8% and other sexual relationship 7%.

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• sexual abuse: this factor is bi-directional, in that sexual abuse perpetration and victimisation are linked to committing and being subject to homicide. The report highlights the difficult dynamics in connection with disclosing family violence: Among the range of deaths examined in this analysis, there was evidence of eight victims of family violence having denied or minimised their exposure to abuse when questioned by family, friends and service providers. In these situations, it appeared that victims held a range of concerns that prevented a full disclosure being made, For some victims, factors connected to their cultural background appeared to make it difficult to speak openly about abuse occurring at home. For others, concern over the possibility of exacerbating the situation or uncertainty as to how services would respond appeared to be most salient. Regrettably, in all of these situations, the difficulty victims faced in discussing their exposure to violence had the effect or curtailing intervention efforts, including not holding the perpetrator accountable for their behaviour.88

5.5 A spectrum of severity: Recent Australian ­evidence and implications for practice The discussion in this chapter so far has emphasised the point that family violence takes various forms. This section sets out recent Australia empirical evidence that demonstrates significant variations in the scope and extent of family violence in separated families. The AIFS SRSP establishes that family violence occurs across a spectrum of intensity with varying impacts on those who experience it. These findings resonate with an influential paradigm for describing family violence in terms of ‘typologies’, which has been a significant feature of US research and theory and which has had some influence on family law practice in Australia. However, concerns have been raised about the implications of this, and recent practice developments in risk assessment screening reinforce the importance of considering each case on its merits in light of the dynamic nature of risk. The AIFS SRSP study included a very detailed analysis of the experiences of family violence in its emotional and physical manifestations. The following discussion focuses on relatively brief descriptions of some findings in key areas to highlight the extent to which experiences vary. Variability in the following areas is highlighted: first, variability in the extent to which emotional violence and physical hurt (before and during separation) are reported; second, the spectrum of intensity the analysis reveals; third, variations in the extent to which these forms of family violence occur together; and, last, the varying nature of the impacts reported. The discussion highlights some areas where differences in relation to gender are especially evident. The AIFS SRSP analysis shows that the most common type of violence reported was emotional abuse (10 different types were measured)89 with 58.2 per cent of fathers and 88 ibid., p 41. 89 De Maio et al., above n 4, Figure 3.1. They were: prevention tactics in relation to using telephone and car, contacting family or friends, or knowing about or accessing money; threating to harm pets (or harming them), the children, other family and friends, themselves or the parent interviewed; trying to force unwanted sexual activity; damaging and destroying property; and insulting with intent to shame, belittle or humiliate the respondent.

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68.4 per cent of mothers reporting such experiences before or during separation. Particularly marked differences were evident in relation to reports of fathers and mothers regarding damaging or destroying property (19.2 per cent of fathers and 34.2 per cent of mothers) and attempting to force unwanted sexual activity (4.4 per cent of fathers and 16.5 per cent of mothers).90 In terms of intensity, an analysis based on a combined measure of the number of different types of emotional abuse and the frequency with which they reportedly occurred, and resulting in scores in five possible ranges, reveals a spectrum of intensity across the sample with scores in five possible ranges. A minority of parents across the sample (4.5 per cent) had scores placing them in the highest range, but at this level mothers outnumbered fathers by more than three to one. The proportion of parents in the second highest range of intensity was 8.9 per cent, with women outnumbering men in this range by five percentage points (6.1 per cent fathers, 11.5 per cent mothers). In the three lower ranges, differences between fathers and mothers were not particularly significant and the proportions of the sample that fell into these ranges were 17.4 per cent (third range), 14.3 per cent (fourth range) and 18 per cent (fifth range).91 In relation to the extent to which physical violence, emotional abuse and attempts to force unwanted sexual activity (considered separately in this analysis) occurred together (before or during separation), the AIFS SRSP findings show that mothers were four times more likely to report all three types of violence occurring together than fathers: 8.0 per cent compared with 1.8 per cent.92 The AIFS SRSP study also asked parents about the impact that experiences of physical hurt and/or emotional abuse before, during and since separation had on them. Measures of impact included adverse effects on mental health, decreases in levels of confidence and security, changes in social activities, time off work or study, impact on eating and sleeping. Very few parents reported no impact (4.4 per cent before or during separation). The majority of fathers (56.4 per cent before or during separation) reported one impact and the majority of mothers (53.2 per cent before or during separation) reported at least two of these impacts.93 Examining impact in a different way, through comparison of responses to various ‘satisfaction with life’ measures among parents who had and had not experienced family violence, the AIFS SRSP findings indicate that parents were less likely to be satisfied with their relationships with their children and in other domains (financial, feelings of safety, physical health and the well-being of their child) if they had experienced family violence. Negative effects were slightly stronger for physical hurt than emotional abuse, but each type of family violence was associated with lower levels of satisfaction.94 A further indication of the varying impact that an experience of family violence has is evident from the findings of AIFS LSSF on the connection between the quality of 90 91 92 93 94

ibid., Figure 3.1. ibid., Figure 3.5. ibid., Table 3.3. ibid., Table 3.5. ibid., Figure 7.14 (relationship with child), Figure 7.16 and Figure 7.17 (life domains).

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the parents’ relationship after separation and a history of family violence.95 Parents who participated in the survey were asked to indicate which of five descriptors most accurately captured the nature of the relationship with their former partner at that time: friendly, cooperative, distant, lots of conflict and fearful. The first two of these descriptors are clearly positive, the third is ambiguous, and the two last descriptors are clearly negative. AIFS’s analysis of these responses and reports of a history of emotional abuse or physical violence established that such histories do not preclude the subsequent characterisations of interparental relationships in positive terms; however, they are more likely to be associated with relationships in the clearly negative or ambiguous categories. Relationships were much more likely to be described in clearly positive terms where there was no reported history of emotional abuse or physical hurt. Parents were most likely to report friendly relationships where no violence was reported (52.5 per cent of fathers and 57.2 per cent of mothers) and least likely to choose this descriptor where physical violence was reported.96 While this new research confirms that, in the Australian population of separated parents, the experience of family violence varies in intensity, duration and impact and gendered patterns are evident in these areas, gaps in empirical evidence remain. One of the most significant is the extent to which experiences of physical hurt and emotional abuse cause fear, result in coercion and are motivated by a desire to control the target. AIFS research underway at the time of writing is examining this, and this evidence will shed further light on whether the new FLA definition appropriately responds to the social phenomenon it is dealing with.97 As noted earlier, the AIFS SRSP findings just described have some resonances with research and theories about ‘typologies’ of family violence mainly emanating from the US in the past 25 years. A number of different ‘typologies’ of violence, drawing on research, clinical experience and theory, have been developed in the past two decades. This body of work, dominated by US theorists, clinicians and researchers, seeks to understand and describe the nature of family violence and suggests that family violence is not a uniform phenomenon but that different forms exist. It underlines the methodological complexity referred to earlier, by demonstrating that the nature of family violence as a phenomenon also varies according to the characteristics of the data through which it being described. Findings about the scope, nature and extent of family violence will be shaped by the measures used and the samples being studied. Two of the typologies most commonly referred to are those developed by Michael Johnson and colleagues from Pennsylvania State University,98 emanating from the discipline of women’s studies within a sociology framework, and Janet Johnston and colleagues, who operate as researchers and clinicians primarily with separated parents and approach the question from a psychological perspective.99 A third framework, 95 96 97 98

Kaspiew et al., 2009, above n 2, p 32. Kaspiew et al., 2009, above n 2, p 32. Information on this evaluation is available at . Michael Johnson, A Typology of Domestic Violence: Intimate Terrorism, Violent Resistance and Situational Couple Violence, North Eastern University Press, Boston, 2008. 99 Janet R Johnston and LEG Campbell, ‘A Clinical Typology of Interpersonal Violence in Disputed-Custody Divorces’ (1993) 63 Journal of Orthopsychiatry 190; see also Peter Jaffe, Janet Johnson, Claire Crooks and Nicholas Bala, ‘Custody Disputes Involving Allegations of Domestic Violence: Towards a Differentiated Approach to Parenting Plans’ (2008) 46(3) Family Court Review 500.

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which has been given less attention in the Australian literature, emanates from practicebased domestic violence scholarship.100 Over his research career, Michael Johnson developed a typology based on four different categories of violence:101 intimate terrorism (predominantly perpetrated by men), violent resistance (mainly women ‘fighting back’), situational couple violence (men and women engaged in isolated instances of, or episodic violence in response to, particular events) and mutual violent control (men and women (‘true mutuality of people fighting for control over the relationship’)).102 These typologies are based on a variety of empirical studies using different samples and methodologies. Debate on the implications of this body of work for policy and practice in Australia has been longstanding103 but it is clear that it has influence on some policy approaches104 and on the way some practitioners operate. Arguably, typologies have been a significant paradigm through which family violence generally has been understood in recent family law discourses. Writing extra-judicially, for example, Federal Magistrate (as he then was) Altobelli argued for the need to apply differentiated understandings of family violence in family law practice, at the same time recognising that ‘accurate differentiation depend[s] on the existence of clear evidence but also on the skills and experience of the one undertaking the differentiation’.105 As Altobelli acknowledges, a range of concerns has been expressed about the application of typologies in Australian practice.106 At the broadest level is the concern that the theories have not been empirically validated in Australia.107 Additionally, Jane Wangmann and Zoe Rathus argue that the American typology thinking reflects the way understandings of family violence have developed in that country, distinct from the way they have developed here. A key point in their argument is that Australian policy and legislative responses recognised non-physical forms of family violence much earlier than US ones.108 Wangmann, Rathus and others109 have expressed longstanding concerns that, rather than supporting the application of a more sophisticated understanding of family violence and its implications for family law matters, ideas based on typologies may contribute to a 100 Shamita Das Gupta, ‘A Framework for Understanding Women’s Use of Nonlethal Violence in Intimate Heterosexual Relationships’ (2002) 8 Violence against Women 1364. For other examples of typologies, see Kerrie James, Beth Seddon and Jac Brown, ‘Using It’ or ‘Losing It’: Men’s Constructions of Violence towards Their Female Partners, Australian Domestic and Family Violence Clearinghouse Research Paper No. 1, Sydney, 2002; Neil Jacobson and John Gottman, When Men Batter Women: New Insights into Ending Abusive Relationships, Simon and Schuster, New York, 1998. 101 Johnson, above n 98. 102 ibid., p 12. 103 For an early Australian critique, see Miranda Kaye, Julie Stubbs and Julia Tolmie, Negotiating Child Residence and Contact Arrangements against a Background of Domestic Violence, Research Report 1, Griffith University, Brisbane, June 2003. 104 See, e.g., the summary by Jane Wangmann, Different Types of Intimate Partner Violence—An Exploration of the Literature, Australian Domestic and Family Violence Clearinghouse, Issues Paper 22, Sydney, 2011. 105 Tom Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (2009) 23 Australian Journal of Family Law 194, 206. 106 Kaye et al., above n 103; Wangmann, above n 104; Rathus, above n 48. 107 Wangmann, above n 104, Rathus, above n 48. 108 Wangmann, above n 104; Rathus, above n 48. 109 ibid., Kaye et al., above n 103.

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less nuanced understanding of family violence being applied by practitioners. Rathus has argued that inappropriate assumptions may brought to clinical practice on the basis of the ‘categories’ described in the typologies. She argues that the common claim that most family violence is on the ‘situational couple violence’ spectrum may lead practitioners into applying an unhelpful set of preconceived ideas: [T]his risks the possibility that lawyers who learn this statistic will tend to assess violence described by their clients as falling into this category. It may dissuade lawyers from asking more probing questions to determine what really happened/s in this family.110

Rathus also argues that, if interpreted and applied through a lens based on the typologies literature, the new family violence definition in section 4AB will operate to narrow the band of cases that meet the definition, and consequently proceed through the procedural and legislative pathway designed for family violence cases (this concern was foreshadowed in the earlier discussion in 5.3).111 In this context, it is important to emphasise that the patterns identified in the AIFS SRSP research arise from a (near) representative population sample of separated parents: the data describe the spread of experiences among the general population of separated parents. As findings from the AIFS SRSP and LSSF studies also demonstrate, it is the families at the more complex end of the spectrum who engage with family law system services.112 As discussed in Chapter 7 this evidence shows that the majority of separated parents work out their own arrangements with little or no use of the family law system. Other empirical evidence reinforces the point that the parents who use court and family dispute resolution services are affected by a range of complex issues, including concerns about family violence and child safety.113 Research based on family law courts’ files shows that the majority of cases that proceed to court involve allegations of family violence and child abuse114 and one study indicates that most of these cases reflect a severe level of violence, ‘suggesting significantly injurious or abusive circumstances’.115 Another study based on data derived from files handled by dispute resolution services (n = 247, based on a sample of cases that formed a comparison group for a pilot program relating to family violence) indicated that the professional involved in the case assessed the ‘predominant aggressor’ as the male party in 80.2 per cent of cases and the female party in 9.3 per cent of cases of cases.116 The indication was that these cases are also at the more severe end of the spectrum, although they are not necessarily representative of all family dispute resolution (FDR) cases. This conclusion is supported by the report’s findings that civil protection orders had 110 111 112 113 114

Rathus, above n 48, p 384. ibid., p 387. Qu and Weston, above n 4, Figure 4.10; De Maio et al., above n 4, part 4.3. Kaspiew et al., 2009, above n 2; Kaspiew et al., 2012, above n 9. Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112; Kaspiew et al., above n 2, p 314; Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Rishardson, Lixia Qu and Matthew Gray, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-Reform Exploratory Study, Australian Institute of Family Studies, Melbourne, 2007. 115 Moloney et al., above n 114, p vii. 116 Kaspiew et al., 2012, above n 9, p 41. Data were missing or the determination could not be made for 10.5% of cases.

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been obtained in more than half of the cases in this sample, that breach of civil protection orders proceedings had occurred in relation to just under a fifth of the sample, and criminal proceedings relating to family violence were relevant in about 19 per cent of cases.117 Thus, the spectrum of experience indicated by the general Australian population survey data—and suggested by the typological theories—does not reflect the experiences of family law system service users in Australia: evidence shows that many of the experiences of these parents are on the more severe end of the spectrum compared with the average population of separated parents. The AIFS SRSP evidence, like the US typologies, confirms the variability of the experience of family violence. However, the experiences of clients in the family law system are more likely to resemble those of the parents whose experiences are at the more severe end of the spectrum in the broader population sample. Recent research evidence has also shown the complexity involved in eliciting information about family violence and making clinical assessments about the implications of that history, reinforcing the necessity to proceed carefully when making clinical assessments. Among the issues that confront professionals in this task are the differing subjective experiences their clients describe, with some targets and probably more perpetrators not recognising some behaviours as family violence.118 Also relevant are the strategies documented in empirical research and clinical literature of the tendency of perpetrators to minimise, mutualise, deny and blame the victim for the violence.119 In this context, a significant emerging emphasis in family law practice reinforces the need for effective screening and assessment processes and tools. This need was identified very clearly in the Family Courts Violence Review,120 which called for a forensic infrastructure across the courts to support the identification and assessment of family violence histories, in recognition of the importance and complexity of this task. This was also a focus of the recommendations of the Every Picture Report, 121 which were not adopted. In response to the Family Courts Violence Review recommendations and the ALRC Family Violence recommendations, the Attorney-General’s Department auspiced the development of the DOORS risk assessment framework, which provides practitioners with an electronic ‘toolbox’ for screening and risk assessment on the basis of a multilayered approach that supports the development of an individualised understanding of the circumstances of each client and the features of their situation that may highlight the 117 ibid., p 42. 118 See, e.g., Kaspiew et al., 2012, above n 9, Chapter 5. 119 See, e.g., Neil Blacklock, ‘Domestic Violence: Working with Perpetrators, the Community and Its Institutions’ (2001) 7 Advances in Psychiatric Treatment 65; James et al., above n 100; Jason Whiting, Timothy Parker and Austin Houghtaling, ‘Explanations of a Violent Relationship: The Male Perpetrators Perspective’ (2014) 29 Journal of Family Violence, 277; Amy Holtzworth-Munroe and Glenn Hutchinson, ‘Attributing Negative Intent to Wife Behaviour: The Attribution of Maritally Violent versus Nonviolent Men’ (1993) 102 Journal of Abnormal Psychology 206. 120 Chisholm, above n 3, p 152. 121 House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements on the Event of Family Separation (Every Picture Report), 2003, [2.22], available at , at 28 April 2014, Recommendation 16.

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prospect of an elevated level of risk. The role of such assessments is multifaceted and critical: immediate and ongoing risk must be assessed, as must the implications of the history, for the most appropriate dispute resolution option and the parenting arrangements that will most effectively meet the child’s needs. The lead author of the DOORS framework, Jennifer McIntosh, notes that ‘risks to life, safety and wellbeing emerge for a spectrum of factors, some recent, and others historical … Each factor can be understood as part of a continuum, and each, in turn may exert a protective or amplifying influence in the presence of other related factors’.122 The DOORS framework focuses on five mutually influencing areas: the individual psychology of each parent; the nature of the ex-couple relationship; the history and nature of the current dispute; the development of the infant or child; and the extent to which social, cultural and professional support is available to each member of the family.123 As this discussion suggests, the complexity of identifying and assessing family violence, and the presence and implications of risk factors generally, is significant. Among the researchers who have identified this complexity are Elly Robinson and Lawrie Moloney,124 who have raised a number of issues, including the need for the application of screening and assessment tools and processes to be accompanied by training and professional development to support the exercise of sound clinical judgment. Some considerations of the place typologies have in Australian policy and practice have emphasised that although they may have some value in terms of education and understanding,125 in a practice setting the guiding principle should be that nothing substitutes for a careful and nuanced clinical assessment.126 The importance of this principle is reinforced by the evidence of the adverse impact of family violence on the wellbeing of adults (in aggregate terms, any experience has a negative impact) and children (5.6). Importantly, this evidence confirms that exposure over a sustained period leads to worse outcomes, as well as showing that any exposure has an adverse impact on well-being. In summary, the discussion in this section has shown that family violence is more common than not among separated parents and that it varies substantially in frequency, severity and impact. Women are more than twice as likely as men to be victims at the more severe end of the spectrum. A body of work emanating from the US has sought to understand and describe family violence through the development of empirical and clinical ‘typologies’. This work has had some influence in policy and practice in Australia, but 122 Jennifer McIntosh, The Family Law DOORS: A New Whole of Family Approach to Risk Screening, 6th World Congress on Family Law and Children’s Rights, Sydney, March 19, 2013. 123 ibid. 124 Elly Robinson and Lawrie Moloney, Family Violence: Towards a Holistic Approach to Screening and Risk Assessment in Family Support Services, Australian Family Relationships Clearinghouse Briefing No. 17, 2010; see also Bryan Rodgers, ‘Screening for Family Violence: Some Comments Relating to Family Violence: Towards a Holistic Approach to Screening and Risk Assessment by Elly Robinson and Lawrie Moloney’ Family Relationships Quarterly, No. 19, August 2011, available at . 125 Wangmann, above n 104. 126 Rae Kaspiew and Lixia Qu, Family Violence Among Separated Couples: Prevalence and Practice Implications, Typologies of Intimate Partner Abuse—Theory and Practice Seminar, Queensland Centre for Domestic and Family Violence Research, Brisbane, Queensland, 21 February 2013, available at .

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concerns have also been raised about whether the application of ideas based on typologies may lead practitioners to make inappropriate clinical judgments. Research evidence shows that most of the parents who engage with the formal parts of the family law system— family dispute resolution and courts—have indicators that would suggest their experiences place them on the more severe end of the continuum of family violence. Recent developments such the availability of the DOORS screening and assessment tool, if adopted widely and used appropriately, have the potential to shift family law practice paradigms in relation to family violence to a focus on assessment of risk and better informed assessment of the implications of a history of family violence for ongoing parenting arrangements.

5.6 Children and family violence Increasingly, research evidence is establishing the extent to which children are affected by family violence and this issue has become a direct focus of policy development. The impact may occur in two main ways: through witnessing family violence and through experiencing the effects of family violence within their families more broadly, even though they are not directly exposed.127 Such experiences may include living in a generalised climate of stress and possibly fear and experiencing impaired care-giving from a parent subjected to family violence.128 Some literature suggests that perpetrators of family violence are more likely to exhibit neglectful and authoritarian parenting behaviours,129 which are less likely to lead to positive developmental outcomes in children.130 Further, other types of child abuse are more likely to occur in families where there is adult-to-adult violence than in families where this does not occur.131 The AIFS SRSP and LSSF studies, referred to earlier, provide new insight into the extent to which children are affected by family violence. In the AIFS LSSF Wave 1, of the parents who reported experiencing physical hurt before separation, 72 per cent of mothers and 63 per cent of fathers reported that the children witnessed this violence.132 This issue was examined in more depth in the SRSP, with the findings showing that of the parents who reported experiencing physical or emotional abuse before or during separation, 53 per cent of fathers and 64 per cent of mothers said the children had witnessed the violence. In relation to the post-separation period, 43 per cent of fathers and 50 per cent

127 Kaspiew et al., above n 2, part 11.3; De Maio et al., above n 4, part 7.2. 128 Leah Bromfield, Alister Lamont, Robyn Parker and Briony Horsfall, Issues for the Safety and Wellbeing of Children in Families With Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Misuse, and Mental Health Problems, National Child Protection Clearinghouse Issues Paper 33, Australian Institute of Family Studies, Melbourne, 2010. 129 Jennifer Hardesty, Megan Haselschwerdt and Michael Johnson, ‘Domestic Violence and Child Custody’ in Kathryn Kuehnle and Leslie Drozd (eds), Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press, New York, 2012, p 467. 130 For example, Paul Amato and J Gilbreth, ‘Non-Resident Fathers and Children’s Well-Being: A Meta-analysis’ (1999) 61 Journal of Marriage and Family, 557; Jennifer Baxter and Diana Smart, Fathering in Australia among Couple Families with Young Children, Occasional Paper No. 37, FaHCSIA, Canberra ACT, 2010, , 8 May 2014. 131 For example, Bromfield et al., 2010, above n 128. 132 Kaspiew et al., 2009, above n 2, p 26.

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of mothers who reported experiencing physical or emotional violence said the children had witnessed it.133 Further concerning findings emerge from both studies about the proportion of parents who hold safety concerns for themselves and/or their children as a result of ongoing contact with the other parent. In each study, just under a fifth of parents reported holding such concerns.134 In each study, the mothers were more likely to report current concerns for both themselves and their child than fathers and were also more likely than fathers to indicate that the person who was the source of the concerns was the other parent.135 Fathers in each study were more likely than mothers to indicate that the other parent’s partner was the source of the concerns.136 Findings from Wave 3 of the LSSF show that for 4.7 per cent of families, concerns about safety arising from ongoing contact with the other parent were sustained over the three waves of the survey, reflecting a period of some five years.137 The AIFS research also shows that children who live in families where family violence occurs have lower well-being than children in homes where this does not occur,138 adding to the established evidence base on the negative effects of family violence on children.139 These effects are evident even in the absence of direct exposure, but where such exposure occurs, well-being outcomes are lower still.140 Parents’ accounts of the negative impact of witnessing family violence on their children show three particularly common effects. The effects most frequently named were stress, fear and anxiety. Two types of adverse impact on social behaviour were also raised: becoming socially disengaged and manifesting aggression and violence.141 There is also a growing field of neurodevelopmental research showing that exposure to family violence may have permanent effects on the development of the brain in young children, especially in the absence of therapeutic intervention.142 It is also clear, however, that negative impacts are not uniform or inevitable. Some research suggests a degree of resilience, or ability to recover, among some groups of children;

133 De Maio et al., above n 4, part 3.7. Figure 3.9 (included in part 3.7) sets out further analysis according to type of violence witnessed by children (physical or unwanted sexual activity versus emotional abuse). 134 Kaspiew et al., above n 2, p 28: in the LSSF W1, 21% of mothers and 17% of fathers reported such concerns. The SRSP 2012 findings are similar, with 20.4% of mothers and 13.6% of fathers with concerns: De Maio et al., above n 4, Table 3.6. 135 Kaspiew et al., above n 2, p 28; De Maio et al., above n 4, parts 3.8 and 3.9. 136 For LSSF W1, 8.4% mothers had current safety concerns for both child and self cf 2.6% fathers and of those responding with safety concerns 92.3% mothers reported this was about the other parent cf 68.3% fathers: Kaspiew et al., above n 2, p 28; for SRSP, 8.0% mothers reported ongoing safety concerns for both the focus child and self cf 3.1% fathers, of those with safety concerns 92.9% mothers reported this was about the other parent cf 70.8% fathers: De Maio et al., above n 4, pp 38–9. 137 Qu et al., above n 55, Table 3.8. 138 De Maio et al., above n 4, p 91. 139 See Australian Domestic and Family Violence Clearinghouse, The Impact of Domestic Violence on Children: A Literature Review, The Benevolent Society, Sydney, 2011. 140 De Maio et al., above n 4, part 7.2.2. 141 ibid., part 7.2.3. 142 Bruce Perry, Violence and Childhood: How Persisting Fear Can Alter the Developing Child’s Brain (a special ChildTrauma Academy website version of The Neurodevelopmental Impact of Violence in Childhood), , 28 April 2014.

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however, the factors that support resilience and recovery are not well understood.143 Factors such as age, temperament and wider family—including the quality of relationships between the child and non-violent family members—play a role.144 As discussed in Chapter 6 an ongoing debate concerns the question of whether particular types of parenting arrangements promote or undermine healthy development in children generally, and in circumstances of conflict and violence particularly. There is evidence that shared care arrangements may not be optimal for children where there is high conflict,145 but as yet the question of what types of parenting arrangements promote healthy development among children where damage from exposure to family violence has occurred is unanswered and research focusing on this question is just beginning.146 Since the 1980s there has been judicial acknowledgment of the relevance of family violence to making FLA parenting orders. Legislative recognition of the need to address children’s exposure to family violence in the context of post-separation parenting arrangements has come more recently still. The 2012 amendments to Part VII of the FLA include provisions that recognise the implications of exposure to family violence. Such exposure (as well as being directly subjected to family violence) is recognised as a form of ‘abuse’ when it causes ‘the child to suffer serious psychological harm’ (FLA section 4). ‘Exposure’ is further defined in section 4AB as: (3)

For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

Further, non-exhaustive examples are provided in section 4AB(4): (a) (b) (c)

overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

143 Gayla Margolin, ‘Children’s Exposure to Violence: Exploring Developmental Pathways to Diverse Outcomes’ (2005) 20 Journal of Interpersonal Violence 72; Australian Domestic and Family Violence Clearinghouse, The Impact of Domestic Violence on Children: A Literature Review, University of New South Wales, Sydney, 2011, p 16, ; Abigail Gewirtz and Jeffrey Edleson, ‘Young Children’s Exposure to Intimate Partner Violence: Towards a Development Risk and Resilience Framework for Research and Intervention’ (2007) 22 Journal of Family Violence 151; Laura Hickman, Lisa Jaycox, Claude Setodji, Aaron Kofner, Dana Schultz, Dionne Barnes-Proby and Racine Harris, ‘How Much Does “How Much” Matter? Assessing the Relationship Between Children’s Lifetime Exposure to Violence and Trauma Symptoms, Behaviour Problems and Parenting Stress’ (2013) 28 Journal of Interpersonal Violence 1338. 144 See, e.g., the discussion in Gewirtz and Edleson, above n 143. 145 See, e.g., Judy Cashmore, Patrick Parkinson, Ruth Weston, Roger Patulny, Gerry Redmond, Lixia Qu, Jennifer Baxter, Marianne Rajkovic, Tomasz Sitek and Ilan Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the Australian Government, Attorney-General’s Department, Social Policy Research Centre, University of New South Wales, Sydney, 2010; Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells and Caroline Long, Post-Separation Parenting Arrangements and Developmental Outcomes for Children: Collected Reports, Family Transitions, Melbourne, 2010; Jennifer McIntosh and Richard Chisholm, ‘Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation’ (2008) 14 Journal of Family Studies 37; Joan Kelly, ‘Children’s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research’ (2000) 39 Journal of the American Academy of Child and Adolescent Psychiatry 963. 146 See, e.g., a study being undertaken by Bruce Smyth, available at , 29 April 2014.

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(d) (e)

cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Even though significant proportions of children witness family violence, as noted earlier, the application of these provisions in a technical sense will be narrowed by the requirement to establish that the exposure ‘caused psychological harm’ (section 4). At the time writing, there was very little jurisprudence on this aspect of the reforms (as discussed further in Chapter 8). It remains to be seen how this recognition of the exposure of children to family violence will play out in practice. In the child protection context, recognition of family violence as a form of child abuse has led to concerns about non-perpetrator mothers, rather than fathers as perpetrators, being held responsible.147

5.7 Family Law Act approaches A long-range consideration of family law policy changes and the reports and reviews underpinning them reveals that a consistent tension since the mid-1990s has been a concern to encourage both parents (in particular fathers) to remain involved in their children’s lives after separation and to protect children from harm from exposure to abuse and family violence. This tension is evident very strongly in the Every Picture Report that lead to the Howard Government’s 2006 amendments,148 and in the reforms themselves, but has also been evident before and after that, as this part of the chapter explains. Prior to the 2006 amendments, explicit reference to family violence in the FLA from 1996 required courts to consider the need to protect children from physical or psychological harm from abuse, ill-treatment, violence or other behaviour in considering the factors relevant to determining ‘best interests’.149 In early Family Court of Australia (FCoA) jurisprudence, the issue of violence was originally obscured by an emphasis on the ‘no fault’ philosophy of the FLA150 and past conduct was largely considered irrelevant to decision making. On the basis of an analysis of decision making in matrimonial cases pre-dating the FLA, Rhoades and colleagues argue that the FLA ‘silenced’ a professional awareness of family violence and its implications for post-divorce decision making evident among lawyers, judges and counsellors in the pre-FLA era.151 For the first decade and a half or so, FCoA case law under the FLA, both in property and children’s matters, was permeated by a view that consideration of violence was irrelevant.152 In the early 1990s, the FCoA 147 Cathy Humphreys, Domestic Violence and Child Protection: Challenging Directions for Practice, Issues Paper 13, Sydney, Australian Domestic and Family Violence Clearinghouse. 148 Every Picture Report, above n 121, Recommendations 2 and 16. 149 Rae Kaspiew, ‘Family Violence in Children’s Cases Under the Family Law Act 1975 (Cth): Past Practice and Future Challenges’ (2008) 14 Journal of Family Studies 279. 150 See, e.g., Juliet Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse’ (1993) 7 Australian Journal of Family Law 9; Regina Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 Australian Journal of Family Law 58, 66. 151 Helen Rhoades, Charlotte Frew and Shurlee Swain, ‘Recognition of Violence in the Australian Family Law System: A Long Journey’ (2010) 3(24) Australian Journal of Family Law 296, 297. 152 Justice KA Murray, ‘Domestic Violence and the Judicial Process’ (1995) 9 Australian Journal of Family Law 26.

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began to acknowledge in case law that violence was a factor to be taken into consideration in relation to both property and children’s matters.153 However, even as the case law on the relevance of family violence to children’s and property matters was developing, it was clear that the Court was concerned to ensure that the floodgates would remain closed, with violence being relevant only in a narrow band of cases where high standards of severity and evidentiary support could be met.154 Despite the new emphasis on family violence in the Family Law Reform Act 1995 (the 1996 amendments),155 an increased focus on the child’s right to contact156 (see Chapter 6) in the same set of amendments had the effect that violence arguably became even less visible than before.157 The Every Picture Report of the Parliamentary Committee that lead to the 2006 amendments recommended measures intended to strengthen legislative support for fathers’ involvement post-separation, at the same time as recognising that the system’s capacity to deal with family violence and child abuse needed to be improved.158 The legislative changes introduced in response to the report pursued both of these aims, although it was the support for shared parenting that received most attention in the press and from lobby groups, particularly fathers’ rights groups. A change central to both aims was the introduction of a presumption of equal shared parental responsibility (FLA section 61DA) with a linked obligation on the courts to consider making orders for equal or substantial and significant time where orders for equal shared parental responsibility were made pursuant to the presumption (section 65DAA), and such arrangements were deemed to be in a child’s best interests and reasonably practicable (sections 65DAA(2)). In legal terms, the presumption is highly qualified: it is not applicable where there are reasonable grounds (a low evidentiary threshold) to believe a parent has engaged in family violence or child abuse (section 61DA(2)) and it is rebuttable on the basis of evidence establishing that its application would not be in the child’s best interests (requiring proof to the balance of probabilities) (FLA section 61DA(4)).

153 Graycar, above n 150. 154 See, e.g., Cassandra Kathleen Kennon (Appellant/Wife) and lan William Kennon (Cross-Appellant/Husband) Appeal [1997] FamCA 27; 22 Fam LR 1, where the court was concerned to articulate limits on the way violence could be relevant in property matters to prevent it from becoming ‘common coinage’ (at 24); see also the discussion of evidentiary issues in In the Marriage of JG and BG (1994) 18 Fam LR 255, 261–3. For an analysis of violence in children’s matters under the Reform Act 1996 see Kaspiew, 2005, above n 114. 155 For example by inserting into the FLA s 68F(2)(g) and s 68J. 156 John Dewar and Stephen Parker, Parenting, Planning and Partnership: The Impact of the New Part VII of the Family Law Act 1975, Family Law Research Unit Working Paper No. 3, Griffith University, 1999 (‘Parenting Planning and Partnership’), p 83. A shorter version of this report has been published as ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96. See also Helen Rhoades, Regina Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (the ‘First Three Years Report’), University of Sydney and Family Court of Australia, 2000, p 6, [1.21]. 157 John Dewar and Stephen Parker, ibid. See also Helen Rhoades, Regina Graycar and Margaret Harrison, ibid.; Kaye et al., above n 103; Kaspiew, 2005, above n 114; Amanda Shea Hart, ‘Children Exposed to Domestic Violence: Undifferentiated Needs in Australian Family Law’ (2004) 18 Australian Journal of Family Law 170. 158 Every Picture Report, above n 121.

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The 2006 amendments also involved the adoption of a tighter definition of family violence in the FLA (a requirement for fear or apprehension to be experienced ‘reasonably’ in the subject’s circumstances), a narrower approach to the kinds of civil protection orders that were specifically considered under the FLA when parenting orders are made (excluding those obtained on an interim basis in the absence of the other party)159 and the introduction of measures subsequently considered to contribute to concerns about family violence and child safety not being raised in court proceedings.160

5.7.1 The 2012 family violence amendments In addition to introducing the wider definition of family violence relevant to all proceedings under the Act, the 2012 amendments made changes to Part VII of the FLA that were intended to produce two main shifts in the way matters involving family violence and child abuse are dealt with: first, to ensure that concerns about family violence and child safety are brought to the attention of decision makers and, second, to ensure that the aim of protecting children from harm is given priority over maintaining a meaningful relationship with both parents after separation, where these aims are in conflict.161 The rationale for these aims is grounded in empirical evidence about the operation of the 2006 amendments162 and the analyses by Richard Chisholm and the Family Law Council,163 referred to earlier, that highlighted the need for reform across the system to support better handling of family violence and child safety. One of the core relevant empirical findings to come from the 2009 AIFS Evaluation of the 2006 family amendments was that families where there had been a history of family violence and/or the presence of ongoing concerns about safety were marginally more likely than families without these concerns to have shared time parenting arrangements.164 Such families were also more likely to have used family law system services than other families, suggesting that the ‘system, to some extent is instrumental in producing, or at least not preventing’ such arrangements.165 As the description of the presumption set out about above clearly indicates, such an outcome is not consistent with the intent behind the 2006 amendments although it was a likely effect of the tension between shared parenting and safety-focused policy goals. Released on the same day as the AIFS Evaluation was the Family Courts Violence Review, in which Richard Chisholm identified a need for family violence to be ‘disclosed, understood, and acted upon’.166 To support this aim, his report made a number of recommendations for change, including legislative amendments to support disclosure (repealing provisions 159 FLA s 60CC(3)(k). 160 The provisions were s 117AB—costs order for ‘knowingly’ made false statements and s 60CC(3) requiring courts to consider the extent to which one parent had facilitated the other parents relationship with the child. Chisholm, above n 3, recommended the repeal of s 117AB and the amendment of s 60CC(3)7, and the Commonwealth Parliament repealed both. 161 Both these goals were identified as important in the Family Courts Violence Review: Chisholm, above n 3. 162 Kaspiew et al., above n 2, Bagshaw et al., above n 71. 163 Chisholm, above n 3. 164 Kaspiew et al., above n 2, pp 232–3. 165 R Kaspiew, M Gray, L Qu and R Weston, ‘Legislative Aspirations and Social Realities: Empirical Reflections on Australia’s 2006 Family Law Reforms’ (2011) 33(4) Journal of Social Welfare and Family Law 397, 402. 166 Chisholm, above n 3, p 6.

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considered to discourage disclosure and imposing obligations on various actors to ask about family violence), and increasing the level of family violence expertise among professionals across the system. The 2012 amendments responded to the Family Courts Violence Review and the other empirical evidence, including the AIFS Evaluation of the 2006 family law amendments, by: • introducing a wider definition of family violence (see 5.3) (section 4AB); • providing that where the principle of protecting children from harm stands in conflict with the principle of ensuring they maintain a meaningful relationship with each parent after separation, protection from harm is to be given greater weight (section 60CC2A); • imposing an obligation on advisors (professionals who provide advice to separated parents, including support service professionals, family dispute resolution practitioners and lawyers) to inform parents that parenting arrangements should prioritise the right to be protected from harm over maintaining meaningful relationships where this is a concern (section 60D(1)(iii)); • imposing an obligation on parties to inform courts about any attention from a child protection department that has been directed to a child in a matter or a member of that child’s family (section 60CI(2)); • imposing an obligation on courts to actively inquire about the existence of risk of child abuse and family violence (section 69ZQ(aa)); • repealing provisions that may discourage concerns about family violence and child safety from being raised, including what became known as the ‘friendly parent provision’ and a provision obligating courts to make costs orders against a party found to have ‘knowingly made a false statement’ in court proceedings;167 • recognising the exposure of children to family violence as a form of abuse (section 4, section 4AB, see 5.6). Subsequently, the findings of the AIFS SRSP 2012 have provided insight into the experiences of parents prior to the 2012 reforms and further evidence that they were needed. These findings have indicated an ‘uneven set of behaviours and practices’ in relation to parents disclosing concerns about family violence and child safety and professionals eliciting such concerns.168 A substantial minority of parents who held such concerns indicated they did not disclose them to family law system professionals. Parents were also more likely to say they had disclosed concerns about child safety (69.5 per cent) than family violence (40.5 per cent) where they reported holding such concerns, but were more likely to report that ‘nothing happened’ in relation to disclosures about child safety concerns (41 per cent) than about family violence (35 per cent).169 Moreover, of the parents who nominated a formal pathway (counselling, mediation, Family Dispute Resolution, lawyers, courts) as the ‘main pathway’ for sorting out parenting arrangements 41.0 per cent of fathers and 30.3 per cent 167 Family Law Legislation Amendment (Family Violence and other Measures) Bill 2011 (Cth), Items 18 and 43. 168 De Maio et al., above n 4, p 119. 169 ibid., Figure 5.2 and Figure 5.4.

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of mothers indicated they had not been asked about these issues by professionals.170 Not surprisingly in light of these findings, parents who reported concerns about family violence and safety were much less positive about the efficacy of the family law system than parents without these concerns.171 This and other recent evidence is consistent with earlier studies and analyses that have raised concerns about the family law system’s ability to deal with family violence effectively for a range of reasons.172 These include a lack of understanding among family law system practitioners of family violence,173 the complexity of the legislation,174 and a lack of infrastructure to support family violence identification and assessment.175 Despite the measures described earlier—including the availability of the DOORS risk assessment tool—it is unlikely that the dynamics giving rise to these concerns will change quickly, particularly in an environment where there are concerns about insufficient resources in the system, including the availability of Legal Aid.176 These themes have been highlighted clearly again recently in research examining the practices of independent children’s lawyers (ICLs), who are appointed in about a third of parenting matters, funded by legal aid, and whose caseload is dominated by matters involving family violence and child abuse.177 This research has highlighted a need for an increased focus on family violence and child safety in training and professional development of these practitioners. The findings are discussed more fully in Chapter 7 but some findings are particularly pertinent to this discussion of violence and abuse. Of particular relevance is the lack of confidence expressed by participants in the capacity of ICLs to handle tasks associated with risk assessment and risk management with parents, and to a lesser extent children, which emerged as a significant theme in the research. This is evidenced by lower ratings of ICL ability in these areas by all professionals involved in the research, compared with other ICL tasks, and particularly by non-ICL lawyers.178 Of this group, just 30 per cent rated ICL ability to respond adequately to risks to parents positively. ICLs themselves returned lower ratings of their own ability in this regard as well.179 The data derived from interviews with parents and children for the project further reinforce concerns in this area, suggesting that the practices of some ICLs fall short of providing an effective response.180 However, the data also suggest that, in some instances, ICLs are critical to ensuring that 170 ibid., Table 5.5. 171 ibid., Table 6.2 and Table 6.3. 172 See, e.g., Kaye, Stubbs and Tolmie, above n 103; Dewar and Parker, above n 156; Kaspiew et al., above n 2; Bagshaw et al., above n 71; Chisholm, above n 3; Family Law Council, above n 3. 173 For example, Bagshaw et al., above n 71. 174 Chisholm, above n 3. 175 Every Picture Report, above n 121; Chisholm, above n 3. 176 In February 2014, the Chief Justice of the Family Court of Australia, the Honorable Diana Bryant, took the unusual step of discussing her concerns in the media about a lack of resources (including Legal Aid) impairing the courts’ ability to deal with family violence risk: . See also the Hon Justice Steven Strickland and Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (2014) 28 Australian Journal of Family Law 1. 177 R Kaspiew, R Carson, S Moore, J De Maio, J Deblaquiere, B Horsfall, Independent Children’s Lawyer Study: Final Report, Australian Institute of Family Studies, Melbourne, 2013. 178 ibid., Table 7.3. 179 ibid., Table 7.3. 180 ibid., part 8.4.3.

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protective concerns are brought before the court.181 The overall picture that emerges from the research is that a range of issues impinges on the question of whether ICL practice is effective in cases involving family violence and child abuse, including those that are individual (the competence of some practitioners was called into question by a significant number of professional and parent participants in the research) and systemic (concerns about funding, accreditation and training also play a part).182 Other research has highlighted the role professional attitudes play in determining whether legal responses to family violence are effective. A study by Rosemary Hunter of attitudes to family violence manifested by system players across state and federal jurisdictions has shown that, despite pro-feminist law reforms in these areas, ‘non-feminist’ approaches to domestic violence were most prevalent among lawyers and legal decision makers.183 Hunter’s research found that such beliefs: predominated in many lawyers’, magistrates’ and judges’ minds and were highly influential in the way they went about their representative and adjudicative roles. The non-feminist narratives were that violence is manifested in isolated incidents of physical assault and occurs exceptionally; that women tend to lie or exaggerate about abuse; that violence is caused by provocation, relationship conflict, alcohol, and cultural norms among ‘ethnic’ communities; that there is no relationship between a man’s violence towards his partner and his parental capacity; and that victims of violence suffer from a psychological disorder.184

Hunter concludes that the outcomes produced as a result were questionable with respect to the extent to which they achieved safety for women in both state and FCoA arenas. Specifically, ‘many of the consent orders … clearly perpetuated rather than prevented the father’s future control and abuse of the mother’.185 Underlining the impact that the attitudes of system players have on overall effectiveness and accessibility of the system, Hunter’s study reinforces the point that these may well be more influential than the legal frameworks themselves and that professional development in relation to family violence and child safety needs to be thorough and ongoing. The theme of lawyers, courts and police being inadequately equipped to deal with family violence is a common one in the literature in this area.186 Carolyn Johnson’s research on familicide—that is, situations in which a parent, typically a father, has killed his child or children and then committed or attempted to commit suicide—exposes the most serious potential implications of these system failures. This study showed that the history of 181 ibid., part 8.4.3 and 4.2. 182 ibid., Chapter 9. 183 Rosemary Hunter, Women’s Experience in Court: The Implementation of Feminist Law Reforms in Civil Proceedings Concerning Domestic Violence, Unpublished PhD thesis, Stanford University, 2005, p 305. 184 ibid., p 305. See also Hunter, above n 62. 185 Hunter, above n 62, p 773. 186 For example Hunter, above n 62; Parenting Planning and Partnership, above n 156, p 38; Hayley Katzen, ‘It’s a Family Matter, Not a Police Matter: The Enforcement of Protection Orders’ (2000) 14(2) Australian Journal of Family Law 119; Rendell et al., above n 77. However, highlighting the power of institutional responses, Edwards’ research, above n 74, showed that police action in removing a violent offender from the family home, followed by the granting of court orders excluding the perpetrator from the home, could be decisive in allowing women and children to stay in their homes on a long-term basis: p 29.

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violence that preceded fatal incidents was underreported by victims and underrecognised by professionals. In examining the history behind seven Western Australian cases of familicide (resulting in 23 deaths, including 15 of children) that occurred mainly between 1989 and 1999, Johnson reported: Women commented on the general inability of the court to fully understand emotional disturbance resulting from separation, and the associated risks this posed to families, as well as its impotence in restricting the behaviour of disturbed individuals. Restraining orders were seen as virtually useless and family court orders when breached rarely incurred penalties. There were criticisms of lawyers, the family court, and of the family court counselling services.187

The challenges in predicting lethal violence are significant: so too are the implications of failing to predict such risk. In summary, the discussion in this section has detailed successive legislative shifts in the FLA in the past 20 years and the ways in which they have attempted to address family violence and child abuse in family law parenting matters. The most recent changes introduced in 2012 are intended to encourage disclosure of such concerns and ensure that protection from harm is prioritised over the child’s right to meaningful involvement with each parent in family law matters. The backdrop to this position is a coordinated national commitment to reducing family violence through the implementation of the National Plan to Reduce Violence against Women and Their Children. A further issue is longstanding recognition of the roles that professional skill and understanding play in determining whether systemic responses to family violence are effective or ineffective. Recent developments, such the DOORS and AVERT training packages, address this point, but it is also clear from research evidence that substantial change is needed in professional approaches. Similar issues and themes arise in the next section, which provides an overview of state-based civil protection orders systems, including recent developments in Victoria.

5.8 Civil protection orders This section is an introduction to the state- and territory-based legal frameworks that attempt to provide protection from family violence and abuse. It begins with a discussion of the purpose of civil protection orders, and also canvasses some of the complex policy questions to which these legal frameworks give rise.188 These include the issue of how these frameworks fit in with the criminal justice system and the definitional issues surrounding the conduct to which they respond. Our aim is to provide a general overview of how statebased civil protection frameworks operate, and to introduce some of the conceptual issues 187 Carolyn Harris Johnson, ‘Familicide and Family Law: A Study of Filicide–Suicide Following Separation’ (2006) 44(3) Family Court Review 448, 463. 188 For an overview of the different frameworks, see, e.g., The National Council to Reduce Violence against Women and Their Children, Domestic Violence Laws in Australia, Department of Families, Housing, Community Services and Indigenous Affairs, Canberra, 2009. Some jurisdictions have changed their laws since this report was completed: see Department of Families, Housing, Community Services and Indigenous Affairs, National Plan to Reduce Violence against Women and Their Children: Progress Report 2010–2012, Commonwealth of Australia, Canberra, 2013.

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they raise, rather than to provide a detailed state-by-state analysis. In order to illustrate the approaches that may be taken, the Victorian legislation is used as an example. Overall, empirical evidence indicates that men and women who experience family violence do not commonly report the violence to police. The ABS Personal Safety Survey 2012 shows that one-fifth of women who experienced violence by a current partner had reported the violence to police. Around two-fifths of women who reported violence by their most recent previous partner had contacted police. Of these, half had a restraining order issued and nearly three-fifths of these women reported experiencing further violence.189 The vast majority of men who had experienced violence at the hands of a current or previous partner had not reported the experience to police (95 per cent and 80 per cent respectively).190 Frameworks for civil protection orders—known variously as restraining orders, apprehended violence orders (AVOs), family violence orders or domestic violence orders191—were the main legislative response to growing recognition that existing legal mechanisms failed to protect women from family violence and abuse. Feminist critiques through the 1970s and 1980s highlighted systematic institutional failure to address family violence and abuse192 and the inability of the criminal justice system to protect women from future violence.193 New laws providing for civil protection orders were enacted in most states in the 1980s and 1990s and operate by placing restrictions on the perpetrator of the violence. They are a civil remedy in nature—meaning that a complainant, or increasingly the police, must apply for the order. The case must be proven on the civil standard of proof, the balance of probabilities. These applications are made in a court of summary jurisdiction. When a civil protection order has been made by a court, breaches of the terms become a criminal offence, opening up the possibilities of a police response and criminal proceedings. Similar orders may also be made by the Family Court of Australia and the Federal Circuit Court of Australia exercising FLA jurisdiction,194 although these orders are sought less often than orders under state legislation. The conditions and prohibitions in civil protection orders can be tailored to reflect the particular circumstances of the case and can include restraining the respondent from approaching the applicant and prohibiting the respondent from entering the premises on which he and the applicant have resided. The substantive law is also backed by various special processes, including processes for making interim ex parte (in the absence of the respondent) orders, access to legal aid and support services, and a system for registration and enforcement of orders across state boundaries. In Victoria, an innovative feature of legislation enacted in 2008 allows for police to issue a personal safety notice, which is 189 ABS above n 52, Table 23. 190 ibid. 191 Different statutes adopt different names for these orders. In Victoria, for example, they are ‘family violence intervention orders’ under the Family Violence Protection Act 2008 (Vic), in NSW they are ‘apprehended domestic violence orders’ (s19, Crime (Domestic and Personal Violence) Act 2007 (NSW). 192 For example Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Viking, New York, 1988. 193 Regina Graycar and Jenny Morgan, The Hidden Gender of Law, 2nd edn, Federation Press, Sydney, 2002, p 317. 194 FLA ss 114 and 68B. The jurisdictional restrictions discussed in Chapter 3 apply to these injunctions.

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effective until an application for a family violence intervention order is considered by a court (section 30). Police in Western Australia, South Australia, Tasmania and the Northern Territory have similar powers.195 In the past few years, most jurisdictions have embarked on reforms of the original frameworks.196 These second-generation reforms have focused on widening the definitions of violence, broadening the scope of relationships covered, resolving conflicts between state orders and federal parenting law orders, and ensuring that children who witness or experience family violence and abuse are also protected.197 More broadly, some jurisdictions have also introduced specialist domestic violence courts or lists within existing courts,198 in recognition of the need to address difficulties that go beyond the wording of the statute and extend into the arena of legal profession practices and attitudes, including those of the judiciary and magistracy. Queensland researchers Heather Douglas and Robyn Fitzgerald observe that: the legislative responses to DV [domestic violence] have become increasingly complex, multi-layered and  contingent … more than statute reform is required to perfect the legal response to DV as the impact of legal change is dependent on wider social and cultural contexts.199

There is some research that suggests that some family law practitioners believe that personal protection orders are obtained for tactical reasons in circumstances where they are not really warranted when family law proceedings are pending. For example, a study by Patrick Parkinson and Judy Cashmore has suggested that some family law practitioners view personal protection orders with some suspicion, holding the belief that where family law proceedings are, or may be, on foot, they may have been obtained for tactical rather than protective purposes.200 The implications of this claim are that women are applying for intervention orders to establish a history of family violence in subsequent family law court 195 Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 368. 196 National Council to Reduce Violence against Women and Their Children, above n 7. See also FaHSCIA, Progress Report, above n 188. Analyses of the effectiveness of these frameworks include Auditor-General for Western Australia, A Measure of Protection: Management and Effectiveness of Restraining Orders, Report No. 5, October 2002, p 6; Suzanne Hatty, Male Violence and the Police: An Australian Experience, School of Social Work, University of New South Wales, Kensington, 1990; Katzen, above n 186; Lily Trimboli and Roseanne Bonney, An Evaluation of the NSW Apprehended Violence Order Scheme, New South Wales Bureau of Crime Statistics and Research, 1997, p vii; Julie Stubbs and Diane Powell, Domestic Violence: Impact of Legal Reform in NSW, New South Wales Bureau of Crime Statistics and Research, 1989; Rosemary Wearing, Monitoring the Impact of the Crimes (Family Violence) Act 1987, La Trobe University, Melbourne, 1992; Margrette Young, Julie Byles and Annette Dobson, ‘The Effectiveness of Legal Protection in the Prevention of Domestic Violence in the Lives of Young Australian Women’, Trends and Issues in Crime and Criminal Justice, No. 148, Australian Institute of Criminology, Canberra, 2000. 197 Karen Wilcox, ‘Recent Innovations in Australian Protection Order Law—A Comparative Discussion’ Topic Paper No. 19, Domestic and Family Violence Clearinghouse, Sydney, 2010. 198 See Progress Report on the National Plan 2010–2012, above n 188. Julie Stewart, Specialist Domestic/Family Violence Courts within the Australian Context, Issues Paper 10, Australian Domestic and Family Violence Clearinghouse, Sydney, 2005. 199 Heather Douglas and Robin Fitzgerald, ‘Legal Processes and Gendered Violence: Cross-Applications for Domestic Violence Protection Orders’ (2013) 36 University of NSW Law Journal 56, 86. 200 Patrick Parkinson, Judy Cashmore and Atlanta Webster, ‘The Views of Family Lawyers on Apprehended Violence Orders after Parental Separation’ (2010) 25 Australian Journal of Family Law 313; such views, and contrary views, were also reported in Kaspiew et al., above n 2, at part 10.4.4.

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proceedings, rather than actually needing them for protection. Such concerns have been reflected in a series of amendments to the provisions regarding the best interests checklist in the FLA (section 60CC). In 2006, these provisions were amended to provide that the court was to have regard only to final orders made after a contested hearing. They were changed in 2012 to provide that the court should take into account in any family violence order the circumstances in which it was made, reflecting a revision of the 2006 approach (FLA section 60CC(3)(k)). In contrast to the reported views of some family lawyers, the overall evidence about the use and operation of civil protection orders establishes that use of these systems can be difficult and even traumatic for women and, as reported earlier, family violence is significantly underreported to police. Recently, a parliamentary committee in NSW concluded that ‘the court system can be so traumatic for some victims of domestic violence that they are deterred from ever returning to court again’.201 Over a long period, research has consistently highlighted the difficulties women encounter when using these processes.202 Most recently, Lesley Laing’s study of 40 women’s experiences of the NSW protection order system found a mixture of positive and negative experiences with different parts of the process.203 The research uncovered: a continuum of responses, [at one end] there were some women who were primarily positive about their experience of the process and the outcomes, and at  the  other,  women who regretted having ever becoming involved in the  legal  system.  However, for the majority of the women, their experiences were more nuanced. A devastating legal outcome, for example, might be balanced by empathic support offered by someone in the system: a woman may be well supported through a protracted process and referred to essential resources outside the system.204

More than half of the women in the sample had experience of both family law processes and personal protection order processes. A common experience of these women was a sense that their situation was treated in each legal forum with scepticism, even though they had experienced very severe violence. Consistent with findings of an earlier study by Laing,205 one woman was advised by police to confine her attempts to seek protection to the family court: [H]owever, she found that her ex-partner continually breached Family Court interim orders and to deal with this she faced great expense in going back to the Family Court … She has found the process between the two systems confusing and had received contradictory advice from service providers.206 201 New South Wales Parliament, Legislative Council Standing Committee on Social Issues, Domestic Violence Trends and Issues in NSW, NSW Parliament, Sydney, 2012. 202 See, e.g., Hunter above n 62. 203 Lesley Laing, It’s like This Maze That You Have to Make Your Way Through: Women’s Experiences of Seeking a Domestic Violence Protection Order in NSW, University of Sydney, Sydney, 2013. 204 ibid., p 70. 205 Lesley Laing, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence, The University of Sydney, Sydney, 2010. 206 Laing, above n 203, p 52.

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Other studies have shown that, despite experiencing violence, threats and fear, women have chosen not to obtain intervention orders and that, in cases where they have obtained them, they have been ineffective.207 Overall, there is little direct empirical evidence that supports the view that protection orders are obtained for tactical purposes to any significant extent: what is reported are perceptions along these lines, rather than any hard data. In light of evidence of the prevalence of family violence among separated couples, such views are concerning as they may contribute to a tendency for concerns about family violence to be dismissed too readily. The data on the rates at which family violence is reported to police and the proportion of cases in which civil protection orders are subsequently obtained suggest the significant issue in this context is underuse of these systems rather than spurious use of them. The empirical evidence that does exist shows that some victims of family violence can find personal protection order systems difficult to use, with varying attitudes and approaches among the personnel in the system, as well as fragmentation among intersecting frameworks in family law, child protection and family violence, impairing their capacity to achieve a coherent response to their needs.

5.8.1 Practical and conceptual tensions A number of tensions exist in debates concerning attempts to respond to family violence via civil protection order legislation; these are also relevant more generally to our discussion in this chapter. These tensions revolve around three themes. The first is the way that legal responses (and the operational mechanisms behind them) allow for agency (power of choice) to be exercised by those for whom protection is sought—the agency dilemma. This dilemma can be seen most clearly in whether the protected person has control over whether proceedings are instituted under protective frameworks and are subsequently maintained or discontinued. The second is the way that implementation of legal responses is consistent with the intent to provide protection for victims and avoids being used in ways not envisaged—the ‘unintended consequences’ phenomenon. An example of unintended consequences is the recent emergence of an apparently growing tendency for so-called ‘mutual’ orders to be issued so that each party in a matter is subject to, and protected by, a personal protection order. The third is whether the frameworks are configured in a way that is inconsistent with a policy-based intention to recognise the criminality of family violence—the decriminalisation concern. These three themes, which are now examined in more depth, illustrate the complexity, and shifting ground, in the ways in which family violence is defined and responded to in a social and organisational context where understandings of family violence may not be based on common values, attitudes and understandings. The literature on personal protection order frameworks highlights the role that attitudes and understandings—underpinned

207 Angela Melville and Rosemary Hunter, ‘“As Everybody Knows”: Countering Myths of Gender Bias in Family Law’ (2001) 10 Griffith Law Review 124, 127–8.

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by personal values—can play in influencing whether they are implemented effectively and result in a positive experience for victims.208

5.8.1.1 Agency dilemma A significant issue in relation to family violence and abuse is the extent to which women should be permitted to exercise decision-making power as to whether applications for civil protection orders or criminal prosecutions for violence can proceed. This issue becomes particularly relevant where police are exercising their power to apply for civil protection orders and in jurisdictions where no-drop and pro-prosecution policies have been implemented. The question that arises in such contexts is what input the woman who has experienced the violence should have in relation to police and prosecutor decisions as to whether proceedings should be continued. A central theme in considerations of this issue is the need for processes that facilitate empowerment for targets of violence, because this is exactly what victims have been denied through the violence: the capacity to freely make their own life choices. ‘[B]ecause family violence involves the systematic disempowerment of people who experience it, legal processes must have the opposite effect.’209 Empowerment is jeopardised if victims’ lives continue to be controlled by the perpetrator and a further context in which this may happen is through actual or threatened abusive use of the legal system in relation to children. Conversely, there are significant debates in the pro-feminist literature on controlling violence about the extent to which laws and policies should defer to the autonomy and choice of victims.210 There are many strands to these debates, and there is a good deal of common ground underlying them, including the recognition that controlling violence is used as a way of disempowering victims, and that violence needs to be taken seriously as an offence not just against the victim, but also against the state. From this generally shared ground, however, very different positions can be reached. Those who place a high importance on women’s autonomy and choice argue that it is only by prioritising those values that women can be protected from further abuse by the legal system; women’s and children’s agency (or capability to make effective choices) must not be denied. Victims will make choices that best promote their own perceptions of their own and their children’s needs. If the system tries to second-guess these choices it disempowers victims and even endangers them. On the other hand, the notion that victims have free choice is fairly easily criticised, particularly where a victim is under continuing pressure from the perpetrator. It is argued that, by taking the choice away from a victim, the state in effect empowers her in relation to the perpetrator (by making it more difficult for the perpetrator to blame her for the decision), but also recognises the state’s important interest in having controlling violence dealt with seriously. So, for example, it has been argued that prosecutions of controlling violence should proceed even if the victim does not want them to, that police officers should apply for protection

208 For example, Laing 2010, above n 205. 209 Victorian Law Reform Commission, above n 61, [1.24], p 7. 210 For an overview of these debates see Elizabeth Schneider, Battered Women and Feminist Lawmaking, Yale University Press, New Haven, Connecticut, 2000, pp 74–86.

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orders even against the objection of the victim, and that victims should be compellable and compelled to give evidence in criminal trials based on controlling violence.211

5.8.1.2 Mutualisation as an example of unintended consequences An emerging concern is the phenomenon of orders being obtained by each party in a dispute. ‘Cross application’ describes circumstances where ‘an application for a protection order made by the respondent to the current application against the person seeking the original protection order’.212 The term ‘mutual orders’ is applied to situations where each party consents to the making of an order against them. As the ALRC notes, in some circumstances cross applications and mutual orders might be legitimate, but in others they may indicate that the protection order system is being manipulated or misused, potentially to perpetuate abuse and control of the victim.213 Cross applications may be brought in order to pressure the person seeking the original order to agree to withdraw the application or consent to mutual orders to escape the consequences of having a non-consent-based personal protection order taken out against them. These consequences may potentially be significant from a family law perspective, since courts are required to have regard to the circumstances in which any personal protection order was issued (FLA section 60CC(k)). The existence of mutual orders might therefore suggest that each party was equally responsible for the violence, in circumstances where this is not the case. Broader concerns about the implications of mutual orders and cross applications include that the violence of the main aggressor is being minimised and the system’s capacity to provide protection for the victim undermined. Further, submissions to the ALRC indicated that people who consent to mutual orders may not understand that they could subsequently be vulnerable to criminal prosecution arising from breaches of the order.214 There is limited empirical research on cross applications and mutual orders. Queensland researchers Heather Douglas and Robyn Fitzgerald examined personal protection order applications and determinations, including cross applications, from 2004–05 to 2010–11.215 From a relatively stable level of 12–13 per cent, the proportion of cross applications increased from 2007–08 and reached close to or in excess of 16 per cent each subsequent year. Douglas and Fitzgerald note that this increase coincided with the implementation of the 2006 family law amendments, which, as explained earlier, required courts to consider family violence protection orders made after contested proceedings (implying no such regard was to be had to orders made by consent). They observe that the increase ‘may also coincide with the emergence of typology like thinking that may have

211 For a discussion of this debate from a US perspective see ibid., pp 182–98, and the work of Susan Schechter, to which Schneider refers: Women and Male Violence: The Visions and Struggles of the Battered Women’s Movement, South End Press, Cambridge, Massachusetts, 1982; in Australia, see Graycar and Morgan, above n 193, pp 322–6, and the literature to which they refer there. For a more focused discussion of compellability and the tensions involved, see Community Law Reform Committee of the Australian Capital Territory, Domestic Violence, Discussion Paper No. 2, ALRC, Canberra, 1992. 212 Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 877. 213 ibid. 214 ibid., p 876. 215 Douglas and Fitzgerald, above n 199.

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begun to influence responses to DV’ (domestic violence).216 The inference arising from these observations is that the 2006 family law amendments had flow-through implications for personal protection order systems, with the Queensland data suggesting cross-order applications increased because of the potential implications of the existence of a personal protection order for family law proceedings. Jane Wangmann’s NSW-based research has a particular focus on cross applications.217 Her research was based on interviews with women involved in cross applications, professionals, including judges, lawyers, police and family violence workers, court observations and 78 cross-application court files. Wangmann found that matters involving cross-order applications were much more likely than sole-order applications to result in the withdrawal of the application (62.3 per cent vs 49.3 per cent).218 In the context of a systemic emphasis on settlement with processes conducted under significant time and resource pressures, Wangmann’s research shows that cross applications are ‘a bargaining tool’ used to counter or undermine the primary applicant’s case for protection.219 Although the professionals interviewed tended to place a more benign interpretation on the implications of settlement in these circumstances, emphasising efficiency, the women interviewed experienced this as an extension of the abuse they were seeking protection from. Noting that the processes for obtaining personal protection orders precluded narratives relating to power and control from being raised and examined, Wangmann also observed evidence of values among some professionals suggesting a construction of family violence as ‘mutual’. Wangmann suggested her findings had negative implications for the utility of approaches such as Michael Johnson’s, described earlier, because ‘differentiation may be seen as a way for the court to manage its excessive workload drawing on already dominant notions of mutuality, triviality and provocation, rather than a method to assist the court in developing appropriate responses to different forms of violence within intimate relationships’.220 Wangmann’s research adds to the body of work that examines the role that the attitudes of professionals play in effectuating policies and frameworks relating to family violence. As noted earlier, there has been longstanding recognition of the fact that legal and policy change will be undermined unless it is accompanied by cultural change in the values of attitudes of those professionals operating within the frameworks.

5.8.1.3 Civil protection orders and the criminal law A significant issue that arises in this area is the relationship between criminal law and the law governing civil protection orders. Civil protection orders are sought as a result of behaviour that often may constitute a criminal offence (past behaviour) to provide future protection against the repetition of such behaviour. The violence founding the concerns to which the civil protection order responds may warrant criminal prosecution, independent 216 ibid., p 80. 217 Jane Wangmann, ‘She Said …’ ‘He Said …’: Cross Applications in NSW Apprehended Domestic Violence Order Proceedings (March 2009), unpublished thesis, University of Sydney, Sydney eScholarship Repository, . 218 ibid., p 230. 219 ibid., p 269. 220 ibid., p 276.

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of the civil protection order proceedings. Historically, however, criminal prosecution as a result of incidents of family violence has been uncommon, although in recent years many jurisdictions have tried to redress this.221 An ongoing concern therefore has been whether or not civil protection orders may become a substitute for criminal processes. The ALRC family violence inquiry examined this question and received submissions suggesting conflicting views as to whether protection orders displace criminal law responses in practice.222 Several important points arise from submissions about this issue. First, several submissions raised the question of choice for those who experience family violence, recognising that they may need protection but may not want to see the perpetrator experience the consequences of criminal prosecution.223 The question of the agency of victim/survivors in this context is a significant one, with ongoing arguments on either side of the debate over time, consistent with our earlier discussion regarding agency (5.8.1.1). Some commentators argue that the victim/survivor’s view of whether criminal action should be taken should feed into prosecutorial decisions for a range of reasons, the most powerful among them being that removal of agency on this question compounds the disempowerment of the experience of family violence. On the other side of the debate, some commentators argue that choice displaces the responsibility of the state to administer justice, potentially re-privatising questions that have been de-privatised through the criminalisation of family violence. In submissions to the ALRC family violence inquiry, concerns were also expressed that choices made by victims/survivors may not be informed by the exercise of their own free will but might reflect pressure being brought to bear by perpetrators or others, including family members. Apart from the question of choice, submissions to the ALRC raised other important points about the interface between the civil protection orders and criminal justice responses. Some responses indicated that, for police, expedience may inform decisions to pursue intervention orders rather than, instead of as well as, laying criminal charges. Depending on the approach involved in the particular jurisdiction, it was suggested that intervention order proceedings were administratively and legally less cumbersome than laying criminal charges, though in one jurisdiction the opposite was said to be true. Concerns about whether cooperation from the victim would be sustained throughout a criminal process were also raised. In this context, particular concerns were raised about situations involving Aboriginal and Torres Strait Islander peoples with some submissions suggesting that stereotypical views among police officers about the unreliability of Aboriginal women underpinned some decisions not to pursue criminal action.224 On the basis of the evidence before it, the ALRC concluded that: in practice, the reasons police do not prosecute crimes committed in a family context seem to be inappropriate, and sometimes do not clearly relate to the safety or wishes

221 In 2008, Heather Douglas’ study of criminal proceedings where civil protection orders were breached indicated that the harm to women from family violence was minimised and trivialised: ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 20 Sydney Law Review 439. 222 Australian Law Reform Commission and NSW Law Reform Commission, above n 5, Chapters 8 and 11. 223 ibid., part 8.45 and following. 224 ibid., part 8.55.

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of victims. Not prosecuting because the task is difficult, or takes too much time, or because an officer thinks violence against a family member is less serious than other crimes are poor reasons not to prosecute a crime.225

5.8.2 The Victorian system The preceding discussion in this chapter has highlighted the dynamic nature of legislative responses to family violence, which continue to develop as policy keeps pace with developing research and practice understandings of family violence. In this section, we focus on one of the newer civil protection order frameworks, which came into effect in Victoria in 2008. The Victorian example provides a case study illustrating several of the key themes throughout this chapter. The implementation of the Family Violence Protection Act 2008 (Vic) (FVPA) came after a Victorian Law Reform Commission inquiry concluded that the preceding Victorian scheme—embodied in the Crimes (Family Violence) Act 1987 (Vic)—lacked a coherent underlying philosophy and required significant reform to improve its efficacy (VLRC).226 The 2008 legislation was part of a ‘whole of government’ approach aimed at developing a comprehensive response to family violence across different parts of governments and different agencies.227 Key elements of this strategy included a Code of Practice for the Investigation of Family Violence 2004 (updated in 2010) for police, specialist family violence officers and teams within Victoria Police, specialist family violence court divisions and lists, and a common risk assessment framework for services responding to family violence.228 An Indigenous Family Violence Taskforce was also established.229 Research examining the implementation of this approach demonstrates that an intensive amount of effort—in terms of resources and strategies to build commitment and understanding at agency and individual levels—was required to address the fragmentation of responses across different agencies and departments, as well as to establish a ‘common set of philosophical and bureaucratic values’.230 A core challenge was to generate a common understanding of what constitutes family violence in a context involving ‘a great deal of philosophical and organisational cultural variation in the way that family violence is understood, and the way that responses to it are framed in organisational cultures’.231 The impact of the new approach in Victoria has been significant. An 82 per cent increase in the number of personal protection orders made in the Magistrates’ Court has occurred between 2004–05 and 2011–12, accompanied by a 72.8 per cent increase in reported

225 ibid., part 8.63. 226 Victorian Law Reform Commission, above n 61, pp xxii–xxiii. 227 S Ross, M Frere, Lucy Healey, Cathy Humphreys, ‘A Whole of Government Strategy for Family Violence Reform’ (2011) 70 The Australian Journal of Public Administration 131. 228 SAFER Team and Sentencing Advisory Council, Department of Human Services, Family Violence Risk Assessment and Risk Management Framework and Practice Guides 1–3, 2nd edn, 2012. 229 Karen Crinall and Jenny Hurley, ‘Safe at Home Programs in the Context of the Victorian Integrated Family Violence Service System Reforms: A Review of the Literature’. 230 Ross et al., above n 227, p 139. 231 ibid., p 137.

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family violence incidents.232 This increase is not purely attributable to population growth, since the rate of personal protection orders issued per 100,000 persons in the Victorian population increased by 35.6 per cent between 2008–09 and 2011–12.233 Increasingly, police have become the main initiators of protection order applications, reversing a converse trend evident before the reforms: in 2004–05, 41 per cent of personal protection order applications were initiated by police, in contrast to 67 per cent in 2011–12.234 Increases in the number of criminal charges laid by police in response to family violence incidents have also occurred: in 2011–12, charges were laid in 34.7 per cent of cases where family violence incidents were reported to police, compared with 18.7 per cent in 2004–05.235 There has been an extraordinarily substantial rise in the number of minors protected under personal protection orders: an increase of 295.4 per cent between 2004–05 and 2011–12.236 Patterns in sentencing responses to personal protection order contravention offences have also shifted, ‘away from financial penalties to sentences with greater potential for some form of intervention in the lives of offenders’.237 On the basis of consultations undertaken to support the consideration of the data presented in the report, the Sentencing Advisory Council noted in 2013 that ‘stakeholders consistently remarked on cultural shift in the response to family violence among key criminal justice institutions, particularly the courts and police … there is now a deeper understanding of the nature of family violence on the part of magistrates and police …’.238 The reforms to the Victorian system, and the increased level of reporting family violence to police, have also stimulated public scrutiny of and debate about the extent to which the police and criminal justice systems are adequately resourced to deal with family violence. In April 2014, following a period in which three family violence murders had occurred in Victoria over a four-day period, The Age newspaper published an editorial questioning whether an adequate response to the ‘epidemic’ exposed by the changes could occur within existing resourcing parameters. The editorial asserted that ‘for as long as family violence continues unabated, it remains a stigma on our society. It must be fixed, whatever it takes, whatever it costs’.239 The wider policy and operational context surrounding the enactment of the FVPA underpins a number of its innovative features. Specifically, some of these features were designed to contribute to the development of common understandings mentioned earlier (5.3).240 For example, the Act includes a Preamble that sets out a number of normative ‘principles’ that embody the values the Parliament intended to uphold by enacting the legislation. These include recognition of ‘non-violence’ as a fundamental social value 232 Sentencing Advisory Council, Family Violence Intervention Orders and Safety Notices: Sentencing for Contravention, Monitoring Report, Sentencing Advisory Council, Melbourne 2013, p 11. 233 ibid., p 12. 234 ibid., p 16. 235 ibid., p 17. 236 ibid., p 19. 237 ibid., p 31. 238 ibid., p 14. 239 ‘Family Violence: A Concern beyond Price’, editorial, The Age, 24 April 2014. 240 Victorian Law Reform Commission, above n 61.

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(subsection (a)) and that family violence is a violation of human rights (subsection (b)). The  Preamble also recognises the adverse impact exposure to family violence has on children, the non-physical dimensions of family violence and that it ‘may involve overt or subtle exploitation of power imbalances’. Remedying a deficiency identified by the VLRC report in the preceding framework, namely the lack of a definition of family violence, the FVPA 2008 introduced a comprehensive definition that was influential in the development of the FLA definition introduced in 2012 and discussed earlier (5.7.1). The FVPA definition (section 5(1)) provides a core statement that: family violence is— (a)

behaviour by a person towards a family member of that person if that behaviour— (i) is physically or sexually abusive; or (ii) is emotionally or psychologically abusive; or (iii) is economically abusive; or (iv) is threatening; or (v) is coercive; or (vi) in any other way controls or dominates the family member and causes that ­family member to feel fear for the safety or well-being of that family member or another person; or (b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

The core definition, however, includes examples and, further, more detailed provisions explaining the types of behaviour included in the definition, which is more extensive than under the FLA. For example, further provisions explain the concepts of ‘economic abuse’ (section 6) and ‘emotional or psychological abuse’ (section 7), providing illustrative examples. Who comes within the term ‘family member’ is to be determined in two main ways. The first way revolves around past and present relationships, including past and present ‘domestic partners’, past and present partners in intimate relationships (including the partner’s child), past or present ‘relatives’ (implying the status of relative may have changed when the relationship ceased), and a child with whom the person seeking the personal protection order resides or resided with on a ‘normal or regular basis’ (section  8(1)). The second way involves establishing that the person seeking the personal protection order ‘reasonably’ regarded the other person as a family member, having regard to social and emotional ties between them, whether engagement between them occurs in ‘a home environment’, the way the individuals’ wider community regard the relationship, whether there is cultural recognition of the relationship as being like family, the duration of the relationship and the frequency of contact, financial arrangements, other forms of dependence and interdependence, care responsibilities (on a paid or unpaid basis) and the provision of sustenance and support. This definition responds to recommendations by the VLRC that the definition of family member be made inclusive enough to capture a range of relationships, reflecting kinship norms within Indigenous communities and some other culturally and linguistically diverse communities, relationships between peoples

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with disabilities and their carers and situations where protection is required from a person connected with a former partner (for example, a new partner, associate or child).241 Other key aspects of the FVPA include: • Family Violence Safety Notices: a police officer may apply to a more senior officer for a Family Violence Safety Notice outside of normal court hours where they believe on ‘reasonable grounds’ that such a notice is necessary to ensure the safety of the affected family member, preserve their property or to maintain the safety of a child (section 24). These notices are deemed to be applications for a personal protection order (section 31) and are effective until such time as a court considers the application (section 30) on first mention, required to be within 72 hours (section 31). • Interim family violence intervention orders: may be made where a court if satisfied on the balance of probabilities that an interim order is necessary to ensure the safety or protect the property of the affected family member or to protect a child (section 53). • Final orders: the court may make a final order if it satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or to do so again (section 74 (1)). Final orders may be made for multiple family members if section 74(2) is satisfied in relation to each of them. • Consent of the affected family member: is not necessary for a court to make final orders on application by the police. • Orders to protect children: the court may make orders to protect children in the family of the affected family member on its own initiative where it is satisfied on the balance of probabilities that the child has been ‘subjected to family violence’ committed by the respondent and this is likely to occur again (section 77). • Consent orders: where both parties consent, the court may make final orders, or vary, extend or revoke final orders. Lack of opposition from the respondent is also sufficient to ground the exercise of these powers. Consent orders may be made without admission—that is, an admission of the matters of fact in section 74. • Conditions that may be included in intervention orders: the court has a wide power to include ‘any conditions that appear to the court necessary or desirable in the circumstances’ (section 81). In addition to provisions preventing the respondent’s access to weapons, among the conditions that may be included are prohibitions on: – the respondent from committing family violence against the protected person: – prohibitions on the respondent from contacting the protected person – the respondent from being with a specified distance of the protected person, included in relation to specified places (e.g. where they live). – the respondent causing another person to engage in conduct prohibited by the order.

241 Victorian Law Reform Commission, above n 61, pp 109–12.

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• Exclusion conditions: intervention orders may include provisions excluding the respondent from the protected person’s residence (section 81(b)), provided that it ‘has regard to all circumstances of the case including’ (section 82) the desirability of minimising disruption to the protected person (subsection (2)(a)) and any child living with them, the desirability of continuity and stability in the care of any child living with the protected person (subsection (2)(b)). Exclusion orders may be made regardless of who owns or leases the relevant property (section 82(3)). • Intervention orders and family law orders: the following powers and obligations apply where there is an order under the FLA, which gives magistrates the power to vary, suspend, discharge or revive FLA orders (FLA section 68R): – where a court makes an intervention order in relation to a child, it must enquire as to whether there are any FLA orders in force in relation to the child (section 89); – if the inquiries made under section 89 lead the court to understand that the FLA orders and the family violence intervention order are inconsistent, the court must exercise its power under FLA section 68R to alter the FLA order to make it consistent; • Intervention orders and contact with children: where the respondent or the protected person are the parents of a child, the court must decide whether or not the safety of the protected person or the child would be jeopardised if the child lives, spends time or communicates with the respondent (section 91(2)). An absence of violence previously directed at the child is not sufficient reason for a court to conclude that a child’s safety will not be jeopardised if they live, spend time or communicate with the respondent (section 91(2)). Where a court concludes that living, spending time or communicating with the respondent will not jeopardise the child’s safety, then the intervention order must include conditions specifying that arrangements for the child to spend time, live with, or communicate with, the respondent, if agreed to by the protected person, must be in specified in writing and be consistent with the conditions of the intervention order (section 92). The intervention order must include a condition about how the arrangements for engagement between the child and the respondent are to be negotiated (section 92(1)(b)). Where a court concludes that engagement between the child and protected person would jeopardise the safety of the child, then the intervention order must include a prohibition on the respondent living, spending time or communicating with the child (section 94). • Duration: an intervention order lasts either for the period specified in the order or until it is revoked by the court of set aside on appeal (section 99). • Contraventions: of an intervention order attract a jail term of up to two years, a monetary penalty (up to 240 penalty units (a penalty unit is $1,100), or both (section 123). In summary, this section has examined civil protection order systems from an empirical, conceptual and practical perspective. The ABS evidence shows that family violence remains an underreported crime and that civil protection orders are taken out in about half the cases

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in which family violence is reported to police. Some women find the systems for obtaining civil protection orders difficult to use and encounter uneven responses to their needs in the different agencies they interact with in this context. There is continuing concern about civil protection orders systems operating as a substitute for criminal action. The Victorian experience offers some important insights. The discussion highlights the importance of establishing a coherent philosophy supported by a framework that encourages the development of a common understanding and a shared set of goals in generating cultural change to address family violence across different agencies. The Sentencing Council analysis highlights significant shifts in the extent to which family violence is reported to police and responded to by police and the justice system. However, the changes in Victoria have revealed to a greater extent than ever before the incidence of family violence and increased reporting has created concern about the level of resources needed to support an effective response.

5.9 Conclusion In comparison with the terrain described in this chapter in the first edition of this text, the discussion in this edition details significant shifts in key areas. These shifts are encouraging, suggesting a commitment on the part of federal, state and territory governments to address family violence, evidenced by the endorsement of the National Plan to Reduce Violence against Women and Their Children. Significantly, commitment to this plan has been maintained at federal level, despite a change in government in September 2013 from Labor to the Coalition. Sustained commitment over time is recognised as essential in bringing about change in areas where complex problems are entrenched and multiple systems intersect in addressing them. There is evidence that suggests recognition of the value of fragmentation across jurisdictions in promoting reform, but also of the need to address the fragmentation across systems, frameworks and agencies that create such significant challenges in meeting the needs of women and children affected by family violence. The empirical evidence presented in this chapter of the extent and impact of family violence among separated families and the extent to which children are affected underlines the  necessity for this continued commitment to reducing incidence and finding better ways to meet the needs of women and children affected by family violence across a range of levels, including federal and state justice systems. The impact of the 2012 family violence amendments at a federal level has yet to unfold, but concerns about the level of resources available in the system to respond to matters involving risk suggest significant challenges ahead. Some important messages emerge from the discussion of the changes implemented in Victoria and their impact on system responses. A crucial ingredient in the Victorian reforms has been the adoption of a coordinated approach across agencies, which has meant that cultural change has been supported across the elements of the system affected by the changes. Previous research has highlighted the inherent limitations of legislative change in the absence of cultural change.242 Significant aspects of the Victorian approach 242 For example, Hunter, above n 62.

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include the adoption of a statewide family violence screening tool, the development of a Family Violence Code of Practice for Police and the development of specialised responses in the court system. Through measures such as these, the responses that victims/survivors of family violence experience in dealing with different agencies are mutually supportive. Significant changes have also been implemented at federal level in the family law system, and the need for these changes has been amply evidenced in this chapter and the wide body of work upon which it draws. In addition to legislative change, measures aimed at supporting cultural change have also been adopted, including the AVERT Family Violence training package and the DOORS screening protocols. In the current environment, two of the ALRCs statements about the direction in which change should occur to produce a coherent response to the experiences of victims/survivors of family violence are worth reiterating. These statements refer to a need for: • ‘corresponding jurisdictions, so that those who experience family violence may obtain a reasonably full set of responses, at least on an interim basis, at whatever point in the system they enter, within the constraints of the division of power under the Australian Constitution’;243 and • ‘specialisation—bringing together, as far as possible, a wide set of jurisdictions to deal with most issues relating to family violence in one place, by specialised magistrates supported by a range of specialised legal and other services’.244 The challenges in realising these goals are significant but so too are the challenges faced by families affected by violence. As the discussion in at 3.7 indicates, innovations to overcome jurisdictional constraints have significant community benefits.

243 Australian Law Reform Commission and NSW Law Reform Commission, above n 5, p 54. 244 ibid.

CHAPTER

6

Introduction to Parenting Disputes 6.1 Introduction 176 6.2 Gender roles and parenting in separated and intact families: Empirical evidence  179 6.2.1 Gender roles and parenting  179 6.2.2 Post-separation parenting in Australian families  182 6.2.2.1 Methodological issues  183 6.2.2.2 Separated families generally  184 6.2.2.3 Time allocation in court orders  185 6.2.2.4 Parental responsibility: Social patterns and court orders  186 6.2.2.5 Influences on outcomes for children post-separation: Insights from the social science literature  187 6.3 Legal concepts relating to parenthood in Part VII: An historical overview  191 6.4 The contemporary Part VII framework  192 6.5 United Nations Convention on the Rights of the Child  196 6.6 Part VII: Current concerns  201 6.7 Conclusion 204

6.1 Introduction [F]amilies come in many shapes and sizes—they always have and they always will. Not only does the nature of families change over historical time, any person’s family changes over their life course … Families are embedded in the broader society. Inevitably, as social and economic structures change, so too will families.1 [T]he goal for the majority of families should be one of equality of care and responsibility along with substantially shared parenting time. They should start with an expectation of equal care. However, the committee does not support forcing this outcome in potentially inappropriate circumstances by legislating a presumption (rebuttable or not) that children will spend equal time with each parent.2 1 David de Vaus, Diversity and Change in Australian Families: Statistical Profiles, Australian Institute of Family Studies, Melbourne, 2004, p xv. 2 House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements on the Event of Family Separation (Every Picture Report ), 2003, part [2.35], available at at 28 April 2014. 176

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In this chapter we provide an overview of the law that governs decision making about the parenting of children under the Family Law Act 1975 (Cth) (FLA). Our discussion here addresses the broader parenting law, policy and research context relevant to our more detailed analysis of parenting disputes in Chapters 8 and 9. Disputes to be resolved under the FLA arise most often in the aftermath of parental separation, but they do not always involve parents who have lived together, and do not always involve one or both parents. They are to be distinguished from disputes about whether children should be the subject of state intervention because of concerns about their safety: we have touched briefly on that law in Chapter 3 exploring its interaction with what we might call the ‘private’ family law system in our case study at 3.7. This chapter also describes the social context in which the law operates by outlining contemporary evidence on gender roles, parenting patterns in intact families and parenting patterns in separated families. Since the introduction of the FLA four decades ago, four significant (and more less significant3) sets of amendments have been made to Part VII, the Division that sets out the law that applies to disputes about the care of children. The first set of amendments attempted to provide legislative guidance in relation to the interpretation of the paramountcy principle (then known as welfare, now known as best interests).4 Two further sets of amendments— made in 1996 and 2006—changed the way post-separation parenting is conceptualised in law, reflecting a policy intent on both occasions to provide stronger legislative support for shared parenting after separation. The fourth set of amendments—that became effective in 2012—left the substantial legal framework intact but aimed to increase the emphasis on family violence and child abuse as factors relevant to decision making (as discussed in Chapter 5). These changes reflect a series of shifts in the way that intact and separated families are conceptualised, which in turn respond to a combination of social, economic, and policy developments. Moloney and colleagues identify four of the main drivers of the changes that have led to the contemporary framework as women’s workforce participation; an increasing emphasis on the role of fathers as nurturers, not just as breadwinners; an increased awareness of family violence and child abuse and their impact; and an emphasis on the rights of the child that is gaining momentum.5 From a political perspective, further significant 3 An important change in this category was the explicit recognition of family violence as of relevance to parenting matters in 1991. 4 Family Law Amendment Act 1983 (Cth) s 29; for an overview of the development of post-separation parenting legislation in Australia and the United Kingdom see Belinda Fehlberg, Bruce Smyth and Liz Trinder, ‘Parenting Issues after Separation: Developments in Common Law Countries’ in John Eekelaar and Rob George (eds), Routledge Handbook of Family Law and Policy, Routledge, Oxford, 2014, part 3.3. Helen Rhoades has also described the background to the development of Part VII and the FLA more widely in ‘Children’s Needs and “Gender Wars”; The Paradox of Parenting Law Reform’ (2010) 24 Australian Journal of Family Law 160. See also Helen Rhoades, Charlotte Frew and Shurlee Swain, ‘Recognition of Violence in the Australian Law System: A Long Journey’ (2010) 24 Australian Journal of Family Law 296; Helen Rhoades, Grania Sheehan and John Dewar, ‘Developing a Consistent Message about Children’s Care Needs across the Family Law System’ (2013) 27 Australian Journal of Family Law 191; John Dewar, ‘Can the Centre Hold?’: Reflections on Two Decades of Family Law Reform in Australia, (2010) 24 Australian Journal of Family Law 139. 5 Lawrie Moloney, Ruth Weston and Alan Hayes, ‘Key Social Issues in the Development of Australian Family Law: Research and its Impact on Policy and Practice’ (2103) 19 Journal of Family Studies 110.

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influences have been the issues and arguments raised by groups concerned primarily with the interests of either men or women.6 The shifts referred to by Moloney and colleagues have been developing over decades, together with other areas of policy that impact upon the way families function, economically and affectively. These include policies in relation to labour market structure, the cost and availability of childcare, whether taxation structures favour families based on a dual or single earner model, the availability and extent of paid parental leave, the level and conditions of government support for sole parent families and the way child support obligations are configured. All of these policy areas potentially have an influence on the way that families balance work and care,7 which in turn influences the way that financial and emotional ties develop between adults and between parents and children in intact families and may be strained, sustained or dissolved if separation occurs. Further significant forces play out at a social and individual level and include the influences that affect the way adults function (including family violence, mental ill-health and substance abuse) and the values they espouse, including the extent to which religious and ethical values shape the way that relationship obligations are viewed. An important conceptual issue to be acknowledged at the outset of this discussion is that parenthood is a complex construction with many different, but interlinked, aspects. As the discussion in Chapter 4 acknowledges, in law it mostly but not inevitably arises through biology. It also has significant affective dimensions arising from the way day-to-day caregiving responsibilities are carried out and, less concretely, from the way values and beliefs about raising children and family obligations are enacted in private life. Parenthood also involves significant economic responsibilities and responsibility for making decisions about children. In intact families, these aspects of parenthood may (or may not) be fulfilled seamlessly and with little thought or negotiation as part of the fabric of everyday life. In the context of separation, these issues are more likely to become the subject of active thought, discussion and negotiation because of the necessity to work through the short- and longterm practicalities that arise in each of these areas. While parenthood is an organic concept, the mechanisms for working through how it is fulfilled after separation are spread across different legal frameworks and agencies. Financial support obligations are determined by the Child Support Scheme (CSS) (Chapter 11). Other financial issues—such as the way the property of the relationship is divided and ongoing care obligations that are reflected in this division—are dealt with under the FLA (Chapters 10 and 12–15). Parenting issues are dealt with in Part VII of the FLA and, as noted earlier, are introduced in this chapter and examined further in Chapters 7, 8 and 9. Because this chapter is intended to provide the basis for understanding the operation and application of Part VII, the way it discusses parenthood is shaped to a significant extent by the legal concepts that underpin parenthood as it is configured in Part VII, reflected in a focus on time (that is, the way the child’s time is allocated across parental (or possibly nonparental) households), and parental responsibility. Also significant to this discussion is the 6 See, e.g., Rhoades, above n 4; Michael Flood, ‘Separated Fathers and the “Fathers’ Rights” Movement’ (2012) 18  Journal of Family Studies 235. 7 Lyn Craig, Killian Mullan, Megan Blaxland, ‘Parenthood, Policy and Work–Family Time in Australia 1992–2006’ (2010) 24 Work, Employment and Society 27.

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range of dynamics, including family violence to varying extents, relevant across separated families set out in Chapter 5 and the ways in which the legal framework permits these to be acknowledged and considered in making parenting arrangements. The first section of this chapter sets out the social context for the application of the FLA through a discussion of contemporary gender roles, how parenting is carried out in intact families and the evidence regarding parenting patterns after separation. The second section provides a brief overview of the history of changes in the way parenting has been conceptualised in Part VII. The third section describes the current decision-making framework. The fourth section introduces some key elements of the United Nations Convention on the Rights of the Child. A discussion of key concerns about the current decision making framework occupies section five. As already highlighted in Chapter 5, a  significant feature of the empirical landscape is the extent to which family violence—at varying levels of intensity—is evident among the separated population: this has significant implications for the application of the Part VII framework.

6.2 Gender roles and parenting in separated and intact families: Empirical evidence 6.2.1 Gender roles and parenting In light of the significance placed on gender roles in relation to work and family responsibilities in debates about family law policy, this section outlines some key features of the evidence about these issues in relation to intact and separated families. The discussion begins with a consideration of some broad indicators in relation to gendered work and parenting patterns, with an underlying recognition that these broad indicators overlay significant diversity, based on a range of issues including socio-economic status, gender and ethnicity, in these areas. In the past four decades, significant shifts have occurred in the way that gender roles in families are configured. Until as recently as the early 1970s, workforce participation levels among women were low and gender roles in families were generally relatively rigidly structured into ‘breadwinner’ (employed men) and ‘homemaker’ (women engaged in family work—that is, running the home and raising children).8 The past three decades have seen women’s participation in the workforce increase significantly, although for many women employment patterns differ substantially from those of men: women remain clustered in lower-paid positions and are more likely to work on a part-time or casual basis for longer periods than men, particularly when they have children.9 Figures from the Organisation for Economic Co-operation and Development (OECD) show that 67 per cent of women 8 See, e.g., Alan Hayes, Ruth Weston, Lixia Qu and Matthew Gray, Families Then and Now: 1980–2010, Australian Institute of Family Studies, Melbourne, 2010. 9 See, e.g, Hayes et al., ibid., Mary Leahy, Women and Work in Australia: Topic Guide, Australian Policy Online, 28  November 2011, .

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aged between 15 and 65 are employed, compared to 78 per cent of men, and reveal a gender wage gap of 14 per cent.10 Concomitant with a rise in workforce participation among women, incremental changes have occurred in the way domestic responsibilities are carried out: men have assumed some responsibility for domestic tasks and child rearing, but women essentially retain most responsibility in these areas. Some work–family theorists refer to this as the ‘second-shift’,11 meaning that women are engaged in financially rewarded employment in a workplace and non-financially rewarded family work. The most recent available research based on time-use data demonstrates just how incremental shifts in responsibility for family work have been.12 Lyn Craig and colleagues show that between 1992 and 2006 ‘the division of labour between mothers and fathers is more extreme than it is between non-mothers and non-fathers and became even more so over time’.13 Taking into account paid work, domestic work and childcare, the analysis found that, on average, the weekly workload of women with children rose from 80.1 hours to 85.9 hours between 1992 and 2006. The weekly workload of men with children also rose, from 70.5 to 79.5 hours a week. The increase in mothers’ workload was accounted for by more hours in paid employment (3.7 hours) and childcare (2.1 hours). Time spent in domestic labour was relatively consistent. For men, the increase in hours spent working was accounted for by 6.6 hours in paid work and 3.7  hours in childcare. Their hours spent in domestic work fell by 1.3 hours. In 1992, men spent 15.5 hours a week on childcare compared to 19 hours in 2006. Childcare hours for mothers also increased over this period, from 44.1 to 45.7 hours a week. In broad terms, these findings show that while involvement in childcare by men has increased, this increase has not occurred at the expense of women’s involvement with childcare and the relative amounts of time spent by fathers and mothers caring for children remain unequal. While these aggregate level data provide means of understanding broad social patterns, it is also critical to appreciate that patterns in employment and engagement in ‘family work’ differ significantly within the general population. Employment patterns for mothers are just one example of the way parenting patterns influence and are influenced by broader issues. Employment rates for mothers are strongly linked to the age of their children: in 2009, just over 50 per cent of partnered mothers with children in 0–4 year age group were employed, compared with nearly 80 per cent of mothers with children in 10–14 year age group.14 Most women with children work part-time, with 2009 ABS data showing that 28   per cent of mothers with children in paid employment worked full-time, compared with 35 per cent working part-time.15 Similarly, analyses of the amount of time fathers spend with children based on data from the Longitudinal Study of Australian Children (LSAC) shows that the time both 10 OECD, Better Life Index, available at , 8 May 2014; for wage gap, see OECD, ‘Country Snapshot: Australia’, How’s Life? 2013 Measuring Wellbeing, , November 2013. 11 For example, Lyn Craig, ‘Is There Really a Second Shift and if So, Who Does It? A Time-Diary Investigation’ (2007) 86 Feminist Review 149. 12 Craig et al., above n 7. 13 ibid., 10, the parents’ group had a youngest child 0–4 years old. 14 Hayes et al., above n 8, p 6. 15 ibid., p 5.

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mothers and fathers spend with children varies according to a range of factors including the age of child and the employment status of the parents.16 Analysis by Jennifer Baxter and Diana Smart indicates that the time mothers and fathers spend directly engaged with childcare tasks diminishes as children grow older, but that mothers are consistently involved with daily care routines to a greater extent than fathers across all age groups represented in LSAC. Focusing on one aspect of care for children—getting ready for bed— for example, 79.2 per cent of LSAC mothers of 2–3-year-olds reported daily involvement compared to 62.2 per cent for 6–7-year-olds. Father reports of involvement in this activity for these age groups varied significantly. In relation to 2–3-year-olds, most fathers (56 per cent) reported being involved a ‘few times a week’ with 27.6 per cent reporting daily engagement. In relation to 6–7-year-olds, 28.2 per cent of fathers reported daily engagement and 51 per cent reported engaging with this activity ‘a few times a week’. In addition to showing differences according to gender, these patterns also illustrate the extent to which variations among families occur. Consistent with other research on fathering and families,17 Baxter and Smart observe that the amount of time fathers spend with children is not the main factor associated with overall relationship quality and child well-being. Other relevant factors include the quality of the relationship between the parents, the extent to which the father maintains work– life balance and the nature of the parenting practices and styles exercised by fathers. This latter dimension of parenting has been shown in this and other research to be particularly significant.18 The measures of parenting style applied in LSAC include the extent to which the following issues are reported by parents in their interactions with children: warmth, hostility, anger, inductive reasoning, consistency and over-protection. Baxter and Smart found that ‘over all aspects of parenting, fathers differed significantly from mothers, exhibiting, on average, less warmth, less inductive reasoning, less consistency and less overprotection’. They further note that ‘greater warmth in parenting styles on the part of mothers and fathers was associated with more positive learning and socio-emotional outcomes’. From an empirical perspective then, the pertinent observations to draw from this discussion about gender roles, work and family and parenting is that the evidence shows that the contributions that men and women make in these areas remain gendered, despite significant shifts in workforce participation for women and incremental increases in active involvement in fathering (in the sense of engaging in caring activities) on the part of men. It is also important to note, however, that significant variations are evident in the ways that 16 J Baxter and D Smart, ‘Fathering in Australia among Couple Families with Young Children: Research Highlights’ (2011) 88 Family Matters 15, Table 2, 17. This article is a summary of Jennifer Baxter and Diana Smart, Fathering in Australia among Couple Families with Young Children, Occasional Paper No. 37, FaHCSIA, Canberra, 2010, , 8 May 2014. See also Killian Mullan and Daryl Higgins, A Safe and Supportive Family Environment for Children: Key Components and Links to Child Outcomes, Occasional Paper No. 52, Australian Government, Department of Social Services, Commonwealth of Australia, Canberra, 2014, 4 August 2014. 17 Paul Amato and J Gilbreth, ‘Non-Resident Fathers and Children’s Well-Being: A Meta-Analysis’ (1999) 61 Journal of Marriage and the Family 557; Jennifer Renda, ‘Is It Just a Matter of Time? How Relationships between Children and Their Separated Parents Differ by Care-Time Arrangements’ in Australian Institute of Family Studies, The Longitudinal Study of Australian Children: Annual Statistical Report 2012, Commonwealth of Australia, Canberra, 2012. 18 Baxter and Smart, 2010, above n 16, pp viii–xii.

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different families carry out work and family responsibilities, and the evidence of this in the research reinforces the wisdom in avoiding generalisation.

6.2.2 Post-separation parenting in Australian families In the past five years, the evidence base on parenting patterns among separated families has grown exponentially and we now have a significant amount of quantitative research on the arrangements made to care for children after separation. Like earlier research by Bruce Smyth and colleagues,19 recent evidence establishes considerable variation in the ways that children’s time is divided between households,20 although it is also clear that arrangements involving most nights being spent with the mother remain most common. The discussion in this section will outline the empirical evidence on parenting arrangements evident among different groups of separated parents. The first part of the discussion focuses on the evidence from two studies of recently separated parents, which have already been referred to in Chapter 5—the Australian Institute of Family Studies Survey of Recently Separated Parents (AIFS SRSP) 2012 and the AIFS Longitudinal Study of Separated Families (LSSF) Wave 1.21 Importantly, each of these studies describes the patterns evident among newly separated parents whose experiences reflect the post-2006 legal and policy environment and whose children are generally concentrated in the younger age groups.22 The separations of AIFS LSSF parents occurred between July 2006 and September 200823 and those of AIFS SRSP parents between July 2010 and December 2011. The main focus of this discussion is the way children’s time is allocated between parents. The second part of the discussion outlines the findings of research based on Australian Bureau of Statistics Family Characteristics Survey data,24 which is representative of the general population of separated parents, rather than those who are newly separated. The definitions used in this discussion are those applied in the source studies: the definitions in AIFS SRSP and AIFS LSSF cover 11 different time arrangements. These are based on the DHS-CSP classifications applied in determining child support liability. They focus on the number 19 Bruce Smyth (ed.), Parent–Child Contact and Post-Separation Parenting Arrangements, Australian Institute of Family Studies, Melbourne, 2004. 20 In addition to Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009, other recent Australian research that demonstrates this includes Judy Cashmore, Patrick Parkinson, Ruth Weston, Roger Patulny, Gerry Redmond, Lixia Qu, Jennifer Baxter, Marianne Rajkovic, Tomasz Sitek and Ilan Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the Australian Government, Attorney-General’s Department, Social Policy Research Centre, University of New South Wales, Sydney, 2010; Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells and Caroline Long, PostSeparation Parenting Arrangements and Developmental Outcomes for Children: Collected Reports, Family Transitions, Melbourne, 2010. 21 Wave 1 findings are used in this discussion because they are most comparable with SRSP findings, based on the recency of separation for each sample. 22 Kaspiew et al., above n 20, Chapter 2; John De Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Measures) Act 2011, Australian Institute of Family Studies, Melbourne, 2013, pp 11–12. 23 Kaspiew et al., above n 20, pp 20–1. 24 Australian Institute of Family Studies, Family Facts and Figures: Parent–Child Contact after Separation, available at 9 May 2014.

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of nights allocated to each parent. The third part of the discussion outlines what patterns in the allocation of parenting time are evident in court orders and through arrangements made in other parts of the system. The final section focuses on parental responsibility as it is exercised by parents and allocated in court orders. The discussion in this section is primarily concerned with providing an overview of the time arrangements applicable to children in separated families and the way parental responsibility is exercised.

6.2.2.1 Methodological issues Before outlining the findings of AIFS SRSP and AIFS LSSF, some methodological issues need to be acknowledged. Although the methodologies for these studies are substantively the same, a subtle difference in the way the sample for each study was drawn has resulted in slightly different sample profiles: the SRSP sample did not include parents who had never lived together, while the LSSF sample included nine per cent of such parents.25 This subgroup on average tended to have younger children, resulting in a slightly lower age profile of LSSF children compared with SRSP children. This factor may well account for some of the differences in key areas, including parenting arrangements, observed between these two studies. A further issue concerns the way that, in a variety of areas, the reports of mothers and fathers differ.26 This is a phenomenon widely observable across a range of studies.27 In  some areas, particularly those involving subjective issues such questions about their own well-being and that of their children, differences may be expected because views on these questions are inherently subjective. Evidence of subjectivity does not stop there, however. In  relation to issues that are more factual—such as the allocation of children’s time between parents, the exercise of parental responsibility (which is less tangible than time and therefore more subjective) and the payment of child support—differences between mothers’ and fathers’ reports are also evident to varying extents. The discussion of SRSP and LSSF in this book maintains a significant level of generality because it is concerned with describing the social and legal context in which family law operates and, for this reason, these differences are noted at this point, and may be highlighted where they are of substantive interest in the discussion. Otherwise, the discussion is based on data that reflect a mean based on mothers’ and fathers’ reports. In both studies, the most common parenting arrangement was for children to live with their mother for between 66 and 86 per cent of the time and to spend between 14  and  34 per cent of their time with their father (SRSP 40 per cent and LSSF 25 See footnote in De Maio et al., above n 22, pp 11–12. 26 See, e.g., Kaspiew et al., 2009 above n 20, pp 123, 177, 259; De Maio et al., 2013, above n 22, pp 18, 104. Lixia Qu and Ruth Weston, Parenting Dynamics after Separation: A Follow-Up Study of Parents Who Separated After the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2010, 5.3. 27 See, e.g., discussion in Irwin Sandler, Sharlene Wolchik, Emily Winslow, Nicole Maherer, John Moran and David Weinstock, ‘Quality of Maternal and Paternal Parenting Following Separation and Divorce’ in Kathryn Kuehnle and Leslie M Drozd, Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press: New York, 2012, pp 86–100; Patrick Parkinson and Bruce Smyth, ‘When the Difference Is Night and Day: Some Empirical Insights into Patterns of Parent–Child Contact after Separation’, paper presented at the 8th Australian Institute of Family Studies Conference, Melbourne 2003, , 9 May 2014.

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Wave 1  31  per cent).28 In each sample, around a fifth of children were spread across three different arrangements approximating shared care time. The nearest arrangement to 50–50 shared care, a 48–52  per  cent split, was applicable to 9.2 per cent of children in the AIFS SRSP sample and seven per cent of children in the AIFS LSSF sample. The next most common shared care arrangement—where 53–65 per cent of time was spent with the mother and 35–47  per  cent with the father—was evident for 10.7 per cent of the AIFS SRSP sample and 7.8 per cent of the AIFS LSSF sample. Much smaller groups of children were in a shared care arrangements involving spending a greater proportion of their time with fathers (35–47 per cent with mother and 53–65 per cent with father), with 2.2 per cent of AIFS SRSP and 1.3 per cent of AIFS LSSF children in these arrangements. Very small proportions of children were in arrangements involving minimal or no time with mothers in both studies.29 In contrast, 6.9  per cent of AIFS SRSP children and 11.1 per cent of AIFS LSSF children never saw their fathers and a further 13.1 per cent of AIFS SRSP and 22.5 per cent of AIFS LSSF children had day-time only contact with their fathers. Time arrangements are also significantly associated with children’s age: the largest groups of shared care (35–65 per cent of nights with each parent) children were in the 5–11 year age group, with just over a quarter of these children in such arrangements in both samples.30 Children in the younger and older age groups were least likely to have shared care arrangements.31 Consistent with previous research32 suggesting that a self-selecting group of highfunctioning parents opt for shared care arrangements, the following characteristics were evident among most AIFS LSSF shared care parents: higher socio-economic status, children of primary school age, close proximity (within 10 km) to the other parent’s home. Parents with shared care were more likely than parents with a minority or no care nights to report higher levels involvement with their children’s care prior to separation. They were also more likely to report having used a service—such as counselling, mediation or family dispute resolution (FDR), a lawyer or court—to sort out their parenting arrangements.33 However, AIFS LSSF findings also indicated difficult relationship dynamics between some shared care parents, suggesting ‘a substantial minority may experience frequent episodes of high inter-parental conflict or an atmosphere generating fear in one parent’.34 The emergence of shared care arrangements involving parents with difficult relationships dynamics has been described in other reports.35

6.2.2.2 Separated families generally We turn now to a discussion of ABS data as analysed by AIFS, in order to consider the arrangements evident for children in separated families in a sample that reflects all separated parents rather than particular time-based cohorts of separated families, as the AIFS LSSF 28 29 30 31 32 33 34 35

De Maio et al., above n 22 Figure 2.2; Kaspiew et al., above n 20, Table 6.1. Kaspiew et al., 2009, Table 6.1; De Maio et al., Table 3.2. De Maio et al., above n 20, Figure 2.2 and Table A2.1 p 128; Kaspiew et al., above n 20, Table 6.1 and Figure 6.5. Kaspiew et al., 2009, above n 20, Table 6.1; De Maio et al., above n 22, Table A2.1. Bruce Smyth, Catherine Caruana and Anna Ferro, ‘Fifty–Fifty Care’ in Smyth 2004, above n 19. Kaspiew et al., above n 20, pp 168–9. ibid., pp 162–3. Cashmore et al., (2010), above n 20, McIntosh et al., (2010) above n 20.

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and AIFS SRSP do. These data also confirm that arrangements for children to spend most time with their mothers are the most common. The AIFS Family Facts and Figures: Parent–Child Contact after Separation36 publication is based on the ABS Family Characteristics Survey 2009–2010. This survey is representative of all separated families but it should be noted that data on contact arrangements and overnight stays are based on the reports of resident parents. The way that the number of nights is measured in the ABS survey differs from the method applied in the AIFS LSSF and AIFS SRSP studies. The ABS surveys uses the following categories in relation to arrangements for the child to spend nights with the non-resident parent annually: nil nights, 1–9 per cent of nights, 10–19 per cent of nights, 20–29 per cent of nights, 30–49  per cent and 50 per cent plus nights. The most common arrangement reported by resident parents was that which involved no overnight stays: 49 per cent of the children were reported to be in this kind of arrangement. This does not equate, however, to arrangements where no face-to-face contact occurred at all, as this was only applicable to 26 per cent of children in the sample. The next most common arrangements involving overnight stays were those involving 1–9 per cent of nights (20 per cent) and 10–19 per cent of nights (16.5 per cent). Only three per cent of the children in the sample reportedly stayed with the other parent for 50 per cent or more of nights, and small proportions were in the other time brackets involving larger proportions of nights: seven per cent had 20–29 per cent of nights and four per cent had 30–49 per cent of nights.

6.2.2.3 Time allocation in court orders The final point to be covered in our discussion about time arrangements is the patterns evident in court orders and arrangements made through engagement with formal services.37 Evidence from the AIFS Evaluation of the 2006 amendments shows that the proportion of orders for shared care (involving a 35–65 per cent division of nights between parents) made by courts as a result of adjudication, while remaining small overall, increased substantially after the reforms. Using a lower bound estimate (reflecting cases resolved by judicial determination where contact hours were specified in the order in the context of all cases in the sample, even where contact hours were not specified),38 the findings by Kaspiew and colleagues show that, after the reforms, cases where shared care time was ordered increased from two per cent to 13 per cent.39 In the sample of cases resolved by consent, again using the more conservative estimate, the proportion of orders involving shared care rose from 36 Australian Institute of Family Studies, Family Facts and Figures: Parent–Child Contact after Separation, available at 9 May 2014. 37 Data for the latter aspect of the discussion are drawn from Kaspiew et al., above n 20. 38 See Kaspiew et al., 2009, above n 20, parts 6.3 and 6.5.3. 39 ibid., Table 6.8. One study referring to data generated by the Family Court of Australia (FCoA) (which hears a small minority of parenting cases—see Chapter 2) suggests a reduction in the number of shared time orders after 2009: Bruce Smyth, Richard Chisholm, Bryan Rodgers, Vu Son, ‘Legislating for Shared-Time Parenting after Parental Separation: Insights from Australia?’ (2014) 77 Law and Contemporary Problems forthcoming. See further Chapter 8.

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10 per cent to 15 per cent,40 a much less dramatic increase than that reflected in the judicial determination sample (see also 9.2).

6.2.2.4 Parental responsibility: Social patterns and court orders Thus far, the discussion in this section has focused on time arrangements. This section focuses on another domain of parenting—the exercise of parental responsibility. As explained in more depth in the next section, parental responsibility is a core aspect of the legal framework, reflected in the presumption of equal shared parental responsibility. This section first outlines how parents described the exercise of responsibility, based on the AIFS SRSP sample. The patterns of parental responsibility allocated in court orders are then described. The AIFS LSSF and AIFS SRSP studies each asked parents to report on how decision making occurred (mainly mother, mainly father, both parents equally) in four different areas of a child’s life: education, health care, religion or cultural ties and sporting or social activities. In keeping with the dynamic and varied nature of parenthood highlighted throughout this discussion, according to the detailed analysis presented in these reports, parental accounts varied between mothers and fathers41 and according to the age of the child,42 care-time arrangements,43 the involvement of fathers in the child’s life prior to separation44 and the presence or absence of a history of family violence.45 Overall, in each of the areas examined, statistics derived from the (often discrepant) accounts of mothers and fathers in Kaspiew and colleagues’ 2009 study indicate decisions are most often reported to be made by mothers, particularly in relation to sporting and social activities (60 per cent reporting mainly mother) and health care (65 per cent reporting mainly mother).46 ‘Equal’ decision making was reported across these domains by an average of between a quarter and just over a third of parents. Reports of equal decision making were most frequent in relation to education (37.8 per cent) and religion and or cultural ties (37.8 per cent). More equal decision-making patterns were more likely to be reported by parents with shared care arrangements47 and where there was no history of physical hurt or emotional abuse,48 but the differences in the latter area were not large. Shared decision making was most likely to be reported where parents also reported significant involvement of fathers in the children’s lives prior to separation.49 In contrast to the varied and contingent nature of decision making suggested by parents’ reports, the patterns evident in court based orders are much more likely to reflect a legal expectation that parents will make decisions together. The evidence presented in 40 41 42 43 44 45 46 47 48 49

ibid., Table 6.9. De Maio et al., above n 22, Table 2.5; Kaspiew et al., above n 20, Table 8.1. De Maio et al., above n 22, Table 2.6. Kaspiew et al., above n 20, part 8.1.1. ibid., part 8.1.2 ibid., part 8.1.3. ibid., Table 8.1. ibid., p 178. ibid., p 182. ibid., p 181.

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Kaspiew and colleagues’ 2009 study shows that court orders (whether made by consent or judicial determination) for shared parental responsibility were more likely to be made after the 2006 amendments family law reforms than before (86.5 per cent cf. 76.3 per cent), although in each time period these kinds of orders (rather than sole responsibility to either parent) were the majority.50 In the judicial determination sample, the proportion of shared parental responsibility orders rose by 12 percentage points between the two time frames (44 per cent and 56 per cent), with the proportion of orders made by consent having this outcome increasing by 11 percentage points (80 per cent and 91 per cent).51 Notably, shared parental responsibility was the most likely outcome even in cases where allegations concerning family violence and child safety had been raised, with around three-quarters of such cases involving these outcomes, compared with 90 per cent where no such allegation had been raised.52

6.2.2.5 Influences on outcomes for children post-separation: Insights from the social science literature Our discussion now turns from a focus on patterns in parenting before and after separation, including the patterns reflected in court orders, to a brief consideration of the evidence on child well-being. By way of introduction, it is necessary to acknowledge the complexity of the empirical canvas that is the basis of this discussion. There is an extensive body of international and to a more limited extent, Australian, research on the impact of separation on relationships in families and the adjustment of parents and children to the transitions that separation entails, together with evidence on outcomes for children whose parents separate. This body of research reinforces the salience of the point made in 6.2.1 about the differences in the ways families function generally in relation to separated families: a large variety of factors have been shown to influence post-separation trajectories and outcomes for parents and children, including socio-economic status, inter-parental relationships, the nature of the relationship between parents and children, the age of the children at separation, parenting efficacy, the stability of household in which the child lives, re-partnering, sibling relationships, the way the family functioned before separation and the exposure of the family to other stressful events and transitions.53 The variability of post-separation family life and the sheer number of factors that may or may not be linked to parent and child outcomes makes this an area of research that characterised by significant methodological challenges. This complexity defeats generalisation. In considering the existing knowledge base on what may or may not contribute to positive outcomes for children, it is important to appreciate that a variety of theoretical approaches may be adopted, such as family systems theory, child development theory and 50 51 52 53

ibid., Table 8.2. ibid., Table 8.3. ibid., Table 8.7. See, e.g., Paul Amato, Jennifer Kane and Spencer James, ‘Reconsidering the “Good Divorce”’ (2011) 60 Family Relations, 511–24; Amato and Gilbreth, above n 17; Jan Pryor and Bryan Rodgers, Children in Changing Families: Life after Parental Separation, Blackwell, Oxford, 2001.

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attachment theory. In some of these areas, the underlying theoretical basis of the research, and the evidence on which the theory is based, may be contentious.54 Depending on the theoretical approach adopted, and the focus of the study, different measures may be used to assess outcomes: these may include measures designed to assess social, emotional and educational functioning, for example, or longer term outcomes, such as educational attainment, workforce engagement and involvement in antisocial and criminal behaviour. Many studies use measures that are based on parents’ reports of child functioning, and recent evidence reinforces the point that parents’ perceptions are inherently subjective as noted earlier: this is clearly illustrated in the recent AIFS studies55 and other research56 in which parents’ reports on the workability of parenting arrangements and child well-being were influenced by the parents’ own level of satisfaction with the parenting arrangements. There is limited research that taps the views of children and young people on various types of parenting arrangements, particularly of a nature that would facilitate understanding of the lived experience of these kinds of arrangements.57 Research in the post-separation field can be very contentious and this is at times manifested in debates about the validity of different research methods and the implications of this for the robustness of findings and the aptness of interpretations based on such findings.58 These debates underline the fact that evidence in this area is ever-developing and that method and message are intimately linked and mutually limiting. For the reasons just outlined, there is considerable variation in the empirical evidence base about the impact of separation and the factors that support healthy development in children post-separation. There are few areas where the research findings are clear and 54 The theory of attachment and its implications for overnight stays for young children is one such area. Debate is longstanding: see, e.g., Gwynneth Smith, Brianna Coffina, Patricia Van Horn and Alicia Lieberman, ‘Attachment and Child Custody’ in Kathryn Kuehnle and Leslie M Drozd, Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press, New York, 2012. And more recently Richard Warshak, ‘Social Science and Parenting Plans for Young Children: A Consensus Report’ (2014) 20 Psychology, Public Policy and Law 4667; Jennifer McIntosh, Marsha Kline Pruett, and Joan Kelly. ‘Parental Separation and Overnight Care of Young Children, Part II: Putting Theory into Practice’ (2014) 52 Family Court Review 240. 55 Kaspiew et al., 2009, above n 20, e.g., pp 156–59, p 259; Qu and Weston, above n 26, p 84. 56 For example, Cashmore et al., 4.6, 4.7, 6.7; McIntosh et al., 2010, above n 20, pp 49, 74. 57 The main Australian studies examine this quantitatively: Jodie Lodge and Michael Alexander, Views of Adolescents in Separated Families: A Study of Adolescents’ Experiences after the 2006 Reforms to the Family Law System, Australian Institute of Family Studies, Melbourne, 2011. Cashmore et al., McIntosh et al., 2010, above n 20. See also Jennifer Renda, ‘Is It Just a Matter of Time? How Relationships between Children and Their Separated Parents Differ by Care-Time Arrangements’ in Australian Institute of Family Studies, The Longitudinal Study of Australian Children: Annual Statistical Report 2012, Commonwealth of Australia, Canberra, 2012. Children’s experiences have been examined qualitatively by Campo and colleagues in a study that involved interviews with 22 children including 12 who were in shared time arrangements: Monica Campo, Belinda Fehlberg, Christine Millward and Rachel Carson, ‘Shared Parenting Time in Australia: Exploring Children’s Views’ (2012) 34 Journal of Social Welfare and Family Law 295. 58 Recent examples of such debates include the debates on attachment, above n 54. In a narrower context, that of judicial decision making, the use of social science evidence has also been contentious for many years. Most recently, the Full Court has emphasised the need for the use of such evidence to be supported by procedural fairness: McGregor & McGregor [2012] FamCAFC 69. See also Zoe Rathus, ‘A Call for Clarity in the Use of Social Science Evidence in Family Law Decision-Making’ (2012) 27 Australian Journal of Family Law 81. McGregor concerns the use of social science material of alienation. This is a controversial topic: see, e.g., Tom Altobelli, ‘When a Child Rejects a Parent: Why Children Resist Contact’ (2011) 25 Australian Journal of Family Law 185; Rae Kaspiew, ‘Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation’ (2007) 29 Sydney Law Review 131.

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relatively uncontested. For the purpose of this discussion, there are five important points that emerge from the research. First, as discussed in 5.6, children are negatively affected by exposure to family violence and/or negative inter-parental relationship dynamics (referred to in some literature as ‘high conflict’ separation).59 Second, there is a spectrum in the ways that parenting responsibilities are discharged after separation and the ways in which parents relate to each other and their children.60 A range of typologies have attempted to capture these different ways of relating, focusing on the extent to which particular characteristics are present, including the ability to cooperate, the presence of conflict and the ways parents (particularly fathers) maintain engagement or disengage from their co-parental relationships and their relationships with their children.61 Third, when children maintain regular contact with both parents and this contact sustains positive relationships, child outcomes are generally positive.62 Fourth, parenting efficacy is salient to positive outcomes for children.63 This means the exercise of parenting activities in ways that support healthy emotional, physical and intellectual development for children. As mentioned earlier (6.2.1), key characteristics include warmth, consistency and an authoritative (characterised by supportiveness and consistent discipline) rather than authoritarian parenting style. Fifth, substantial pre-separation involvement by fathers with parenting pre-separation is associated with substantial post-separation involvement of fathers with children,64 which in turn supports positive outcomes for children. Despite a plethora of recent research, the available empirical evidence has not established a link between well-being outcomes and shared care arrangements that suggests that such arrangements are any better for children than those involving regular contact with each parent in the context of positive inter-parental and parent–child relationships. On the basis of an analysis of the existing evidence, Fehlberg and colleagues have concluded that ‘so far, there is no empirical evidence showing a clear linear relationship between shared time and better outcomes for children’.65 Nor is there consistent evidence on detriment arising from these arrangements except in circumstances involving high conflict or family violence in 59 Kaspiew et al., 2009, above n 20, pp 267–73; De Maio et al., 2013, above n 22, part 7.1.4. 60 Kaspiew et al., 2009, above n 20; De Maio et al., 2013, above n 20; Smyth et al., above n 19; Cashmore et al., above n 20, e.g., p 34; E M Hetherington and Joan Kelly, For Better or for Worse, Norton, New York, 2002; E Maccoby and R Mnookin, Dividing the Child, Harvard University Press, Cambridge, MA, 1992. 61 See, e.g., Bruce Smyth, Bryan Rodgers, Liz Allen and Vu Son, ‘Post-Separation Patterns of Children’s Overnight Stays with Each Parent: A Detailed Snapshot’ (2012) 18 Journal of Family Studies 202; Rae Kaspiew, Juliet Behrens, Bruce Smyth, ‘Relocation Disputes in Separated Families Prior to the 2006 Reforms: An Empirical Study’ (2011) 86 Family Matters 72; and internationally, see, e.g., Jacob E Cheadle, Paul Amato and Valarie King, ‘Patterns of Nonresident Father Contact’ (2010) 47 Demography 205. 62 Kaspiew et al., 2009, above n 20, chapter 11; ME Whiteside and BJ Becker, ‘Parental and the Young Child’s PostDivorce Adjustment: A Meta-Analysis with Implications for Parenting Arrangements, (2002) 14 Journal of Family Psychology 2; see also Joan Kelly, ‘Risk and Protective Factors Associated with Child and Adolescent Adjustment Following Separation and Divorce: Social Science Applications’ in Kathryn Kuehnle and Leslie Drozd, Parenting Plan Evaluations: Applied Research for the Family Court, Oxford University Press, Oxford 2010. 63 For example, Amato and Gilbreth, above n 17; Irwin Sandler, Sharlene Wolchik, Emily Winslow, Nicole Maherer, John Moran and David Weinstock, ‘Quality of Maternal and Paternal Parenting Following Separation and Divorce’ in Kuehnle and Drozd, above n 62, p 85. 64 Kaspiew et al., 2009, above n 20, p 168. 65 Belinda Fehlberg, Bruce Smyth, Mavis Maclean and Ceridwen Roberts, ‘Legislating for Shared Time Parenting after Separation: A Research Review’, (2011) 25 International Journal of Law, Policy and the Family, Citing Bruce Smyth ‘A Five-Year Retrospective of Post-Separation Shared Care Research in Australia’ (2009) 15 Journal of Family Studies 36.

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clinical samples.66 An area of particular contention in the shared care debate is the question of whether overnight stays with a non-primary caregiver are appropriate for children in 0–3 year  age bracket: the message that emerges from the substantial body of academic literature on this topic in recent years is, not surprisingly, that it depends on the circumstances of the family, the nature of child’s relationship with each parent and the capacity of each parent to provide sensitive and appropriate care for the child.67 In summary, the discussion in this section has outlined the empirical evidence on postseparation parenting in Australia. The data from AIFS LSSF, AIFS SRSP and the ABS show that, after separation, most children live in arrangements involving most nights with their mothers. AIFS LSSF Wave 1 data show that shared care arrangements are most likely to be utilised for children in the 5–11 year age group and in families with features that support such arrangements working effectively, including a history of significant father involvement pre-separation. However, there are also children in shared care arrangements without these positive aspects and, as discussed in 5.7, AIFS LSSF Wave 1 data showed that mothers with safety concerns were slightly more likely to report shared care arrangements than parents without these concerns. In relation to parental responsibility, even taking into account the differences in reports by mothers and fathers, shared decision making across a range of domains is reported by a minority of parents (between a quarter and a third). Again, the factors connected with shared decision making are varied and include the father’s pre-separation parenting history and the interlinked question of post-separation parenting time, the age of the child and the extent to which family violence is present or has occurred. In contrast with these social patterns, court orders reflect a legal expectation of shared decision making in the majority of cases even when allegations of family violence or child abuse have been raised separately or together. The empirical evidence base on how outcomes for children are influenced by various factors, including parenting arrangements, provides few certain answers. It demonstrates the complexity and variability of post-separation family life, establishes that children are negatively affected by conflict and family violence and shows that positive relationships between parents support healthy development. The main message from this research is consistent with the conclusion in the Every Picture Report that there is no ‘one size fits all’ solution in post-separation parenting.68 The discussion in this section sets the scene for the discussion at 6.3 (beginning with a brief historical discussion) of how parenthood is conceptualised in the legal framework. 66 Kaspiew et al., 2009, above n 20, found little evidence of variation in child well-being according to time arrangements, chapter 11; an initial finding in this study that shared care arrangements where there were safety concerns lead to poorer outcomes for children according to mothers’ reports p 270, was sustained to a less clear extent in Wave 2 of the research: Qu and Weston (2010), above n 26, p 149. McIntosh et al., 2010, above n 30, pp 13–14 found an association between poorer outcomes for children in shared care. Study 1 in this report was based on families who used two different types of community based mediation and were characterised as being involved in ‘high conflict’ separation; for a discussion of research evidence suggesting some risk from shared care arrangements in some circumstances, see Jennifer McIntosh and Bruce Smyth, ‘Shared Time Parenting: An Evidence Based Matrix for Evaluating Risk’ in Kuehnle and Drozd, above n 62, 155; see also sources at above n 54. 67 See sources above n 54. 68 Every Picture Report, above n 2, para 2.39, p 31.

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6.3 Legal concepts relating to parenthood in Part VII: An historical overview In the 40 years since the implementation of the FLA, Part VII has expanded from 10  simple provisions to a complex series of provisions and sub-provisions occupying 137  pages of one of the main consolidated printed versions of the FLA.69 At the outset, Part VII provided a very simple framework based on the paramountcy of the welfare principles and a few simple provisions dealing with types of orders a court may make and some more technical provisions in support of those powers. Over time, Part VII has become much more complex, arguably more prescriptive and, in the words of Richard Chisholm, it now presents as ‘a daunting tangle of provisions that make it so tricky to work out what’s best for children’.70 The best interests principle remains paramount, but the courts’ consideration of ‘best interests’ is informed by objects, principles, primary and additional considerations, a presumption of equal shared parental responsibility and a mandatory consideration of equal or substantial and significant time (with caveats) where orders are made pursuant to the presumption, and numerous other provisions dealing with a range of other issues. As noted in 5.7, in considering the reforms implemented since 1995, two sets of concerns are evident: one is to encourage shared parenting after separation and the other is to ensure that children are protected from harm and that parenting arrangements appropriately respond to any historical or ongoing family violence. In the 1996 amendments the shared parenting concern was most strongly evident, particularly in the statements embodied in the objects provisions.71 Each concern was clearly evident in the 2006 amendments, but for a constellation of reasons, the shared parenting messages had greater impact than the protection messages.72 The 2012 amendments were oriented towards retaining support for shared parenting but tipping the balance in favour of protection where a tension existed between supporting ongoing parental involvement and protection from harm, as discussed in Chapter 5. Until 1995, parenthood as described in Part VII rested on the concepts of ‘guardianship’, ‘custody’ and ‘access’. The prima facie position was that, in the absence of a court order to the contrary, both parents had guardianship and custody was shared (section 61). Guardianship referred to responsibility for long-term decision making about the child and ‘custody’ was a concept that applied both to time and decision making. In litigated matters, the common pattern was for orders to be made that vested both parents with guardianship and the mother with ‘custody’, which brought with it the right to determine the father’s ‘access’.73 ‘Custody’ denoted decision-making power for day-to-day decisions about the child and majority time with the child. The parent who did not have custody of the child 69 Australian Family Law Act 1975 with Regulations and Rules, 31st edn, CCH, Sydney. 70 Richard Chisholm, ‘Legislating about Family Violence: The Family Law Amendment (Family Violence) Bill 2010’ (2010) 3 Australian Journal of Family Law 283, 295. 71 See also Rae Kaspiew, ‘Family Violence in Children’s Cases under the Family Law Act 1975 (Cth): Past Practice and Future Challenges’ (2008) 14 Journal of Family Studies 279. 72 See Rhoades, 2010, above n 4, Dewar, 2010, above n 4. 73 Jennifer McIntosh and Richard Chisholm, ‘Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation’ (2008) Journal of Family Studies 37.

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(usually the father) generally exercised ‘access’: in some discourses about post-separation parenting in this era, being an ‘access’ parent was seen to be problematic as it represented a status of less significance than that occupied by ‘custodial’ parents. These concepts were based on those applied in the legal regime that preceded the FLA, the Matrimonial Causes Act 1959 (Cth) (2.3).74 The first significant amendment to Part VII came in 1983 and introduced a set of factors that were to be considered in determining what orders were consistent with the paramount consideration, the child’s ‘welfare’. This became known as the ‘welfare checklist’ and was the precursor to the current section 60CC list of ‘primary and additional’ considerations. The first set of amendments that introduced substantive changes to the fundamental concepts and other aspects of the legislation was made in 1995 (becoming effective in 1996), with a complete overhaul of Part VII. These changes abolished the concepts of guardianship, custody and access, reflecting a concern to reconfigure the way that postseparation parenthood—particularly the role of fathers—was thought about socially and dealt with legally. These changes introduced a new conceptual basis for post-separation parenthood in legal terms. Parenting orders could be ‘residence’ orders (specifying who the child was to live with), contact orders (specifying who the child was to have contact with) and ‘specific issues’ orders in relation to parental responsibility, which could allocate longterm or day-to-day responsibility for the child to either or both parents and make orders in relation to other aspects of responsibility—allocating health decisions for one parent, for example. Parental responsibility was automatically vested in each parent unless altered by a court order. This set of amendments also introduced a set of normative statements (objects  and principles) that were to guide the interpretation of Part VII and changed the wording of the paramountcy provision from ‘welfare’ to ‘best interests’. These latter changes reflect the influence of the United Nations Convention on the Rights of the Child (see further 6.5).75

6.4 The contemporary Part VII framework In 2006, the legislative statements about shared parenting in Part VII became stronger still, as did provisions dealing with the need to protect children from harm from abuse or exposure to family violence. The 2012 amendments left the substantive framework intact but, as outlined in the preceding chapter, aimed to encourage disclosure of abuse and family violence and provide legislative guidance about the priority to be accorded the protection from harm principles as against the meaningful involvement principle. The 2006 amendments saw the introduction of a presumption in favour of equal shared parental responsibility (with exceptions—see further below). Where orders are made pursuant to the presumption, courts are obligated to consider making orders for equal or substantial and significant time with each parent (section 65DAA(1) and (2)), where this is considered to be reasonably practicable and in the child’s best interests. The previous terminology describing living arrangements was changed again (section 64B): from 2006 74 Rhoades, 2010, above n 4. 75 Replacement Explanatory Memorandum, Family Law (Family Violence and Others Measures) Bill (Cth) Commonwealth Parliament, House of Representatives, Canberra, 2011.

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the legislation has specified that parenting orders may deal with ‘the person or persons with whom a child is to live’ (section 64B(2)(a)) and/or ‘the time a child is to spend with another person or persons’ (section 64B(2)(b)), as well as the allocation of parental responsibility (section 64B(2)(c)). In addition, from 2006 the concepts of ‘meaningful involvement’ and ‘meaningful relationship’ were added to the objects and the principles, which were also amended and augmented in other ways. Provisions directing attention to family violence and child safety issues were also included throughout the framework, as indicated below. The following summary of how they now read has the 2006 changes in italics and the 2012 changes in bold: • Objects (section 60B): + to ensure children have the benefit of both parents having meaningful involvement in their lives to the maximum extent consistent with their best interests (subsection 1(a)); + protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (subsection 1(b)); + ensuring children adequate and proper parenting to help them achieve their full potential (subsection 1(c)); + ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children (subsection 1(d)). • Principles (to apply except when it is or would be contrary to the child’s best interests): + 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 (subsection 2(a)); and + children have a right to spend time 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) (subsection 2(b)); and + parents jointly share duties and responsibilities concerning the care, welfare and development of their children (subsection 2(c)); and + parents should agree about the future parenting of their children (subsection 2(d)); and + children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture) (subsection 2(e)). + An additional object of this Part is to give effect to the Convention on the Rights of the Child (subsection 4). A further significant aspect of the post-2006 framework in relation to the exercise of the ‘best interests’ discretion is the list of ‘primary’ and ‘additional’ considerations that draw attention to particular issues that may arise. This list of considerations has its origins in the ‘welfare checklist’ that was inserted in 1983, augmented in 1995 and further amended in 2006 and 2012. A significant, and problematic, feature of the 2006 amendments was the adoption of a two-tier system, which specified two ‘primary’ and a number of ‘additional’

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considerations.76 Provisions introduced or amended in 2006 are in italics and those introduced or amended in 2012 are in bold in the following summary: • The primary considerations are: + the benefit to the child of having a meaningful relationship with both of the child’s parents (section 60CC(1)(a)); and + the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(1)(b)). • In applying the [primary] considerations the court is to give greater weight to the consideration regarding protection from harm (section 60CC(2A)). • Additional considerations are: + any views expressed by the child (the court is to attach weight as it considers appropriate having regard to the child’s maturity or level of understanding) ­(section 60CC(3(ca)); + the nature of the child’s relationship with each parent and other persons ­(including grandparents and other relatives) (section 60CC(b)); + the extent to which each of the child’s parents has taken or failed to take the opportunity: – to participate in making decisions about major long term issues in relation to the child (section 60CC(c)(i) – to spend time with the child (section 60CC(c) (ii) – to communicate with the child (section 60CC(c) (iii); and + the extent to which each of the child’s parents has fulfilled or failed to fulfil the ­parents’ obligations to maintain the child (section 60CC(3(ca)); + the likely effect of any changes in the child’s circumstances (section 60CC(d)(i)), including the likely effect on the child of any separation from: – either parent (section 60CC(d)(i) – any other child or other person (including grandparent or other relative) with whom he or she has been living (section 60CC(d)(ii)); and + 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 (section 60CC(3)(e)); and + the capacity of: – each of the child’s parents (section 60CC(f )(i) and – any other person (including any grandparent or other relative of the child) (section 60CC( f )(ii)) to provide for the needs of the child, including emotional and intellectual needs; and 76 Richard Chisholm, Family Courts Violence Review, Attorney-General’s Department, Canberra, 2009; Kaspiew et al., 2009, above n 20, section 15.3.

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+ 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 section 60CC(g); and + if the child is an Aboriginal child or a Torres Strait Islander child: – 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 – The likely impact of any proposed parenting order under this Part will have on that right (section 60CC(h)); and + the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents (section 60CC(i)); + any family violence order involving the child or a member of the child’s family (section 60CC(k)); and + if a family violence order applies, or has applied, to the child or a member of the child’s family, any relevant inferences that can be drawn from that order, taking into account the following: – the nature of the order; – the circumstances in which the order was made; the evidence admitted in proceedings for the order; – any findings made by the court in, or in proceedings for, the order; – any other relevant matter; and + 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 (section 60CC(l)); and + any other fact or circumstances that the court thinks is relevant (section 60CC(m)). In relation to consent orders, having regard to the primary and additional considerations is discretionary (but best interests remains paramount) (section 60CC(5)). One ‘additional’ consideration enacted in 2006 was repealed in 2012: it directed the court’s attention to the extent to which one parent had facilitated the involvement of the other parent in the child’s life. This was known as the ‘friendly parent’ provision and is considered by many commentators to have contributed to concerns about family violence and child safety not being raised when negotiating or litigating parenting arrangements.77 In relation to parental responsibility, there are three main sets of provisions. One provides that parental responsibility is vested in each parent (regardless of relationship status) unless varied by a court order (section 61C). Another is the presumption of equal shared parental responsibility (section 61DA). Courts are not obliged to apply this presumption where an exception can be established on reasonable grounds (this is not a difficult burden of proof to 77 See, e.g., Chisholm, Family Courts Violence Review, ibid.

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establish—it is below balance of probability). The exceptions provided for in the legislation are circumstances where a parent of a child, or a person who lives with a parent of the child, has engaged in abuse of the child or another child in the family or family violence (section 61DA(2)). The presumption may also be rebutted on the basis of evidence (to the balance of probabilities) that satisfies a court that its application would not be in a child’s best interests. Where orders are made for equal shared parental responsibility pursuant to the presumption, the court is obliged to consider whether orders for equal or substantial and significant time are in the child’s best interests and reasonably practicable. The definitions of these terms are discussed in Chapter 8. The third set of provisions specifies how shared parental responsibility is to be discharged, including specifying an obligation to consult the other parent on major long-term issues (section 65DAC). The expectations for post-separation parenting arrangements that are established in Part VII are thus that parental responsibility will be shared equally and that children will, to the extent practicable and consistent with their best interests, share their time between parents to the maximum extent possible. The framework also recognises, however, that this may not be feasible for some families, particularly those who are affected by family violence and child safety concerns. As discussed in Chapter 5, these concerns are relevant to varying extents to a significant proportion of separated families and those who are more significantly affected by these issues are the ones most likely to use the formal parts of the family law system. This analysis highlights the extent to which Part VII is normative, in that the ‘bar’ in relation to time and responsibility is set high, particularly given the nature of the families to whom the law is applied. This point about normativity assumes particular significance when the patterns in parenting arrangements, in relation to time and the exercise of parental responsibility, set out at 6.2, are considered. Among separated parents generally, shared time arrangements remain in the minority, as does the exercise of parental responsibility on a shared basis. The conceptual concerns arising from this and other features of Part VII are considered in 6.6. The application of this framework in case law is discussed in more depth in Chapters 8 and 9. An influence on the current form of Part VII, and approaches to children generally, the United Nations Convention on the Rights of the Child, is outlined next.

6.5 United Nations Convention on the Rights of the Child The UN Convention on the Rights of the Child (CRC)78 was finalised (after a 10-year gestation) in 198979 and ratified by Australia in December 1990.80 It is the most widely 78 Opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1009). 79 John Tobin, ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 Melbourne University Law Review 580, 584. 80 Australian Human Rights Commission, Australia’s Commitment to Children’s Rights and Reporting to the UN, October 2007, available at 9 May 2014.

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ratified human rights treaty around the world81 and reflects ‘remarkable consensus around the question of whether children should have rights’.82 The influence of the CRC was evident in the 1995 family law amendments, particularly the objects relating to the child’s right to know and be cared for by both parents regardless of their relationship status and the shift in the wording of the paramountcy principle from ‘welfare’ to ‘best interests’.83 In the 2012 family violence amendments, the CRC was recognised more strongly still by the insertion of section 60B(4) stating that an object of Part VII is ‘to give effect to the UN Convention on the Rights of the Child’. Unless they are specifically enacted in domestic law, international treaties do not impose legally enforceable rights and obligations. Authority indicates that the impact of ratification is essentially normative, with the High Court of Australia (HCoA) in Teoh holding that, by ratifying a treaty, the executive government was signalling its intention that the executive and its agencies would act in a manner consistent with the treaty.84 In relation to the exercise of judicial power, treaties may, in the absence of countervailing considerations, provide a guide to the direction in which judicial discretion should be exercise or be applied in resolving legislative ambiguity.85 At the time of writing, the implications of the insertion of section 60B(4) into Part VII of FLA has yet to receive significant attention at first instance let alone at appellate level. The potential impact of this provision has been the subject of some debate, but the weight of academic of opinion suggests it may be limited.86 Practitioner opinion suggests a greater potential impact87 and as yet judicial consideration of the question has not taken place. The influence of the CRC on executive actions in Australia can be seen in a numbers of measures adopted in recent years, including the development of the Framework for Protecting Australia’s Children and the establishment of Children’s Commissioners in all state and territories, and federally in recent years. The actions of parties to the CRC are monitored through four-yearly reports that ratifying states are obliged to provide to United Nations Committee on the Rights of the Child (CRC/C), which provides a response to the report. These responses provide important insight into the extent to which parties to the Convention are complying with the international benchmarks that the act of ratification signifies they are committed to upholding. The CRC/C’s response to Australia’s most recent report will be discussed after the main aspects of CRC for family law are outlined. CRC comprises 54 Articles covering a wide range of issues, including issues relating to procedures for administering the convention (for example, Part III) and, more substantively, social, economic, educational and cultural rights. As noted earlier, CRC is the source of the 81 ibid. 82 John Tobin, ‘The Development of Children’s Rights’ in Geoff Monahan and Lisa Young (eds), Children and the Law in Australia, Lexis Nexis Butterworths, Chatswood, Australia, 2008, pp 23–52. 83 Explanatory Memorandum. 84 Teoh (1995) 183 CLR 273. 85 ibid. 86 Michelle Fernando, ‘Express Recognition of the UN Convention on the Rights of the Child in the Family Law Act: What Impact for Children’s Participation?’ (2013) 36 UNSW Law Journal 88; Patrick Parkinson, ‘The Family Law Act and the UN Convention on Children’s Rights: A New Focus on Children?’, Human Rights Now, . 87 See the view of Patrick Fitzgerald of the Legal Aid Commission of Tasmania, quoted in Fernando, 2013, ibid., p 1.

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‘best interests’ principle (Article 3) applicable to all ‘actions concerning children’ in executive and judicial contexts88 and also to parents (Article 18). From a family law perspective, further significant Articles are those relating to the child’s relationship rights, their rights to be safe and what have become known as their participation rights and cultural rights. Each of these is considered in turn. Under the CRC, a child is ‘every human being’ under the age of 18 years unless the law of majority is different in the country in which they live (Article 1). Relationship rights and parental obligations are dealt with in a range of articles, which recognise that parties (or, when applicable, extended family members and community) have the fundamental responsibility for raising children (Article 5, see also Article 27.2) and that the care and protection responsibilities of governments ‘take into account’ the duties and responsibilities of parents (Article 3.2). Article 18 further promotes ‘recognition of the principle that both parents have common responsibilities for the upbringing and development of the child’ and that the primary responsibility in this area falls on parents (or legal guardians) rather than the state. Separation from parents against the child’s will should only occur in contexts where competent authorities subject to judicial review determine such an action is in the ‘best interests’ of the child. Such contexts include situations where the child is subject to abuse or neglect in the care of a parent or where the parents are living separately and it is necessary to determine the child’s place of residence (Article 9.1). Where such separation occurs, children have the right to maintain ‘personal relations’ and direct contact with parents unless it is contrary to best interests (Article 9.3). Rights to safety are recognised in a number of ways. Fundamentally, Article 19.1 provides that ‘States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care the child’. Article 19.2 establishes an expectation that programs to support the prevention of, and to provide responses to, abuse will be provided. Article 34 deals with the prevention of sexual abuse and exploitation, including prostitution and pornography. Obligations to take ‘all appropriate measures’ in supporting children to recover from abuse, neglect, exploitation, torture and cruel and inhuman treatment are set out in Article 39. The participation principle rests on number of Articles, including Article 12, which provides: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. 88 United Nations Committee on the Rights of Children, General Comment No 14 (2013) on the right of a child to have their bests interests taken as a primary consideration (Art 3, para 1), adopted by the Committee at its sixtysecond session (14 January – 1 February 2013), para 14(b)).

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Article 9.2, which as explained earlier deals with separating children from parents, recognises that ‘all interested parties shall be given an opportunity to participate in the proceedings [relating to the decision] and make their views known’. Article 13 further recognises a right of freedom of expression including ‘freedom to seek, receive and impart information and ideas of all kinds’. The question of child participation in family law proceedings is examined in more depth in Chapter 7 with case law on the role of children’s views discussed in Chapter 8. The UN CRC sits alongside the UN Declaration on the Rights of Indigenous Peoples.89 In the CRC, cultural rights are recognised in Article 2, dealing with freedom from discrimination, Article 5 (recognising child-rearing practices may take different forms) and most substantively in Article 30, which provides that: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Decision making in relation to parenting cases involving Aboriginal and Torres Strait Islander children is examined in Chapter 9. In theory, the CRC provides a way of shifting discourses about children, away from conceptualising them as vulnerable, incompetent and essentially a work in progress whose needs are best judged by adults, towards applying an approach that accords them agency in their own lives.90 However, John Tobin has observed that: [o]n balance … there has been no deliberate or concerted effort to use the CRC and the notion of children as rights bearers as the benchmark against which to develop, implement and monitor laws and policies affecting children.91

Australia’s record in meeting its obligations as a party to the CRC has attracted criticism from the CRC/C. In relation to Australia’s most recent report, provided in 2012, the following comments of relevance to the matters discussed in this book were made:92 • The CRC/C endorsed the 2012 family violence amendments, the National Plan to Reduce Violence against Women and Their Children 2010–2022 and the National Framework for Protecting Australian Children 2009–2020.93 • The CRC/C expressed its concern at the lack of a ‘comprehensive child rights Act at the national level … due to [Australia’s] federal system, the absence of such legislation has resulted in fragmentation and inconsistencies in the implementation of child 89 The declaration was adopted by the United Nations General Assembly in September 2007 and Australia adopted it on April 3, 2009. 90 Carol Smart, ‘Children and the Transformation of Family Law’ in John Dewar and Stephen Parker, Family Law Processes, Practices and Pressures, Hart Publishing, Oxford, 2003, p 223. 91 John Tobin, ‘The Development of Children’s Rights’ in Geoff Monahan and Lisa Young (eds), Children and the Law in Australia, Lexis Nexis Butterworths, Australia, 2008, pp 23, 24. 92 Committee on the Rights of the Child, sixtieth session 29 May – 15 June 2012, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, CRC/C?AUS/CO4, available at 9 May 2014. 93 ibid., para 4.

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rights across its territory, with children in similar situations being subject to variations in fulfilment of their rights depending on the state or territory in which they reside’. • A further concern related to ‘the federal system present[ing] practical challenges to the coordination of activities for the consistent implementation of the Convention, resulting in significant disparities in the implementation of the Convention across the State party’s states and territories’. • Continuing the theme of concern about the capacity for co-ordinated action, the CRC/C noted the ‘absence of a comprehensive national plan of action for implementing the Convention as a whole and the lack of a clear mechanism to link the implementation of the National Plan, the National Framework and the National Early Childhood Development Strategy’. • Although it welcomed the introduction of a National Children’s Commissioner, CRC/C noted that the resources allocated to this role were not adequate to support its mandate and also commented on the lack of representation of the interests of Aboriginal and Torres Strait Islander children. • The CRC/C expressed concern about racism, discrimination and the position of Aboriginal and Torres Strait Islander children.94 • There was insufficient knowledge of the best interests principles across all administrative and judicial domains concerned with children.95 • The CRC/C expressed concern about the large number of Aboriginal and Torres Strait Islander children being placed into care and not having access to support for the preservation of their cultural and linguistic identity.96 • The CRC/C expressed ‘grave concern’ about the ‘high levels of violence against women and children’ and noted that ‘there is an inherent risk that the coexistence of domestic violence, lawful corporal punishment, bullying, and other forms of violence in society are interlinked, conducing to an escalation and exacerbation of the situation’.97 • It also noted that ‘the training approaches adopted by [Australia] to recognize and address potential cases of abuse and neglect by professionals working with or for children, including doctors and other medical personnel, as well as teachers, remain inadequate’.98 The themes of fragmentation, lack of consistency and concern about family violence and child safety in the CRC/C’s response to Australia’s report are consistent with themes highlighted throughout this book. The discussion in the next section of this chapter draws these and other themes together to reflect on the form and content of Part VII. 94 95 96 97 98

ibid., para 29. ibid., para 31. ibid., para 37. ibid., para 51. ibid., para 55.

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6.6 Part VII: Current concerns In the years since the 2006 amendments, a range of concerns about the workability of the Part VII framework has been raised in case law, research and commentary. Many of these remain pertinent in the context of the 2012 family violence amendments. An overarching concern arises from the complexity of the Part VII framework as it now stands. This complexity has a number of implications. Perhaps most significantly, the framework fails to provide parents and the community at large with an accessible means of understanding the law in relation to post-separation parenting, including the nature of the duties and responsibilities of separated parents. Rick O’Brien, the then deputy chair (now chair) of the Family Law Section of the Law Council of Australia, observed that ‘a law that cannot be understood by the people affected by it—or worse still lends itself to being actively misunderstood—is a bad law. That is particularly so when we are talking about a law that affects families and children’.99 Evidence from the evaluation of the 2006 reforms showed that professionals in the system, including judges, family lawyers and family dispute resolution practitioners, reported a common misunderstanding among parents that equal shared parental responsibility equated to equal care and that fathers had an entitlement to ‘equal time’.100 This study also showed that professionals found it difficult to work with the existing Part VII framework in a way that supported child-focused discussions with separated parents, instead finding that the new parental responsibility provisions became linked with expectations about parental rights.101 O’Brien attributes the ‘convoluted state’ of Part VII to the fact that the 2006 amendments ‘tried to address the perceived need of many in the community for recognition of their rights as parents, but tried to address that without appearing to do so overtly. As a result we have a piece of legislation that is hopelessly compromised’.102 A second related implication of the complexity of the framework is the extent to which professionals find it difficult to understand and work with.103 Again, the evidence from the evaluation of the 2006 reforms demonstrated that judges and lawyers found the complexity of Part VII made giving client advice, litigating parenting disputes, and writing judgments in parenting cases ‘more time-consuming and complicated’.104 As noted at the beginning of this chapter, judges have regularly remarked upon the complexity of the legislation in their judgments. For example, Part VII was described by the Full Court in Marvel v Marvel as ‘convoluted’105 and by Warnick J in Zabini & Zabini as ‘a dilemma of labyrinthine complexity’.106 The evaluation also found that lawyers were not always explaining the law to their clients correctly, largely due to misconceptions about the distinction between equal shared parental responsibility and equal time. For example, a federal magistrate ‘observed  99 Rick O’Brien, ‘Simplifying the System: Family Law Challenges—Can the System Ever be Simple?’ (2010) 16  Journal of Family Studies 264, 266. 100 Kaspiew et al., 2009, above n 20, pp 210–11. 101 ibid., p 206. 102 O’Brien, above n 99, p 268. 103 Rhoades et al., 2013, above n 4. 104 Kaspiew et al., 2009, above n 20, p 336, see also Rhoades et al., 2013, above n 4. 105 Marvel & Marvel [2010] FamCAFC 101, 87. 106 Zabini & Zabini [2010] FamCA 10.

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that they had noticed some affidavits—in explaining why particular arrangements had previously been made—citing erroneous legal advice on a mythical 50–50 rule: ‘“They will say: ‘My lawyer told me the law has changed and you get equal time now and the judge wouldn’t allow something that wasn’t equal time’”.’107 Other concerns revolve around family violence and child safety. Although the 2012 amendments went some way towards resolving the tension between the two ‘primary considerations’ in the best interests test—the child’s right to a meaningful relationship with both parents and the need to be protected from harm—concerns about the lack of guidance with regard to decision making remain. For example, in the Family Courts Violence Review report, Richard Chisholm identified a significant gap in the Part VII framework when findings about family violence or concerns about child safety have been made.108 As Chisholm explains, when such findings are made, and the presumption of equal shared parental responsibility is either not applied or rebutted, the legislation does not specify what the subsequent steps in the decision-making process should be. This is in contrast to the way in which the Part VII framework specifies consideration of particular outcomes when the presumption is applied in section 65DAA. In his analysis of the problem in the Family Courts Violence Review, Chisholm recommended a consideration of these elements of Part VII to remove the link between parental responsibility and time and to avoid any legislative suggestion that one kind of arrangement was any better than any other kind.109 He advocated a revision that would be ‘more clearly based on promoting the child’s interests rather than accommodating notions of parental rights’.110 As our earlier overview of the legal framework shows, this proposal was not adopted: instead the Australian Parliament enacted the ‘tie-breaker’111 provision in section 60CC(2A). In commenting on the Exposure Draft of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, Chisholm observed that the fundamental problem spelt out in his earlier report had not been rectified by this measure and the framework still fell short of ‘provid[ing] legislative guidance [on the two fundamental principles] without giving people the wrong impression, and without tying people up in legal technicalities’.112 Consistent with this, research by Helen Rhoades and colleagues on the application of the Part VII framework demonstrates that concerns about the lacunae in the decision-making pathway identified by Chisholm remain pertinent in the post-2012 amendment practice environment. Rhoades and her colleagues argue that this research indicates a continuing need for clearer principles in relation to such cases. On the basis of the consultations with 107 Kaspiew et al., 2009, above n 20, p 212. 108 Rhoades et al., 2013, above n 4. 109 Chisholm 2009, above n 76, p 133. 110 ibid. 111 Helen Rhoades, Nareeda Lewers, John Dewar and Elise Holland, ‘Another Look at Simplifying Part VII’ (2014) Australian Journal of Family Law 28 (forthcoming). 112 Richard Chisholm, ‘Legislating about Family Violence: The Family Law Amendment (Family Violence) Bill 2010’ (2010) 24 Australian Journal of Family Law 283. See also Steven Strickland and Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (2014) 28 Australian Journal of Family Law 1.

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family law system professionals conducted for the research,113 such principles should specify the need for consideration of the following factors: • the nature and frequency of the family violence; • how recently the family violence occurred; • the likelihood of further family violence occurring; • how the child was subjected to or exposed to family violence; • the physical or emotional harm caused to the child; • any views expressed by the child on the matter; and • any steps taken by the violent party to prevent further violence from occurring.114 A further concern focuses on the question of whether the existing Part VII framework provides adequate support for arrangements that take into account children’s needs at different developmental stages of their lives, notwithstanding the challenges and concerns already outlined.115 A developmental perspective on parenting arrangements uses knowledge and theory of child development to inform thinking and practice in such a way that post-separation parenting arrangements support rather than impair optimum development. Family law practice has been influenced by theories of child development and the research upon which they are based, since the inception of the Family Court of Australia, often via the social scientists who play a role in various family law processes.116 However, the provisions in support of shared parenting have been seen to create particular tensions between sound social science practice and the approaches that may be adopted on the basis of the legal framework.117 As the earlier discussion indicates (6.2.2.5), some aspects of these approaches are contested but others are generally well accepted. The research being conducted by Rhoades and colleagues also examined the extent to which practice approaches among family dispute resolution practitioners and lawyers are informed by social science or legal principles, and the way these approaches are or are not supported by the Part VII framework. In addition to the perspective on family violence already referred to, a further conclusion from this study is that there are significant inconsistencies in some critical areas between approaches based on social science and those based on law.118 The first was the failure of the legal framework and lawyers to adequately address the harm created by exposure to parental conflict, despite empirical evidence and widespread acceptance among social scientists and family dispute resolution practitioners of its significance to children’s well-being.119 This suggests the need for a broad interpretation

113 The research was conducted in two stages. Stage One involved consultations with 39 family law system professionals. Stage Two involved a survey of 110 family law practitioners and consultations with 20 family law practitioners and 17 family law court judges: above n 111, p 6. 114 Rhoades et al., 2014, above n 111. 115 See discussion in Kaspiew et al., 2009, above n 20, section 9.4.1 and Rhoades et al., 2013, above n 4. 116 Rhoades, 2010, above n 4. 117 Rhoades et al., 2013, above n 4. 118 ibid., p 217. 119 ibid., p 217.

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of the concept of harm, which is consistent with a General Comment by the CRC/C on the interpretation of the best interests standard: Children’s well-being, in a broad sense includes their basic material, physical, educational and emotional needs, as well as needs for affection and safety … Applying a best interests approach to decision making means assessing the safety and integrity of the child at the current time; however, the precautionary principle also requires assessing the possibility of future risk and harm and other consequences of the decision for the child’s safety.120

The second discrepancy between the legal framework and social science perspectives highlighted by Rhoades and colleagues was the particular emphasis placed on parenting capacity (including the capacity to act protectively in relation to children) in the assessments made by social scientists, but not by lawyers.121 The aspect of parenting capacity that was critical to the considerations of social scientists was the extent to which a parent is responsive to a child’s needs. Although some provisions in the ‘additional considerations’ in section 60CC direct attention to parenting capacity, Rhoades and colleagues argue that ‘responsive parenting’ is not adequately recognised in the existing framework and that the ‘meaningful relationship’ element creates a ‘pull’ in an inconsistent direction.122 In summary, this discussion highlights several concerns about the existing form of the Part VII framework. These include its complexity and the consequent tendency for misreading and misapplication of key principles to occur, both in professional practice and among separated parents. Further concerns relate to the extent to which the framework adequately addresses the needs of children in particular areas, namely by specifying the questions that should be considered where exposure to family violence has been established, recognising the relevance of exposure to inter-parental conflict to best interests reasoning and also acknowledging the importance of parenting efficacy to child well-being.

6.7 Conclusion In this chapter we have introduced the legislative framework applicable to parenting arrangements and outlined the social backdrop to the development and operation of this legislation. Our discussion has shown that while gender roles have shifted to some extent in recent decades, day-to-day parenting responsibilities in intact families are still executed by mothers to a significantly greater extent than fathers. Research on parenting in separated and intact families has, however, shown that time is not the critical aspect of parenting— neither of mothering nor of fathering. Rather, the way parenting is carried out is important, with the evidence highlighting the benefit to children of warm and consistent parenting. Although the way post-separation parenting is enacted varies considerably among families, arrangements where children spend most nights with their mothers remain the norm and parental responsibility is reportedly jointly exercised by between a quarter and a 120 United Nations Committee on the Rights of Children, General Comment No 14: On the Right of a Child to Have His or Her Best Interests Taken as a Primary Consideration (Art 3, para 1), adopted by the Committee at its sixty- second session (14 January – 1 February 2013) pp 15–16, para 71 and 74. 121 Rhoades et al., 2013, above n 4, 213. 122 ibid., p 218.

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third of separated parents. This is in contrast to the expectations established in the Part VII framework, which sets out a presumption in favour of equal shared parental responsibility linked to an obligation on courts to consider equal or substantial and significant time arrangements. Even in the context of the encouragement of shared parental responsibility and shared time, the best interests of the child remain paramount in the Part VII framework. This is consistent with CRC, as is the emphasis on children being protected from harm from exposure to family violence and child abuse, and recognition of their right to a relationship with each parent regardless of the parents’ relationship status. In practice, some features of the Australian environment have raised concerns from the standpoint of Australia’s obligations as a signatory to CRC, including the fragmentation of responses to child safety across different jurisdictional frameworks and our high level of family violence. These concerns resonate with some of the ongoing debates about the extent to which the Part VII framework provides support for child-focused decision making even after the 2012 family violence amendments. Analysis and research suggest the complexity of the legislation remains an issue. Research informed the 2012 amendments and has the ongoing potential to provide clearer guidance on the questions for consideration in matters involving family violence, as well as recognising exposure to conflict as a source of harm and the importance of parenting efficacy for child well-being.

CHAPTER

7

Processes for Resolving Parenting Disputes 7.1 7.2 7.3 7.4 7.5

Introduction 206 Sorting things out: Dynamics and issues  208 Participation of children and young people  212 Family Relationship Centres and other elements of the system  217 Alternative Dispute Resolution in family law: Development and debates  221 7.5.1 Family dispute resolution  224 7.5.1.1 Confidentiality, admissibility and practitioner obligations  227 7.5.1.2 When is FDR applied and how ‘mandatory’ is it?  228 7.5.1.3 FDR, family violence and child safety concerns  232 7.5.1.4 Children’s interests in FDR  235 7.5.1.5 Other out of court mechanisms for reaching agreement  239 7.5.1.6 Concerns about private settlement  243 7.6 Court processes  244 7.6.1 Child-focused court processes  245 7.6.2 Magellan 249 7.6.3 Participation of children and young people in court processes  250 7.7 Ongoing support  254 7.8 Conclusion 257

7.1 Introduction This chapter describes the way that parenting arrangements are made, in the context of evidence of varying dynamics reflecting agreeing, bargaining and disputing behaviours among separated parents. It provides an overview of how the main formal avenues for resolving parenting disputes—family dispute resolution and courts—operate, with a particular focus on how child participation is supported in each of these contexts. A further purpose of the chapter is to explain the development of the current configuration of the family law system for resolution of parenting disputes and to examine recent policy shifts and current practice challenges.

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Empirical evidence (7.2) demonstrates that most separated couples resolve their parenting and financial arrangements with little assistance from formal services.1 A significant minority seeks information, advice or assistance from services such as Family Resource Centres (FRCs) and lawyers (private or publicly funded) to support informal negotiations.2 A smaller proportion still use mediation (family dispute resolution)3 and even fewer use courts.4 The families who do use family dispute resolution, lawyers and courts to resolve disputes usually have particularly complex needs, including those that result from family violence and child safety concerns.5 A significant aspect of the policy philosophy behind the 2006 family law reforms was an intention to remove parenting disputes in particular from legal arenas and to provide greater support for mediation-based mechanisms building on the directions established in the 1995 changes. The 2006 changes to the substantive parenting provisions in Part VII, described in Chapter 6, were accompanied by legislative changes to procedural requirements for parenting matters and significant reforms to the family law system. Underlying these changes was a recognition of the complexity and fragmentation of the family law system with an important 2001 report comparing the system to a ‘maze’ with a series of ‘random’ entry points that had a ‘disproportionate influence on the path taken’.6 In 2003, further calls for reform were made in the Every Picture Report, which identified a need for the system to become less complex,7 more child focused and to support shared parenting at the same time as protecting children and caregivers from family violence and abuse.8 A core element of the 2006 changes to the system was the creation of 65 FRCs, which have a threefold charter: to strengthen family relationships, help families stay together and assist families through separation.9 In light of the more comprehensive evidence base on the operation of the family law system and the needs of its users that has been developed in more recent times, shifts in the 1 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, and Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009; John de Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Measures) Act 2011, Australian Institute of Family Studies, Melbourne, 2013. 2 ibid. 3 ibid. 4 ibid. 5 ibid. 6 Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation: Report of the Family Law Pathways Advisory Group (Pathways Report), Commonwealth of Australia, Canberra, 2001, p 16. 7 For example, Recommendation 10 and 11. House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (‘Every Picture Report’ ), 2003. 8 For example, Recommendation 1 and 2. ibid. 9 Family Relationships Online, Family Relationship Centers—Helping Families Build Better Relationships, at 27 April 2014.

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focus of policy and program development have occurred since 2006.10 Three main themes are discernable in these shifts. The first is the need to develop service models that are geared to the level of complexity evident among the families who use the services.11 Second is the need to develop more streamlined and coordinated services to provide different kinds of support—for example, legal and social welfare services—to families within one program, requiring significant levels of collaboration between professionals from legal and non-legal arenas.12 Third is the need to provide access to the most suitable and low cost form of justice appropriate, recognising that different dispute resolution mechanisms are appropriate in different circumstances.13 An additional theme in research and commentary identifies further scope to improve the family law system’s capacity to support children and allow for their participation to the maximum extent possible.14 This chapter begins with an overview of the empirical evidence on service use by separated parents. A recent element of the system—FRCs—is then discussed, along with some other services and initiatives introduced in 2006. An introductory discussion of child participation precedes more specific discussions of how this occurs in the context of family dispute resolution and court processes in the sections describing each of these processes.

7.2 Sorting things out: Dynamics and issues A large majority of parents sort their parenting arrangements out fairly quickly after separation (within 12–18 months), with no or light use of services. The introduction of 10 Kaspiew et al., 2009, above n 1; De Maio et al., 2013, above n 1; Lixia Qu and Ruth Weston, Parenting Dynamics after Separation: A Follow-Up Study of Parents who Separated after the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2010; Lixia Qu, Ruth Weston, Lawrie Moloney, Rae Kaspiew, and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014; Rae Kaspiew, John De Maio, Julie Deblaquiere, and Briony Horsfall, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases, Final Report, Australian Institute of Family Studies, Melbourne, 2012; Rae Kaspiew, Rachel Carson, Sharnee Moore, John De Maio, Julie Deblaquiere, and Briony Horsfall. Independent Children’s Lawyer Study: Final Report, Australian Institute of Family Studies, Melbourne, 2013; Australian Law Reform Commission (ALRC) and NSW Law Reform Commission, Family Violence: A National Legal Response, Final Report, Australian Law Reform Commission and NSW Law Reform Commission, Sydney, 2010; FaHCSIA, Family Support Program Future Directions Discussion Paper, 2012, ; Robert McClelland, ‘Building Better Partnerships between Family Relationship Centres and Legal Assistance Services’, Media Release, Attorney-General’s Department, Canberra. 11 ALRC 2010, above n 10; Australian Government, Department of Social Services, Family Support Program Future Directions, at ; Allen Consulting Group, Research on Family Support Program Family Law Services, Final Report 2013, Allen Consulting Group. 12 Lawrie Moloney, Rae Kaspiew, John De Maio, Julie Deblaquiere, Kelly Hand and Briony Horsfall, Evaluation of the Family Relationship Centre Legal Assistance Partnerships Program Final Report, Australian Institute of Family Studies, 2011. See also Lawrie Moloney, Lixia Qu, Ruth Weston, Kelly Hand, ‘Evaluating the Work of Australian Family Relationship Centres: Evidence from the First Five Years’ (2013) 51 Family Court Review 234; Kaspiew et al., 2013, above n 10. 13 Australian Government, Attorney-General’s Department, Report by the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System, Attorney-General’s Department, Canberra, September 2009. 14 See, e.g., Kaspiew et al., 2013, above n 10; Alasdair Roy, Gabrielle McKinnon, and Heidi Yates, Talking with Children and Young People about Participation in Family Court Proceedings, Office of the ACT Children and Young People Commissioner, Canberra, 2013.

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family dispute resolution with exceptions in 2006 has produced about a one-fifth reduction in the number of court filings in children’s matters, meaning that an even smaller minority of parents actually end up litigating.15 The empirical evidence indicates that while most parents are able to agree (for a discussion of the notion of agreement, see 7.5 and  7.5.1.6) on arrangements fairly expeditiously, and can maintain agreement or re-negotiate agreements over the medium term, there are some smaller sub-groups of parents for whom agreement comes significantly less easily or not all.16 These sub-groups reflect a spectrum of complexity. More than 70 per cent of the parents interviewed for the Australian Institute of Family Studies Longitudinal Study of Separated Families (AIFS LSSF) Wave 1 and Survey of Recently Separated Parents (SRSP) 2012 (these studies were introduced in Chapter 5) indicated at the time of interview some 18 months after separation that their parenting arrangements were sorted out (72 per cent and 73.6 per cent).17 About a fifth in each survey (19–16 per cent AIFS LSSF Wave 1 and 19.2 per cent AIFS SRSP) indicated they were in the process of sorting out their arrangements and about a tenth said nothing was sorted (10 per cent AIFS LSSF Wave 1 and 7.2 per cent AIFS SRSP 2012). Most parents nominated ‘discussions’ with the other parent as the main pathway for sorting out their arrangements in each survey (65.8 per cent LSSF Wave 1 and 68.9 per cent SRSP 2012). Increasingly small proportions nominated main pathways consisting of counselling, mediation or family dispute resolution (FDR) (7.3 per cent LSSF W1 and 9.5 per cent SRSP 2012), lawyers (5.8 per cent LSSF Wave 1 and 6.5 per cent SRSP) and courts (2.8  per cent LSSF Wave 1 and 3.5 per cent SRSP 2012). Both surveys show that parents who reported a history of family violence or the presence of ongoing safety concerns were taking longer to sort out their arrangements and were more likely to be using one of the three formal pathways.18 AIFS SRSP findings show they were significantly less likely to express satisfaction with their experience.19 AIFS LSSF Wave 2 findings demonstrate very clearly that a sub-group of very complex parents—denoted by the presence of two or more of the indicators of complexity referred to above—repeatedly re-engage with services, including dispute resolution and courts, over the medium term.20 The view that people who can resolve issues and agree with little recourse to services or lawyers have higher levels of satisfaction with their arrangements is borne out by the empirical evidence. Data from AIFS SRSP 2012 and AIFS LSSF Wave 2 consistently show that satisfaction among parents with the pathway used to sort out parenting arrangements diminishes as greater intervention occurs.21 AIFS SRSP findings, for example, show that 93.0 per cent of parents for whom ‘discussions’ were the main pathway indicated 15 Allen Consulting Group, above n 11, notes there is little evidence of further reductions than the 22 per cent recorded by Kaspiew et al. above n 1, pp 76 and 305. 16 For a discussion on the experiences of a qualitative sample of parents in the first 12 months after separation, see Belinda Fehlberg, Christine Millward and Monica Campo, ‘Shared Post-separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247. 17 Kaspiew et al., 2009, above n 1, p 65; De Maio et al., 2013, above n 1, p 47. 18 Kaspiew et al., 2009, above n 1, pp 65, 77–8; De Maio et al., 2013, above n 1, pp 47, 50. 19 De Maio et al., 2013, above n 1, p 73. 20 Qu et al., 2014, above n 10, p 39. 21 Qu and Weston, 2010, above n 10, p 44; De Maio 2013, above n 1, p 75.

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that the ‘needs of the child were adequately considered’, compared with 85.7 per cent for ‘mediation/ FDR’, 73.2 per cent for lawyers and 64.0 per cent for courts (see 7.5).22 These data raise two noteworthy points. First, notwithstanding the differences in responses for the different pathways, it is important to acknowledge that majorities, albeit of differing proportions, of parents have positive responses to each of the pathways. Second, it is also clear that the more formal pathways are used by families with issues of greater complexity. When disputes are resolved by courts and, to a lesser extent, through lawyers, this means that at least one party’s position will not be validated in whole or part. The dynamics concerning making agreements about children and other post-separation issues, particularly property and child support, have only recently started to be the subject of empirical examination.23 Smyth and Rodgers refer to ‘strategic bargaining’ over parenting and financial issues and observe that ‘there is no doubt that some parents bargain over money and parenting time to make ends meet while others do so to maximise their own or their children’s interests—financial and/or emotional—in the context of a highly acrimonious inter-parental relationship’.24 The limited amount of relevant empirical evidence available suggests a wide range of behaviour among parents, with some, as noted, resolving issues in the areas of parenting, property and child support relatively quickly and with a minimal amount of intervention or difficulty, suggesting an ‘agreeing’ rather than ‘bargaining’ dynamic subsists among many parents.25 Other sub-groups, however, appear to have greater difficulty with parenting and financial arrangements and these sub-groups are more likely to experience issues such as family violence, safety concerns and negative inter-parental relationships, either together or separately.26 The emerging evidence then suggests a spectrum of agreement-making and disputing behaviour among separated parents. Research based on quantitative samples suggests that behaviour at the more negative end of this spectrum occurs among a minority proportion of parents, raising a concern that children’s needs and interests may be marginalised in these contexts. For example, 16  per  cent of mothers and 13 per cent of fathers out of the 72 per cent of parents in LSSF Wave 1 who had sorted out parenting arrangements indicated that their parenting arrangements affected their property negotiations.27 However, this may or may not suggest the presence of a dynamic linked to ‘strategic bargaining over’ these two issues, since the roles that each party has assumed during a relationship—caregiving, breadwinning, or shared responsibility for these issues—will effect financial entitlement when the relationship ends 22 De Maio et al., 2013, above n 1, p 76. 23 See, e.g., Kaspiew et al., 2009, above n 1, p 222; Belinda Fehlberg, Christine Millward and Monica Campo, ‘Post-Separation Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 176; Bruce Smyth and Bryan Rodgers, ‘Strategic Bargaining over Child Support and Parenting Time: A Critical Review of the Literature’ (2011) 25 Australian Journal of Family Law 210; Bruce Smyth, Bryan Rodgers, Vu Son, Liz Allen and Maria Vnuk, ‘Separated Parents’ Knowledge of How Changes in Parenting Time Can Affect Child Support Payments and Family Tax Benefit Splitting in Australia: A Pre-/PostReform Comparison’ (2012) 26 Australian Journal of Family Law 181; Rae Kaspiew, Matthew Gray, Ruth Weston, Lixia Qu and John De Maio, ‘Legislative Aspirations and Social Realities: Empirical Reflections on Australia’s 2006 Family Law Reforms’ (2011) 33Journal of Social Welfare and Family Law 397. 24 Smyth et al., 2012, above n 23, p 182. 25 Qu et al., 2014, above n 10, p 10. 26 Qu et al., 2014, above n 10, chapter 9. 27 Kaspiew et al., 2009, above n 1, p 222.

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(see further Chapters 10 and 13) and there is a clear link between caregiving responsibilities and the relative proportions of financial settlements.28 A connection between difficult relationship dynamics, including family violence, and difficult, protracted and unbalanced agreement-making behaviours are emerging from qualitative (Fehlberg and colleagues) and quantitative research (AIFS LSSF Wave 3, AIFS SRSP).29 The views of lawyers, who as we have seen are more likely to have parents at the more difficult end of the spectrum in their client base, confirm the existence of ‘strategic bargaining’ behaviours among some parents. Kaspiew and colleagues report the concerns expressed by lawyers and registrars that the 2006 shared parenting reforms had prompted some fathers in particular to seek shared parenting arrangements to maximise their property and financial entitlements, and some mothers to trade away such entitlements to retain majority care of the children. In relation to views on the motivations of child support payees and payers in seeking shared parenting arrangements, Kaspiew and colleagues report that a majority of lawyers (68 per  cent) indicated that they thought payers were seeking shared care to reduce child support and 49 per cent agreed that payees would oppose shared care to retain child support entitlement. 30 As explained further in Chapter 11, the child support formula applied to assess liability provides for a reduction in the amount payable for parents who have their children for at least 14 per cent of nights.31 In Kaspiew and colleagues’ study, family relationship sector professionals were less likely to indicate agreement that they saw these dynamics among their clients, but about half of those surveyed indicated these issues may be relevant for about a quarter or fewer of their clients, making little distinction between payees and payers.32 In the context of qualitative research on links between parenting and financial arrangements, Fehlberg and colleagues described a continuum of dynamics relating to ‘agreement’, including reported ‘consensual’ arrangements, ‘consent arrangements’, where one party had agreed to the proposal of the other, ‘compromise’ with each party giving ground on their optimum position and ‘coerced’ agreements.33 They observed that a matrix of factors that influenced where on the spectrum each agreement of the parents in the sample fell: ‘this appeared to depend on a complex mix of factors including the cost (both emotionally for parents and their children and financially) of not agreeing, the presence of violence or other controlling behaviour (which tended to negatively affect mothers), parental roles adopted during the relationship (which tended to negatively affect fathers) and feelings of guilt on the part of the parent who ended the relationship’.34 A further significant issue in the context of a consideration of agreement making and bargaining dynamics is the fact that post-separation parenting arrangements are inherently 28 29 30 31

Qu et al., 2014, above n 10, Table 6.14. Fehlberg et al., 2009, above n 16; De Maio et al., 2013, above n 1; Qu et al., 2013, above n 10. Kaspiew et al., 2009, above n 1, pp 222–7. Australian Government, Department of Human Services, Child Support Guide, ‘Basics of Care 2.2.1: Definitions Used to Describe Care for Child Support Assessments’, , 13 April 2014. 32 Kaspiew et al., 2009, above n 1, pp 222–3. 33 Fehlberg et al., 2009, above n 16. 34 ibid., 269.

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subject to change. Some of this change can be seen as child-centric—arising from the evolving needs of children as they grow and develop. Some is also parent-centric—arising from the social, economic and relationship status of parents over time. This point is well illustrated by the longitudinal findings of LSSF: the longitudinal data provided by LSSF show that parenting arrangements are dynamic, with significant proportions of parents reporting change and renegotiation over the three waves of data collected. At Wave 3, of the parents who had reported that their arrangements were sorted out in Wave 1, 60 per cent reported changes in arrangements. Close to a fifth of these parents reported a change resulting in increased time with the mother and 30 per cent reported increased time with the father.35

7.3 Participation of children and young people Historically, children were the property of their fathers, with no independent legal identity or capacity. This meant that paternal rights were absolute until children reached the age of majority and assumed an independent legal identity.36 Challenges to the supremacy of paternal rights developed through the second half the 19th century and were grounded in a child protection philosophy concerned to protect children from parental abuse, neglect and excessive corporal punishment.37 The basis for this movement was a concern for child ‘welfare’ and the justification for interference in the privacy of the family (initially by ‘child-saving’ organisations and then by state child protection authorities originally with an infrastructure based on church-auspiced organisations) was the need for some children to be protected from abuse and neglect occurring within their families.38 Thus, until about the 1980s the framing principles in legal discourses concerning children were dominated by welfare and protection paradigms. These paradigms were influential in elements of the original Family Law Act 1975 (Cth) (FLA) Part VII framework, which required courts to consider the ‘welfare’ of the child as the paramount consideration until 1995 when the terminology ‘best interests’ was adopted, as explained in Chapter 5. In the latter half of the 20th century, paradigms based on concepts of children as rights bearers, epitomised by the United Nations Convention on the Rights of the Child (CRC), have also become increasingly significant. In part, this is reflected in the 1995 legislative shift to the ‘best interests’ wording of the paramountcy principle. Another indication of this, at least at a symbolic level, was the addition in the 2012 amendments to the FLA of a provision specifying that an object of Part VII of the FLA was to give effect to CRC (section 60B(4)), discussed in Chapter 6. Recent years have seen much concern emerge about the extent to which Australia’s family law system centralises the interests of children rather than focusing on the concerns 35 Qu et al., 2014, above n 10, Table 5.8. 36 See, e.g., John Tobin, ‘Courts and the Construction of Childhood: A New Way of Thinking’, in Michael Freeman (ed.), Law and Childhood Studies (Current Legal Issues 14), Oxford University Press, Oxford, 2012, pp 55–74. 37 See, e.g., Michael Freeman, ‘Towards a Sociology of Children’s Rights’, in Freeman (ed.), ibid., p 30. For a discussion on the question of age as a determinant of legal competence, see Hedi Viterbo, ‘The Age of Conflict: Rethinking Childhood, Law, and Age through the Israeli-Palestinian Case’, in Freeman (ed.), ibid., pp 133–55. 38 See, e.g., Judith Bessant and Rob Watts, ‘Children and the Law: An Historical Overview’ in Geoff Monahan and Lisa Young (eds), Children and the Law in Australia, Lexis Nexis Butterworths, Chatswood, Australia, 2008.

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of adults. A significant theme in the Every Picture Report was the need to increase scope for child focus in Australia’s family law system. The report observed that: A real child focus is not yet a reality in the system or in the behaviour of separating families. Opportunities for children’s voices to be heard in the context of decisions that affect them are limited, both in the community and family setting and the court context.39

It made a range of recommendations intended to support the aim of improving the focus on children’s needs, including for better avenues to support child participation across the system. The concept of participation was introduced in the discussion on CRC in the Chapter 6. Article 12.1 of the CRC asserts the importance of children having the right to make their views known in judicial and administrative proceedings relevant to their care. Article 9 reinforces this principle setting out children’s right to participate in proceedings relevant to their care. Participation rights are relevant across a range of contexts, including in relation to decisions about education for example, in addition to the decisions that arise in the postseparation parenting context. Participation is defined in this way by UNICEF: Respecting children’s views means that such views should not be ignored; it does not mean that children’s opinions should be automatically endorsed. Expressing an opinion is not the same as taking a decision, but it implies the ability to influence decisions. A process of dialogue and exchange needs to be encouraged in which children assume increasing responsibilities and become active, tolerant and democratic. In such a process, adults must provide direction and guidance to children while considering their views in a manner consistent with the child’s age and maturity. Through this process, the child will gain an understanding of why particular options are followed, or why decisions are taken that might differ from the one he or she favoured.40

How participation occurs is thus seen to be influenced by the age and maturity of the child or young person and involves providing them with access to information about the decision and the opportunity to be consulted rather than necessarily being involved in making the actual decision. The dynamics of participation acquire particular significance when the issues involving parental separation are considered from the child’s perspective. Although experiences of separation are individual and varied, it is clear that for most children and young people this parent-focused event brings about enormous change across many areas of their lives: the people who live in their household, the way they spend their time, the financial and other resources available to them, possibly where they live and go to school. As postseparation life develops, many children and young people are faced with having to negotiate

39 House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements on the Event of Family Separation (‘Every Picture Report’ ), 2003, pp 25–6, available at , 28 April 2014. 40 UNICEF, The Right to Participation (Fact Sheet), UNICEF, Paris, , 28 April 2014, p [1].

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relationships with parents’ new partners,41 step-siblings or half-siblings. Negotiating these relationships—possibly across two sets of households—can become very complex and this process of adjustment and negotiation may well be lifelong. The impact that separation can have is summed up concisely in this excerpt from a study of the perspectives of young adults who experienced parental separation in their youth or childhood by United Kingdom (UK) researchers Jane Fortin, Joan Hunt and Lesley Scanlan: Throughout their recollections was a constant reminder that for many respondents, the most shocking event in their lives was their parents’ separation … This produced a profound change in their lives and in their responses to the outside world, school life, wider family members and friends. The fact that many parents had not warned their children about their impending separation and failed to explain to them the reasons for this created the perception that they were only incidental to their parents’ lives—that they were not important enough to warrant an explanation.42

A growing body of Australian and international research has examined the dynamics of participation in a range of family law contexts. The research establishes that children and young people mostly want to be consulted about decisions about their living arrangements and that such consultation can support their adjustment to the changes in their lives.43 It also demonstrates that the interests and needs of children and young people should be recognised as distinct from those of their parents, at the same time acknowledging that a range of interests and needs in families overlap and are, at times, interconnected.44 The participation needs of children and young people vary according to their individual characteristics, the nature of the decisions being made and the context in which they are being made. An important distinction that emerges from some studies focuses on the differences between consulting with children and young people—sometimes referred to as ‘recognition’—and making the decision.45 An aspect of this distinction revolves around the concept of influence as opposed to choice. The extent to which children and young people actually want to influence the decision being made depends on the nature of the decision itself and the circumstances of the child or young person.46 Some evidence suggests that children and young people feel more comfortable with ‘having a say’ on issues such 41 See Monica Campo, Belinda Fehlberg, Christine Millward and Rachel Carson, ‘Shared Parenting Time in Australia: Exploring Children’s Views’ (2012) 34 Journal of Social Welfare and Family Law 295 for recent Australian research that explores children’s experiences of parents re-partnering. 42 Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults Who Experienced Parental Separation in Their Youth, Sussex Law School, Brighton, 2012, p 315, , 28 April 2014. 43 Nicola Taylor, M Gallop and AB Smith, ‘Children and Young People’s Perspectives on Their Legal Representation’, in AB Smith, N Taylor and M Gallop (eds), Children’s Voices: Research, Policy and Practice, Pearson Education New Zealand, Auckland, 2000; Judy Cashmore, Patrick Parkinson, Ruth Weston, Roger Patulny, Gerry Redmond, Lixia Qu, Jenny Baster, Marianne Rajkovic, Tomasz Sitek, Ilan Katz, Shared Care Parenting Arrangements Since the 2006 Family Law Reforms: Report to the Australian Government Attorney-General’s Department, Social Policy Research Centre, University of New South Wales, Sydney, 2010; J. McIntosh, 2010, chapter 6, n 20, 4.3;. Campo et al., 2012, above n 41. 44 C Smart, B Neale, and A Wade, The Changing Experience of Childhood: Families and Divorce, Polity Press, Cambridge, 2001. 45 P Parkinson and J. Cashmore, The Voice of a Child in Family Law Disputes, Oxford University Press, Sydney, 2008. 46 See, e.g., Rachel Birnbaum, Nicholas Bala and Francine Cyr, ‘Children’s Experiences with Family Justice Professionals in Ontario and Ohio’ (2011) 25 International Journal of Law, Policy and the Family 398. For a discussion on the differences between children’s ‘wishes’ and ‘views’, see Alan Campbell, ‘I Wish the Views Were Clearer: Children’s Wishes and Views in Australian Family Law’ (2013) 38 Children Australia 184.

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as when and how much contact to have with a non-resident parent, but are reticent to exercise choice in determining the parent they are to live with.47 Other studies suggest that some children and young people may experience considerable ambivalence in ‘having a say’ and that processes and approaches to participation need to be capable of supporting this.48 Therefore such literature points to participation needing to be flexible across contexts and over time and for sensitive, informed negotiations about participation choices with each child and young person. In Australia, the picture that emerges from various studies is that opportunities for meaningful participation in the formal parts of the family law system are limited and that professional approaches to and discourses about participation lack a coherent underlying philosophy.49 Some other research suggests that the processes in families, in contrast, are favourable towards supporting adolescents (this question has not been examined in relation to children) in ‘having a say’. Australian research on the experiences of adolescents whose parents separated after the 2006 family law reforms found that most of the 623 participants (aged between 12 and 14) were in arrangements consistent with what they wanted.50 The majority (70 per cent) said they had had a say in the decision about their living arrangements, but a slightly smaller proportion said they actually wanted a say (63 per cent). Having a say in the decision was associated with markedly more adolescents in the primary care of the father (86 per cent), compared with those who lived with their mother (65 per cent) and with both parents equally (68 per cent).51 The majority of adolescents indicated that the way they had had a say in their living arrangements was informally through ‘talking it over with Mum and/or Dad’ (90 per cent). Just over a quarter indicated they had spoken to a counsellor or mediator about who they would live with (28 per cent).52 These data, particularly the finding that a substantial minority of adolescents did not affirm that they wanted a say, suggest that experiences in this context vary, and the conditions under which ‘having a say’ is construed positively by adolescents differ. The report’s authors, Jodie Lodge and Michael Alexander, noted that some ‘adolescents wished to avoid getting involved, perhaps to avoid having to choose between parents’.53 This suggests that whether having a say is positive, negative or ambiguous is likely to depend on the quality of the relationships the adolescent has with each parent and that parent’s capacity to understand and respect the views of the adolescent.54 It’s likely that all of these issues are particularly complex in matters involving family violence, child safety or poor 47 Fortin et al., 2012, above n 42. 48 Robyn Fitzgerald and Anne Graham, ‘“Something Amazing I Guess”: Children’s Views on Having a Say about Supervised Contact’ (2011) 64 Australian Social Work 487, 496. 49 Kaspiew et al., 2013, above n 10; Fitzgerald and Graham, 2011, ibid; Anne Graham and Robyn Fitzgerald, ‘Taking Account of the To and Fro’ of Children’s Experiences in Family Law’ (2006) 31 Children Australia, 30; Anne Graham and Robyn Fitzgerald, ‘Exploring the Promises and Possibilities for Children’s Participation in Family Relationship Centres’ (2010) 84 Family Matters 53; Nicola Ross, The Hidden Child: How Lawyers See Children in Child Representation, PhD Thesis, University of Sydney, 2012. 50 Jodie Lodge and Michael Alexander, Views of Adolescents in Separated Families: A Study of Adolescents Experiences After the 2006 Reforms to the Family Law System, Australian Institute of Family Studies Melbourne, 2010. 51 ibid. This is a significant finding, but it is unclear how the underlying dynamics should be interpreted. 52 ibid., p 26. 53 ibid., p 67. 54 Carol Smart, ‘Children and the Transformation of Family Law’, in J Dewar and S Parker (eds), Family Law: Processes, Practices and Pressures, Hart Publishing, Portland, 2003, p 237.

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inter-parental relationships. These are the contexts in which formal engagement between services (FDR, lawyers and courts) and children and young people is most likely to occur. Some research suggests that in these contexts children’s desire for participation is greater than in circumstances where family relationships are less complicated.55 An emerging body of research indicates that in such contexts the imperatives for providing children and young people with opportunities to be consulted are significant, as the children and young people themselves are the most direct source of information about what is happening in their lives (see further 7.5.1.4 and 7.6.3). At the same time, in circumstances where a child or young person may be experiencing family violence or subjected to abuse, processes for consultation need to be geared to ensuring that the child is protected from any ramifications that may occur within their families when disclosures about these issues are made. Two of the main discourses about post-separation family life have conceptualised children  in particular ways: either as vulnerable and need of protection (the welfare discourse) or as ‘bearers of rights’ (the rights discourse). Increasingly, research and theory about children and young people are developing alternative ways of conceptualising children’s agency, arguing that neither a rights-based nor a welfare-based approach adequately captures the ways in which children’s engagement should be configured. Based on their interviews with children, and drawing on a wider body of literature, Carol Smart, Bren Neale and Amanda Wade have developed a more subtle vision of ‘children’s citizenship’, by which is meant children’s active participation in life, and particularly in family life.56 They reject the idea that children’s citizenship depends upon their recognition as ‘autonomous legal subjects’ and argue for recognition of interdependence between adults and children.57 Critical is their finding that ‘what children seem to want is social recognition, respect and inclusion rather than simply legal rights’.58 Smart and colleagues do not argue ‘against children’s rights’, but for ‘rights based more on an ethic of care than simply on an ethic of justice’.59 Thus they build the notion of ‘citizenship-in-context’, which is different from ‘partial citizenship’ but recognises that, while citizenship may have a different meaning for children, it must be recognised and practised.60 The body of research on child participation provides no easy answers, but reinforces the need for parents to listen to children, and for policy makers and service providers to help parents to do this. More specifically, it underlines the imperatives for the formal parts of the system to provide opportunities for children to express their views and needs. Processes for engaging children and young people in FDR and court proceedings are discussed in the forthcoming sections. 55 For a discussion on participation in cases involving family violence see, Kaspiew et al., 2013, above n 10; Parkinson and Cashmore, 2008, above n 45; Graham and Fitzgerald, 2010, above n 49; Kay Tisdall and Fiona Morrison, ‘Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences’, in Freeman (ed.), above n 37, pp 156–189; Smart et al., above n 44. 56 Smart et al., 2001, above n 44, p 121. 57 ibid., p 108. 58 ibid., p 109. 59 ibid., pp 108–9. 60 ibid., p 110.

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7.4 Family Relationship Centres and other elements of the system The establishment of 65 Federal Government-funded Family Relationship Centres (FRCs) around Australia was a core element of the 2006 family law reforms. The stated aim of introducing these centres was to provide ‘a source of information for families at all stages, including people starting relationships, those wanting to make their relationships stronger, those having relationship difficulties and those affected when families separate’.61 As this statement indicates, the charter of the centres encompasses assistance for intact and separated families, although their greater focus is the latter. For separated families, this assistance includes advice, referral, FDR and a range of services to help parents and children adjust to separation. The proposal to develop these centres developed out of the thinking that occurred after the Every Picture Report was released and also took account of some of the measures recommended in the Pathways Report. Each of these reports concluded that family law clients felt confused about where to go, and recommended streamlining the system in order to provide an ‘integrated family law system that is flexible and builds individual and community capacity’.62 The Pathways Report did not recommend a single entry point, but rather that gatekeepers to the system ‘commit to a systemwide approach to assessment to assist family members newly entering the family law system, and to review the assistance required by those re-entering the family law system’.63 In contrast, the Every Picture Report did recommend a single entry point, which would be a new agency that would have ‘close administrative and operational links’ with a proposed new Families Tribunal with decisionmaking power exercised by a multidisciplinary panel. As consideration of the report’s recommendations developed, the Howard Coalition Federal Government moved away from the idea of a Families Tribunal, for a range of reasons, including concerns about whether the Constitution would support decisionmaking power being exercised by such a Tribunal.64 The idea for the FRCs came out of the thinking and discussion spurred by the Families Tribunal idea, but the function of these centres is substantially different from those suggested for the Families Tribunal.65 Sue Pidgeon describes FRCs in this way: FRCs were an entirely new sort of service. While components of their role were familiar—information, referral, advice, education and mediation—their intended role in the family law system as an alternative to the courts and as a doorway to the wider service system was much broader than any existing services.66

61 Family Relationships Online, Fact Sheet Five: Family Relationship Centres, 2006, available at , Information Kit, Fact Sheets, Family Relationship Centres, at 15 June 2007. 62 Pathways Report, above n 6, Terms of Reference, p v. 63 ibid., p 32. 64 Patrick Parkinson, ‘The Idea of Family Relationship Centres in Australia’ (2013) 51 Family Court Review 195. 65 ibid. 66 Sue Pidgeon, ‘From Policy to Implementation—How Family Relationship Centres Became a Reality’ (2013) 51 Family Court Review 224, 227.

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Patrick Parkinson notes that the vision for the FRCs entailed branding them in a way that would mean they became a highly visible and accessible entry point to the system for families experiencing relationship difficulties and ‘would become culturally accepted in the same way that other public services are accepted’.67 Alongside FRCs, two other significant services aimed at providing families with ready access to information and referrals were established. Family Relationships Advice Line is a free telephone-based service incorporating a free Legal Advice Service and the Telephone and Online Dispute Resolution Service.68 Family Relationships Online provides internet-based information and referral. A further recent development has been the expansion of a measure intended to support collaboration among family law system agencies and other agencies with overlapping areas of operation, including human services agencies. In 2010–11, the Attorney-General’s Department auspiced the expansion of Family Law Pathways Networks (FLPN), some of which had been operating on an unfunded basis for more than 10 years.69 They are a measure intended to support the development of relationships between different kinds of services and professionals in the family law system.70 An evaluation of the 36 FLPN in 2012 found they played an important role in providing cross-sectoral professional development, information exchange and networking opportunities. It also noted some gaps in the kinds of agencies involved in the networks, highlighting a need for increased engagement with Aboriginal and Torres Strait Islander services and drug and alcohol services.71 The 65 FRCs, located in urban and regional centres across Australia, were rolled out over a three-year period after a competitive tender process which saw a range of different community-based relationship support services selected to run the centres. Among the non-government organisations involved in running the centres are Unitingcare, Relationships Australia, Anglicare and Interelate Family Centres, which have a substantial history in providing a variety of family services. The evaluation of the 2006 family law reforms highlighted increasing client numbers as the FRCs capacity expanded in the period covered,72 and largely positive reports of experiences with FRCs from clients though the findings also suggest limited satisfaction with the extent of the service provided.73 The centres have significant flexibility in determining the mix of services they offer as they are encouraged to tailor their approaches to those needed to their local community. This has meant that the centres have scope for innovation and flexibility and this is evidenced by the development in some centres of programs that are focused on meeting the needs of Aboriginal and Torres Strait Islander clients and clients from culturally and linguistically 67 Parkinson, 2013, above n 64, p 200. 68 For an overview of these services see for example, Thea Brown, Becky Batagol, Tania Sourdin, Family Support Program Literature Review, Monash University, Melbourne, 2012; also Kaspiew et al. 2009, above n 1. For information about online dispute resolution see, e.g., M Thomson, ‘Alternative Modes of Delivery for Family Dispute Resolution: The Telephone Dispute Resolution Service and the Online FDR Project’ (2011) 17 Journal of Family Studies 253. 69 Encompass Family and Community Pty Ltd, Independent Review of the Family Law Pathways Networks, 2012, , 28 April 2014. 70 ibid. 71 ibid. 72 Kaspiew et al., 2009, above n 1, section 3.1.2, p 38. 73 ibid., section 3.6.2, p 60.

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diverse communities.74 However, a report by the Australian National Audit Office (ANAO) suggested some disadvantages to this level of flexibility, observing an ‘increased risk that individual centres may concentrate on specific components of the services rather than the achievement of the overall objectives of the initiative’.75 In the eight years since the establishment of the centres, tighter performance-monitoring strategies have been implemented, for this and other reasons identified in the ANAO report. There have been some shifts in the funding of services and also shifts in policy. Initially, the centres were funded to provide three free hours of dispute resolution to families but in July 2011 this was reduced to one free hour, with further services being provided on a subsidised basis depending on means testing.76 A further significant shift has been in policy concerning how FRCs relate to the legal sector. Initially, a policy intent reflective of a desire to move away from legal mechanisms as a means of addressing parenting disputes saw the operating framework specify that lawyers were not permitted in FRCs with clients.77 In 2009, a shift away from this position saw FRCs being funded to partner with publicly funded legal organisations (legal aid commissions and community legal centres) to provide legal information and advice to FRC clients and legal information to FRC staff. What has also become evident in the years since the inception of the FRCs is that complex families, including those affected by family violence and child abuse, make up a significant proportion of their clientele. This has seen an increased focus on ensuring FRC policies, processes and staff are equipped to deal with family violence and child safety issues, in light of the significant extent to which these are present in their caseload.78 Screening and risk assessment are core elements of their work. The focus in FRCs is on children’s issues, but they can assist with property matters in that context if their staff have the relevant expertise— although they ‘should avoid undertaking long and complex work’ and consider referring where this is more appropriate (see also Chapter 12).79 Evidence of recognition of the need for low-cost information and assistance for property and financial matters is emerging but concern about the level of expertise in FRCs in this regard is also evident.80 74 See, e.g., Family Law Council, Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds, Attorney-General’s Department, Canberra, 2012; Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, Attorney-General’s Department, Canberra, 2012; Lola Akin Ojelabi, Thomas Fisher, Helen Cleak, Alikki Vernon and Nikola Balvin, ‘A Cultural Assessment of Family Dispute Resolution: Findings about Access, Retention and Outcomes from the Evaluation of a Family Relationship Centre’ (2011) 17 Journal of Family Studies 220; Susan Armstrong, ‘Encouraging Conversations about Culture: Supporting Culturally Responsive Family Dispute Resolution’ (2011) 17 Journal of Family Studies 233. 75 Australian National Audit Office (ANAO), Implementation of the Family Relationship Centres Initiative Audit Report No 1, 2010–2011, Australian National Audit Office, Canberra, 2010–11, section 4.25, p 72, , 28 April 2014. 76 ANAO, ibid., section 12, p 17. 77 Attorney-General’s Department, Operational Framework for Family Relationship Centres, Attorney-General’s Department, Canberra, 2007; McClelland 2009, above n 10. 78 ANAO, 2010–11, above n 70; Australian Law Reform Commission 2010, above n 10, section 21.44; Parkinson 2013, above n 64. In 2013, Allen Consulting Group above n 11 noted ongoing concerns about the efficacy of approaches in some FRSs, p 52. 79 Commonwealth of Australia, Attorney-General’s Department and Department of Families, Community Services and Indigenous Affairs, Operational Framework for Family Relationship Centres, September 2006. 80 Moloney et.al., 2011, above n 12; Belinda Fehlberg, Bruce Smyth and Kim Fraser, ‘Pre-Filing Family Dispute Resolution for Financial Disputes: Putting the Cart Before the Horse? (2010) 16 Journal of Family Studies 197; Georgina Dimopoulos, ‘Gateways, Gatekeepers or Guiding Hands? The Relationship between Family Relationship Centres and Legal Practitioners in Case Management and the Court Process’ (2010) 24 Australian Journal of Family Law 176.

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A number of challenges surrounding the implementation of the FRCs have been documented. The report on FRCs by the ANAO (2010) noted that the rapidity of the establishment of the FRCs meant that some ‘notable gaps’ in the selection, implementation and ongoing administration and performance monitoring phases resulted in a ‘limited ability’ to ‘assess the success, or otherwise of the FRC network in achieving its objectives and delivering a value-for-money-outcome’.81 A new performance-monitoring framework has since been developed. Other logistic and operational issues surrounding the development of a workforce skilled to operate in relationship support services in the context of a rapid increase in demand for this kind of workforce due to the establishment of a substantial number of new services have been documented.82 There were also questions surrounding the extent to which FRCs could be integrated into the existing service structure and how relationships between agencies and practitioners could be established to ensure families are directed into the services that best meet their needs, especially in light of the complex features of their client base.83 Recent examinations of programs involving collaborations between FRCs and other agencies indicate that progress has been made in this area, but there are ongoing challenges.84 An evaluation of a pilot program in which the FRC in Geelong, Victoria, partnered with the Geelong Registry of the Federal Circuit Court of Australia (FCCoA) to facilitate the provision of information about FDR and other relationship support services to FCCoA personnel (including judges) and court clients highlighted ‘the potential for FRCs to play a valuable role in case management by establishing a physical presence at court, consulting with legal practitioners and remaining engaged with both the court and clients throughout the FDR and court process’.85 However, the evaluation also highlighted areas of tension between legal and court practice and FRC practice. These included concerns on the part of lawyers in relation to assessment made of the suitability of some matters for FDR, the adequacy of family violence screening approaches in FRCs and an ambiguity in inter-professional and client-based understandings of the role FRCs have in providing legal information as distinct from legal advice. The former is general in nature and within the scope of FRC operation but the latter is specific to the client’s circumstances and is the preserve of lawyers. However, lawyers particularly expressed concern about blurred understandings among clients in this regard and the implications of this for their decision about settling or pursuing court determinations of post-separation parenting and financial matters.86 In light of these findings, concerns raised by the ANAO about the implications of FRCs providing services to high-risk clients rather than referring them to other services or courts remain pertinent. The risks identified included producing unworkable parenting 81 82 83 84 85 86

ANAO, above n 75, p 18. Parkinson, 2013, above n 64; Pidgeon 2012, above n 66. Kaspiew et al., 2009, above n 1, Chapters 3 and 5. Moloney et al., 2011, above n 12; Dimopoulos, 2010, above n 80. Dimopoulos, 2010, above n 80, p 213. ibid., pp 204–6. For a discussion of inter-professional practice pre-dating the 2006 reforms, see Helen Rhoades, Ann Sanson and Hilary Astor with Rae Kaspiew, Working on Their Relationships: A Study of Inter-Professional Practices in a Changing Family Law System, University of Melbourne, 2006.

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agreements, delaying access to court and exposing clients and staff to a risk of harm.87 Reflecting on these statements, Moloney and colleagues note that ‘[s]uch statements highlight the difficult judgement calls that must be made on a daily basis by FRC staff, and the tensions that exist in how best to meet [FRC] objectives’.88 These authors also articulate the view that ‘there is a risk associated with placing too much emphasis on mediation and relationship-focussed processes in cases where families exhibit significant levels of dysfunctional behaviours. Even then, the “bottom line” in a percentage of cases must be that of enforceable judicial decisions’.89

7.5 Alternative Dispute Resolution in family law: Development and debates In the past 30 or so years, efforts to support non-court-based mechanisms for resolving disputes across a range of private and, more latterly, public law areas have gathered pace.90 The term ‘Alternative Dispute Resolution’ (ADR) covers a broad range of approaches to resolving disputes without judicial determination but with the assistance of an independent practitioner.91 Formally, it is distinguishable from negotiation, which is a party–party process (see further below),92 because of the involvement of the independent practitioner. Multiple policy, fiscal and philosophical concerns have contributed to increasing policy support for these developments, including a need to find less costly ways of dealing with disputes from both the perspective of public funding for legal infrastructure and the desire to relieve cost burdens on disputants.93 From a broader standpoint, a philosophy based on support for conflict resolution through problem solving and negotiation, rather than adversarial litigation, has also underpinned these developments.94 Part of this philosophy asserts that where parties have had the opportunity to agree on outcomes—rather than having them imposed by a decision maker—these outcomes are fairer and more sustainable.95 A central concern in ADR processes is the need to create a ‘level playing field’ so that any ‘bargain’ or ‘agreement’ reached arises out of genuine agreement rather than coercion or other power imbalances.96 In practice, ADR (and negotiation more generally) may be a process of compromise driven by the strengths and weaknesses of each party’s claims in any 87 ANAO, above n 75, p 48. 88 Moloney et al., 2013, above n 12, p 245. 89 ibid. 90 ALRC 2010, above n 10; Michael King, Arie Freiberg, Backy Batagol and Ross Hyams, Non-Adversarial Justice, The Federation Press, Annadale, 2009; Hilary Astor and Christine Chinkin, Dispute Resolution in Australia, Butterworths, Sydney, 1992. 91 See, e.g., Australian Government, Productivity Commission, Access to Justice Arrangements, Productivity Commission Draft Report, Productivity Commission, Canberra, 2014, section 8.1, p 250. 92 A useful overview of negotiation in the family law context is contained in Ian Serisier and Tom Altobelli, Practising Family Law, 3rd edn, Lexis Nexis Butterworths, Australia, 2012, p 36. 93 Productivity Commission 2014, above n 91, section 8.2. 94 See, e.g., King et al., above n 90, pp 14–15. 95 ibid. 96 See, e.g., Rachael Field, ‘Using the Feminist Critique of Mediation to Explore “The Good, the Bad and the Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20 Australian Journal of Family Law 45.

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particular context. Such strengths and weaknesses may have diverse sources. From a legal perspective, they may arise from ambiguity or lack of ambiguity in legislation and case law in any given area or the evidentiary issues either party may encounter in establishing a claim in court. A core concept in this area is ‘bargaining in the shadow of the law’,97 which expresses the potential relationship between negotiated outcomes and legal issues and frameworks. Other issues are also relevant to bargaining dynamics. For example, one party may have access to better legal advice, representation and advocacy than the other.98 Either or both parties may have an interest in ensuring the matters relevant to the dispute, or moral or cultural issues that may be relevant to the dispute itself or the position or conduct of the parties, do not become public. There is a considerable body of theory on the dynamics of bargaining, including from a feminist perspective, that examines the dynamics of power in various bargaining contexts.99 The questions of gender, inequality and power are central to discussions about whether ADR can operate positively or negatively for the interests of women from a feminist perspective. Concern about the gendered dynamics of power and the capacity of women to negotiate equally from a position of inequality are persistent themes in the debates.100 In this context, the notion of equality has legal, political, social, economic and personal dimensions. On these dimensions many, if not all, women have less power, influence or entitlement than men, leading some theorists to question whether this creates inherent barriers to fair outcomes in ADR. An additional significant element in mediation processes and outcomes is that these processes are private, in contrast to the transparent and public nature of court proceedings, raising the possibility that ‘decisions about issues of importance to women could be made according to norms which are unarticulated and unable to be challenged’.101 Yet there is also a body of thought reflecting a strand of feminist thinking based on relational ethics and arising out of Carol Gilligan’s theory of an ‘ethic of care’102 as a framework for understanding the needs and interests of women. This perspective suggests that ADR-based approaches to dispute resolution, particularly mediation, have greater capacity to support the interests of women than adversarial mechanisms because they ‘support dialogue and emphasise relationships’.103 In canvassing the positive aspects of

 97 This foundational metaphor comes from R Mnookin and L Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. A large body of theory and research has engaged with the extent to which this metaphor is apt: see, e.g., John Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 The Modern Law Review 467.  98 See, e.g., Productivity Commission, above n 91, section 8.2.  99 See, e.g., Austin Sarat and William Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process, Oxford University Press, New York, 1995; Katalien Bollen, Alain Laurent Verbeke and Martin Euwema, ‘Money or Children’? Power Sources in Divorce Mediation’ (2013) 19 Journal of Family Studies 159; Rachael Field, ‘Using the Feminist Critique of Mediation to Explore “The Good, the Bad and the Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20 Australian Journal of Family Law 45; John Wade, ‘Forms of Power in Family Mediation and Negotiation’ (1994) 8 Australian Journal of Family Law 40. 100 Astor and Chinkin, 1992, above n 90, pp 92–5 and 109–11. 101 ibid, p 112. 102 Carol Gilligan, In a Different Voice. Psychological Theory and Women’s Development, Harvard University Press, Cambridge Mass, 1982. 103 Astor and Chinkin, 1992, above n 90, p 22.

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mediation from a feminist perspective, Rachael Field has noted that mediation has the potential to be empowering for women: mediation can be said to reject gendered notions of power which advantage and privilege men. This is partly a result of the fact that party self-determination in mediation is uniquely relational in nature. That is, party self-determination in mediation requires party connection, co-operation, collaboration and consensus. The rights and entitlements of individuals are not emphasised … Rather in mediation the parties are supported in reaching an integrated solution to their dispute that responds to each party’s concerns, needs and interests …’104

Along with other analysts, Field has raised concerns about the application of FDR in family violence cases and these are considered further in 7.5.1.6. In the family law area, the aim of settling matters and avoiding court proceedings has been part of the philosophy of the Family Court of Australia (FCoA) since inception, reflecting a view of the importance of preserving family relationships and reducing rather than exacerbating the harm children are exposed to as a result of ongoing conflict (Chapter  2).105 As part of the vision for a ‘helping court’, social scientists—originally called ‘court counsellors’—had an important role in providing what were then known as counselling and conciliation services to court users to assist and encourage them to settle their matters without proceedings to trial.106 Moloney and McIntosh explain that mediation in family law disputes developed out of the ‘conferences’ conducted by Family Court counsellors, noting that from ‘its beginnings in Australia in the early 1980s, family mediation was greeted with scepticism and was intensely scrutinised’.107 FCoA counsellors also provided reports on the family dynamics of a matter to the court, when such ‘welfare reports’ were ordered by judges. The involvement of social scientists—who had a social work or psychology background—underscores the centrality both of agreement and social science knowledge to the functioning of the FCoA from the outset. Over time, the legal and organisational dynamics surrounding mediation in family law have shifted (see also 3.3.2). From a legal perspective, explicit legislative statements about the centrality of mediated outcomes in family law matters have become stronger. In 1995, a range of amendments was introduced to support the expansion of community-based mediation services for parenting matters, to strengthen the normative legislative messages in favour of agreement rather than disputation and to introduce a legislative structure for parenting plans to enshrine agreement as an alternative to consent orders (see further 7.5.1.5).108 Even stronger legislative statements in support of out of court settlement for parenting matters were enacted as part of the 2006 family law amendments and these are detailed in 7.5.1. From an organisational perspective, what were known as conciliation 104 Rachel Field, ‘FDR and Victims of Family Violence: Ensuring a Safe Process and Outcomes’ (2010) 21 Australasian Dispute Resolution Journal, 185 (electronic version accessed). 105 Helen Rhoades, ‘Children’s Needs and Gender Wars: The Paradox of Parenting Law Reform’ (2010) 24 Australian Journal of Family Law 296; Moloney et al., 2013, above n 12. 106 See, e.g., Sarat and Felstiner, 1995, above n 99; Bollen et al., above n 99; Field, 2006, above n 99; Wade, above n 99. 107 Lawrie Moloney and Jennifer McIntosh, ‘Child Responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71. 108 House of Representatives, Explanatory Memorandum to the Family Law Reform Bill 1994, Commonwealth Parliament, Canberra 1994, par 155.

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or counselling functions—now described as ‘family dispute resolution’—are no longer attached to the court. They are instead part of the family law infrastructure spread across a range of organisations, including community organisations, legal aid commissions and privately based mediation services that operate on a fee for service basis.109 The 2006 family law reforms accelerated a pre-existing policy direction, with the establishment of 65 FRCs whose services include free or subsidised FDR. Now, most family dispute resolution is provided in FRCs.110 In the context of these shifts, the way that social scientists support the work of the family law courts has also shifted. Family consultants are attached to each of three courts, either as employees or on a sub-contracted basis, to provide what are now known as family reports, as well as having a role in making initial assessments of families (see further below 7.6). Although these reports are recognised to be influential in bringing about settlement in some circumstances, this is not considered to be their primary role:111 they now have an essentially forensic function to inform the court about the circumstances of the family. The legislative changes in 2006 raised conceptual debate about the extent to which parties could be compelled to use what is now known as family dispute resolution (FDR). For example, while generally supportive of the move towards ‘compulsory’ private dispute resolution, the National Alternative Dispute Resolution Advisory Council registered concerns about the effectiveness and acceptance of mediation if it became ‘merely a procedural step which parties undertake’, and suggested ‘that there be flexibility in any requirement to use mediation, so that the appropriate intervention is used in the right case and at the right point in time’.112 Other commentators have raised concerns about the extent to which a process based on the concept of voluntary agreement could be mandated, echoing longstanding reservations about the concept of mandatory mediation.113 The way ‘compulsory’ FDR has unfolded is considered next.

7.5.1 Family dispute resolution This section provides an overview of the legislative framework that governs family dispute resolution and how FDR operates in practice. After canvassing the legislative definition, the provisions concerning what matters may be dealt with in FDR and the obligations of family dispute resolution practitioners (FDRPs), empirical evidence and practice analysis concerning the application of FDR is considered. The discussion in this section establishes that the way the use and application of FDR has evolved in practice is somewhat complex in that many families affected by family violence and safety concerns use it. This poses significant challenges in applying safe processes consistent with the neutral underlying philosophy of mediation.114 109 110 111 112

For example, Moloney et al., 2013, above n 12. ibid., p 243. See, e.g., Federal Circuit Court, Annual Report 2012–13, Federal Circuit Court of Australian, Canberra, 2013. National Alternative Dispute Resolution Advisory Council, Report on the Inquiry into Child Custody Arrangements, 2005, p 2. 113 Family Law Council, Mediation, Australian Government Publishing Service, Canberra, 1992, [4.11]. 114 For an analysis of this issue see Donna Cooper and Rachael Field, ‘The Family Dispute Resolution of Parenting Matters in Australia: An Analysis of the Notion of an ‘Independent Practitioner’’ (2008) 8 Queensland University of Technology Law and Justice Journal 158.

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As noted above, most FDR services are provided in FRCs. FDR is also provided by non-FRC family relationship support services funded by the Federal Government (some of which also auspice FRCs, for example Relationships Australia), community mediation centres and FDR practitioners who work in private practice and offer a fee-based service. A conferencing process allied to FDR is provided by legal aid commissions, which apply lawyer-assisted models when one party qualifies for legal aid assistance.115 There are registration and accreditation requirements for FDR practitioners, who come from a variety of backgrounds, including social science (psychology or social work), law or education.116 Training requirements for FRC staff are set out in the Family Relationship Services Program approval requirements. These provide that FRC staff have an appropriate degree, diploma or other qualification (for example, in behavioural or social sciences or education) and demonstrate an appropriate level of competence in an assessment by the organisation. The FLA requires FDR practitioners, family counsellors, and other family service providers to be accredited when performing services under the Act (section 10G). The process and requirements for accreditation as an FDR practitioner are set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. These regulations set out criteria for accreditation based on qualifications (including entitlement to a Vocational Graduate Diploma of Family Dispute Resolution) (Regulation 5) and suitability (including not being prohibited from working with children by law (Regulation 6(1)(a)) and not having criminal convictions for personal violence or sex offences (including against children) (Regulation 6(2)). The 2006 reforms introduced new terminology for what had previously been known as primary dispute resolution117 in the FLA, or mediation in common parlance, and new legislative imperatives for using FDR. ‘Family dispute resolution’, as defined in FLA section 10F, is a very broad, inclusive term: A process (other than a judicial process): (a)

(b)

in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process.

This very wide definition is capable of encompassing a range of processes, from fairly ‘light touch’ assistance of a counselling nature to more formal processes including lawyerassisted FDR. A critical aspect of the FDR process is the impartiality of the FDRP, who is neither an advisor nor decision maker118 but rather an actor who supports the parties to make their own decisions in the process.119 There are several steps in the lead up to FDR, Linda Fisher and Mieke Brandon, Mediating with Families, 3rd edn, Lawbook Company, Sydney, 2012, p 43. As at 1 January 2014, the numbers of registered practitioners stood at 1,699. FLA s14E. Prior to the 2006 amendments. For a discussion on impartiality, see National Alternative Dispute Resolution Advisory Council (NADRAC) ADR Terminology: A Discussion Paper, NADRAC, Canberra, 2002, p 11. 119 Fisher and Brandon, above n 115, p 24. There is a significant body of theory that engages with the mediator’s role. See, e.g., Cooper and Field, above n 114. 115 116 117 118

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including screening and intake sessions120 (sometimes with an FDR practitioner or another appropriately qualified professional) and preparation sessions. These focus on providing information about the process, clarifying what issues are to be subject to mediation and establishing and moderating client expectations. Prior to FDR starting, the FDRP makes an assessment of each party’s capacity to engage with the process and considers whether there are factors, including, potentially, a history of family violence, which may mean that this capacity is not present. Broadly, ‘capacity’ refers to the person’s ability to engage in the process as a rational actor on an equal footing with the other party. Apart from one of the most common issues—power imbalance and fear— that can be the consequence of family violence, other issues relevant to capacity include the ability to make compromises, to see the other persons’ viewpoint and to consider the interests of those affected by the agreements made in FDR. The presence of some kinds of mental ill-health may compromise capacity. The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Regulation 25) require FDRPs to consider whether the ability of ‘any party to negotiate freely’ is affected by ‘(a) a history of family violence (if any) among the parties; (b) the likely safety of the parties; (c) the equality of bargaining power among the parties; (d) the risk that a child may suffer abuse; (e) the emotional, psychological and physical health of the parties; (f ) any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution’. The process of assessing parties’ capacity to engage productively in the FDR process does not end with intake: it is an ongoing responsibility as mediation is a dynamic process in which emotional states, power balances and the way that issues are understood may shift.121 There are a variety of FDR models, reflecting varying underlying philosophies and approaches. In some instances, clients may be advised or supported to obtain legal advice prior to FDR and, in some models, legal advice is an essential part of the process. FDR (and mediation more generally) is seen in some approaches as a quasi-legal process. In an alternative approach, it is seen more as a counselling process in which legal concepts and notions are unhelpful and have the potential to impede the clients’ capacity to focus on the interests of their children. Fisher and Brandon identify a number of different mediation philosophies, including an approach based on problem solving, a transformative approach, which is intended to change the way parties interact, and a therapeutic approach, again intended to improve relationships. In practice, many mediators ‘prefer an eclectic approach’ that allows them to tailor the process to the clients’ needs.122 As described in more depth later, FDR processes may be adapted to meet particular circumstances. Where family violence has occurred, for example, a ‘shuttle’ approach, where the parties are not in the same room but the FDRP moves between them, may be applied. There are also varied ways in which the process deals with children (see further below). As noted earlier, models geared 120 Australian Government, Attorney-General’s Department, Information for Family Dispute Resolution Providers, Screening and Assessment Framework (14 August 2006), available at , 28 April 2014; Family Law (Family Dispute Resolution Practitioners) Regulations 2008, Family Dispute Resolution Practitioners—Assessment of Family Dispute Resolution Suitability Part 25, s 1(a)(b). 121 Fisher and Brandon, above n 115, p 270. 122 ibid., p 35.

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at meeting the needs of particular cultural groups, including Aboriginal and Torres Strait Islander peoples123 and people from culturally and linguistically diverse backgrounds124 have also been developed.

7.5.1.1 Confidentiality, admissibility and practitioner obligations Like ‘primary dispute resolution’, as it was termed prior to July 2006, FDR is confidential (section 10H), and evidence of anything said by or in the company of a FDR practitioner in FDR is not admissible in any court or any proceedings (section 10J). Both of these elements are subject to exceptions (section 10H(4)–(7) and section 10J(2)–(3)). In relation to confidentiality, there are a number of exceptions where the FDR practitioner reasonably believes the disclosure is necessary, for purposes ranging from ‘protecting a child from the risk of harm (whether physical or psychological)’ to ‘reporting the commission, or preventing the likely commission, of any offence involving intentional damage to property of a person or a threat of damage to property’ (section 10H(4)). In relation to admissibility, the exceptions are much more limited and relate to admissions or disclosures of child abuse or risk of abuse (section 10J(2)). In light of the context in which FDR is applied in practice, and the extent to which different services and agencies, including courts, have common clients, the boundaries of the confidentiality and inadmissibility provisions are starting to be tested in case law.125 More broadly, the question of information sharing is undergoing analysis and potentially reconsideration, as part of the ongoing program of improving the family law system capacity to respond to parents and children who may be at risk of family violence and child abuse and neglect.126 In this context, the capacity to share information across services and with lawyers and courts, as well as between systems, namely the state- and territory- based child protection, family violence and criminal justice system and the federal family law system, is recognised to require significant improvement.127 FDRPs have two broad kinds of obligations. The first kind comprises professional obligations relevant to conduct and ethics and is set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (professional obligations). The second is a set of advisory obligations arising out of the FLA (the statutory obligations). The statutory obligations changed when the 2012 family violence amendments were introduced. Prior to the 2012 amendments, the statutory obligations of FDRPs (and advisors more widely) focused on informing parents about the possibility of entering into a parenting plan and about where they could get assistance for this purpose (section 63DA). Parenting plans are discussed further below (at 7.5.1.5). There is also an obligation to inform parents that they could consider the option of the child spending equal time or substantial and significant 123 Family Law Council, 2012, above n 74. 124 ibid. 125 See, e.g., Joe Harman ‘Confidentiality in Family Dispute Resolution and Family Counseling: Recent Cases and Why They Matter’ (2012) 17 Journal of Family Studies 204. Relevant cases include Rastall and Ball [2010] FMCA Fam 1290; Unitingcare—Unifam Counselling and Mediation and Harkiss and Anor [2011] FamCAFC 159. 126 Harman, 2012, ibid; Elizabeth Matthew, ‘Concerns about the Limits of Confidentiality in FDR’ (2012) 17 Journal of Family Studies 213. 127 Richard Chisolm, Family Courts Violence Review, Attorney General’s Department, Canberra, 2009.

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time with each of the parents (section 63DA(2)). These requirements were introduced as part of the 2006 reforms and reflected the Commonwealth Parliament’s desire to encourage agreement and shared parenting. The additional statutory obligations as set out in 2012 are consistent with the intent of the 2012 changes to enhance the family law system’s ability to deal with family violence and child abuse. In addition to the obligations in section 63DA just described, the statutory obligation of advisors to inform parents that the best interests of the child are paramount has been given increased prominence by being moved from section 63DA(c) to a free-standing provision earlier in Part VII: section 60D(1)(a). Further, the provisions specifying the importance of ‘protection from harm’ over ‘meaningful relationship’ in section 60CC2A (see 6.4) are mirrored in section 60D(1), which also sets out the relevance of these issues to best interests in an advisory context. When the 2006 statutory obligations were introduced, concerns were raised that they ‘may conflict with accepted standards of mediation practice’ in which ‘the matters discussed at, and the outcomes arising from, a mediation process belong to the parties concerned, taking into account children’s needs’.128 Later, Richard Chisholm pointed out that, by staying silent on family violence and child abuse, the 2006 statutory section63DA obligation: effectively invites the professional to ignore issues of family violence and safety, and focus only on the benefits of parental involvement. By doing so it seems likely to have exposed people to increased risks of violence, by contributing to the impression that the family law system is more interested in encouraging parents to be involved than respecting the safety of adults and children.129

This analysis supported a recommendation intended to simplify Part VII significantly (see Chapter 6) and heighten the attention paid to protection from harm. However, the Federal Government chose instead to clarify advisors’ statutory obligations (among other measures already described) and retain the pre-existing Part VII structure. The positioning of two sets of statutory obligations for FDRPs and ‘advisors’ more generally at different points in Part VII is yet another illustration of the complex and convoluted nature of FLA parenting provisions discussed in Chapter 6 and further analysed in Chapter 9.

7.5.1.2 When is FDR applied and how ‘mandatory’ is it? A significant feature of the 2006 amendments was to provide stronger legislative support for FDR than had been enacted previously. Although the reforms were often spoken of as 128 See National Alternative Dispute Resolution Advisory Council, Comments to the Attorney-General in Relation to the Report of the Parliamentary Inquiry into Child Custody Arrangements in the Event of Family Separation, publisher, place 2005, p 1. Relationships Australia did not support the imposition of requirements that advisers inform parents that they could consider an option of the child spending equal time with both parents when developing parenting plans. They were of the view that the requirement ‘firmly frames the discussion around parental rights rather than focussing on the child’, and that it ‘is at odds with allowing the adviser to be impartial’: Relationships Australia, Submission No. 14 to the Senate Legal and Constitutional Legislation Committee Inquiry into the Provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005, 2006. 129 Chisholm, 2009, above n 127.

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having introduced ‘mandatory’ FDR,130 there are two avenues in the legislation that permit parents to lodge a court application without attempting (or completing) FDR. The first is through a set of exceptions that may be applied in certain circumstances (the exceptions avenue). The second arises where parents are assessed for FDR (or start an FDR process) and are assessed by the FDR practitioner as not suitable at the outset or during the process. In these circumstances, parents may lodge a court application accompanied by a certificate issued to the applicant by an FDR practitioner (section 60I(7)) (the ‘certificate avenue’).131 As the following discussion indicates, practice decisions about which of these avenues is appropriate in any given case are complex, particularly since courts have the discretion to refer a case to FDR even when a court application is made pursuant to the exception avenue: FLA section 60I(10). The legislation provides six grounds that may support the lodgement of a court application without attempting FDR or obtaining a certificate. These exceptions are: • where there is an application for a consent order (FLA section 60I(9)(a)); • where there are ‘reasonable grounds to believe’ that ‘there has been abuse of the child by one of the parties to the proceedings; or there would be a risk of abuse of the child if there were to be a delay in applying for the order; or there has been family violence by one of the parties to the proceedings; or there is a risk of family violence by one of the parties to the proceedings’ (section 60I(9)(b)); • where the dispute has arisen as a result of a contravention of an order made in the previous 12 months (section 60I(9)(c)); • where the application is urgent (section 60I(9)(d)); • where there is incapacity (physical or otherwise) to participate in FDR (section 60I(9)(e)); or • where there are other circumstances provided for in the regulations (section 60I(9)(f )). In terms of the certificate avenue, three different sets of circumstances may give rise to a certificate being issued (section 60I(8)). The first concerns the engagement of the parties in the FDR process. A certificate may be issued where one party engages with the FDR service and the other party (or parties—FDR may involve more than two parties, such as new partners, grandparents or extended kin in the case of Aboriginal and Torres Strait Islander peoples) refuses to do so (section 60I(8)(a)) or engages and then subsequently withdraws. The second set of circumstances involves the FDR practitioner making an assessment that the matter is not suitable for FDR (section 60I(8)(aa)). Such assessments may be made following screening and preparation sessions or they may be made after FDR has commenced (section 60I(8)(d)). Such assessments are guided by the requirements of the Family Law Family Dispute Resolution Practitioners Regulations 2008 (Regulation 25). These involve the FDRP considering whether the capacity of either or both of the parties to 130 For example, Pidgeon, 2013, above n 66. 131 In fact, the FCoA’s pre-action procedures in the Family Law Rules 2004, sch 1, came close to imposing compulsory dispute resolution processes. The change may be more a strengthening of the message.

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‘negotiate freely’ in the dispute is affected by a non-exhaustive range of matters (see earlier discussion), including family violence, concerns about the safety of the parties, equality of bargaining power, and concerns about child abuse and the emotional, psychological and physical health of the parties (Regulation 25(2)). The third set of circumstances arises when FDR is attempted but does not produce an outcome. In such cases, the FDRP is required to consider whether each party made a genuine effort to resolve the dispute and provide a certificate reflecting this assessment. Such certificates may indicate either that a ‘genuine effort’ to resolve the dispute was made by all or some parties (section 60I(8)(b)). The provisions allow for this certificate to indicate which party did not make a genuine effort (section 60I(8)(c)), but it seems that in practice this occurs rarely. This is understandable given that such certificates may, under the legislation, be considered by courts in deciding whether to order parties to have further engagement with FDR or in relation to making a costs order (section 60I, note) (see next paragraph). In practice, this system of certificates and exceptions to FDR has raised some concerns, particularly about referrals being made to FDRPs for the purpose of obtaining a certificate rather than attempting FDR.132 Dimopoulos documents concerns expressed by lawyers that FDR may be being applied in some unsuitable cases and that FDR is being undertaken as ‘a mere step in a “strategic operation” towards the legal enforcement of their clients’ rights’.133 The Australian Law Reform Commission’s (ALRC’s) Family Violence report also highlighted concerns. These included suggestions that lawyers were referring clients to FDRPs for an assessment to ‘out-source’ the process of screening and assessment of family violence and child safety issues, rather than making an assessment themselves.134 The reasons for this practice were said to be twofold. First, lawyers did not have confidence in their own ability to make an assessment due to a lack of training and expertise in family violence. Second, obtaining a certificate was seen to be less costly than establishing the grounds for an exception. Apart from placing strain on FRC resources, which is where most certificates are issued, the practice raises concerns since FDRPs do not perform a forensic role and must take parties’ disclosures at face value.135 The ALRC report describes varying views among legal and relationship support services about whether this is a legitimate practice and recommended that the capacity of lawyers to screen and assess family violence and make referrals be improved. Developments consistent with this recommendation are discussed in Chapter 5. Fisher and Brandon raise a further issue in relation to the certificate system: they note that some FDRPs have experienced clients seeking second certificates on the basis that the first certificate reflected grounds adverse to their interests.136 Since some of the grounds for issuing a certificate (for example, genuine effort: section 60I(8)(c)) may contribute to a costs order being made against a party if a matter proceeds to court, some FDRPs have voiced concerns about their ability to make an adequate judgment about ‘genuine effort’ and there are concerns about being sued over such judgments.137 Hilary Astor has suggested 132 133 134 135 136 137

Kaspiew et al., 2009, above n 1, p 100. Dimopoulos, 2010, above n 80, p 196. ALRC, 2010, above n 10, p 1007. ibid., p 1049, quoting AIFS submission and others. Fisher and Brandon, above n 115, p 277. ibid., p 289.

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that FDRPs are reluctant to issue certificates on these grounds for a number of different reasons including that the complexity of some clients’ lives meant that simply attending FDR reflected a ‘genuine effort’ and that assessing ‘genuine effort’ involved the ‘impossible task’ of scrutinising the ‘intra-psychic processes of individuals’.138 Like the presumption in favour of shared parental responsibility discussed in Chapter 6 (see further Chapters 6 and 8), the provisions in relation to FDR suggest that the presence or absence of family violence is the guiding principle in their application. This reflects policy intent for FDR to be applied to cases that might be considered unproblematic in terms of concerns with family violence or child abuse. This intent also acknowledges longstanding concerns about the implications of applying a dispute resolution process where a history of family violence has most probably produced inherent imbalances in power. A further concern behind this intent was to ensure that matters involving questions of fact requiring forensic resolution, such as those involving family violence and child abuse, would be resolved by courts. This concern is also reflected in the framing of the presumption for shared parental responsibility, with the presumption being not applicable in matters where there are reasonable grounds to establish that concerns about family violence and child abuse are pertinent. As with the application of the substantive parenting provisions, the empirical evidence demonstrates that the operation of the exceptions to FDR is not based on a distinction between families affected by family violence and child abuse concerns and those not affected by such concerns. Rather, such concerns are common among families who use FDR. This is exemplified by the findings of the AIFS SRSP 2012 that 15 per cent of the parents who had sorted out their parenting arrangements and reported physical abuse and/or unwanted sexual activity before or during separation had nominated FDR, counselling or mediation as the main pathway for reaching agreement.139 Where emotional abuse without physical abuse or unwanted sexual activity before or during separation was reported by parents who had also sorted out their arrangements, 10.4 per cent used counselling, mediation or FDR. In contrast, six per cent of parents who reported no violence before or during separation and had settled their parenting arrangements reported using this pathway. Although a history of family violence raises complexities in FDR-type processes (as discussed further below), it does not stand in the way of agreements being reached in a substantial minority of such cases in which it is applied. The AIFS SRSP 2012 findings show 29.9 per cent of parents who used FDR and reported physical hurt and unwanted sexual activity also reported reaching agreement in FDR, as did 35.7 per cent of parents who reported emotional abuse in the same time frame. This compares with 43.9 per cent of parents who did not report any family violence reporting an agreement being reached in FDR. Certificates were significantly more likely to be issued to parents affected by family violence before or during separation (32.6 per cent for those reporting physical hurt and emotional abuse and 24.8 per cent reporting emotional abuse) than to those where no violence was reported (13.0 per cent). Underlining the point made earlier that certificates are not issued as a matter of course, the proportions of parents reporting no certificate 138 Hilary Astor, ‘Genuine Effort in Family Dispute Resolution’ (2010) 84 Family Matters 61. 139 De Maio et al., 2013, above n 1, Table 4.10, p 51.

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and no agreement in each of the sub-groups was 22.7 per cent for physical hurt and/or unwanted sexual activity, 24.3 per cent for emotional abuse and 26.7 per cent for no family violence.140

7.5.1.3 FDR, family violence and child safety concerns Although there is acceptance that FDR can be applied appropriately in some cases involving family violence, there are a number of concerns that arise in this context. The first point to note is that although in practice FDR often occurs where there is family violence (see 7.5.1.2) it is generally accepted that issues directly related to family violence should not be mediated,141 but FDR processes may be applied in some circumstances to resolve issues other than family violence, such as parenting arrangements. The application of FDR in this context is recognised to pose particular challenges, not the least of which is ensuring the safety of the clients, the children and the professionals involved in the process.142 More substantively, Rachael Field sums up the implications of a history of family violence for FDR dynamics in this way: In mediation, it is difficult, if not impossible, for a perpetrator to work in a genuinely co-operative and consensual way to resolve the dispute. Family violence involves the perpetrator exerting power and control over the victim. Perpetrators do not co-operate with their victims; rather they impose their interests on their victims, they coerce and intimidate them, and they monitor and threaten them.143

If FDR is applied where there is family violence, it is recognised that a high level of skill and a range of particular safeguards, including potentially the use of shuttle approaches, is required to apply FDR appropriately in the context.144 While it is clear that some cases will never be amenable to resolution through FDR, including those in which the power imbalance is not susceptible to amelioration and the perpetrators are not capable of developing insight into the impact of their behaviour and the needs of their children, FDR may also be viewed as a cheap, accessible and expeditious avenue for overcoming ‘jurisdictional divides to offer seamless and effective resolution of intersecting issues in disputes involving family violence’.145 The ALRC family violence inquiry documented the range of challenges that arise in this context and that have emerged since the 2006 family law reforms, which saw the rapid roll out of FDR services and necessitated the speedy development of FDR processes, frameworks and workforce. It concluded that: There appears to be some inconsistency in standards in the FDR sector with respect to identifying family violence, assessing suitability for FDR and other aspects of 140 ibid., Table 4.13, p 52. 141 ALRC 2010, above n 10, p 984. 142 The level of stress that professionals experience operating in this context is discussed in Danielle Lundberg and Lawrie Moloney, ‘Being in the Room: Family Dispute Resolution Practitioners’ Experience of High Conflict Family Dispute Resolution’ (2010) 16 Journal of Family Studies 209. 143 Field, 2010, above n 104, electronic access. 144 ALRC, 2010, above n 10, p 993; Brisbane Women’s Legal Service, Towards a Coordinated Community Response in Family Dispute Resolution: A Model to Pilot FDR For Families Where Past or Current Family Violence Exists, Women’s Legal Service, Brisbane, 2010. 145 ALRC, 2010, above n 10, pp 984, 991.

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screening and referral and FDR practice … Clearly some services and practitioners have high standards of practice in relation to family violence, but there appears to be room for improvement in the sector. The solutions to these problems appear to lie in extra-legal measures such as improved training and accreditation, and improved screening and assessment frameworks’.146

As noted in Chapter 5, considerable effort and resources have been devoted to improving screening and assessment in recent times, with the development of the DOORs framework and the AVERT family violence training package for use across the family law sector. As with the family law system more broadly, the challenge of dealing with matters involving family violence and child safety in the FDR context continues to be the subject of scrutiny and debate from the perspective of policy and practice. At a policy level, there is clear recognition of a need to develop program structures and funding approaches better geared to meeting the needs of complex families. This need is reinforced particularly clearly by empirical evidence from AIFS LSSF Wave 3 about the longer-term experience of families with complex characteristics who used FDR to sort out parenting arrangements in the first 18 or so months after separation. The findings of this study show sustained negative experiences among families with multiple problems. These families are denoted in the analysis by the presence of two or more of these features in Wave 1—a history of family violence before, during or after separation, ongoing safety concerns and clearly negative inter-parental relationships (‘lots of conflict’ and ‘fearful’). Such families were much more likely than families with one or none of these indicators to report changed or unsettled parenting arrangements between survey waves and experiences of family violence and ongoing safety concerns across survey waves. On the basis of these data, Qu and colleagues observe that these findings ‘raise serious questions about whether existing (or indeed any) FDR models are geared to addressing the level of complexity this client group manifests’.147 The salience of this concern is supported by practice experience in one development designed to assist families affected by family violence. The pilot program of Co-ordinated Family Dispute Resolution (CFDR) demonstrates the challenges involved in developing and implementing such approaches.148 The CFDR pilot (which was not subsequently funded by the Federal Government) was based on a ‘co-ordinated community-based’ approach to meeting the needs of families affected by family violence and child safety concerns. The model was developed by Brisbane Women’s Legal Service and other consultants and attempted to provide FDR services geared to the level of complexity evident among many families who use the family law system services. The pilot involved the formation of multidisciplinary teams of professionals working across agencies in an attempt to find a contextual way of working with such families. The multiagency teams, coordinated by a professional at the lead partner agency, involved a coordinator, support workers for each parent (a men’s worker and a family violence worker), lawyers for each parent, a FDRP and potentially a child-inclusive practitioner. 146 ibid., p 997. 147 Qu et al., 2014, above n 10. 148 Kaspiew et al., 2012, above n 10.

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The evaluation of the pilot showed multiple challenges arose in implementing CFDR. These challenges included needing to overcome differences in practice philosophies and operating frameworks between the agencies, logistical coordination of appointments with different professionals at different agencies for clients (some of whom exhibited significant fragility), and developing collaborative relationships among the professionals in each partnership. These challenges were overcome to varying extents in each of the five locations in which the pilot program was implemented, with three of the five pilot sites experiencing ongoing difficulty in some or all of these areas. Underlining the complexities involved in providing FDR where there has been family violence, only 27 of the 126 cases accepted into the CFDR pilot across the five sites reached mediation. Reasons for the remainder not reaching FDR included being screened out, negative assessments of the capacity of one or both parties to participate effectively or one of the parties choosing to terminate the process. The level of service provided in the pilot was intensive, with pilot clients receiving multiple legal advice sessions and, where matters proceeded to FDR, most having multiple FDR sessions. The evaluation report notes that family violence support workers provided intensive risk assessment, risk management and support, with ‘risks escalating and abating as clients moved through the process, for varying reasons and with different triggers’.149 The CFDR evaluation reinforces the evidence that FDR processes can be traumatic for women who have experienced family violence,150 underlining the ongoing need for professionals to maintain sensitivity to these issues and ensure that their professional experience has not desensitised them. The report also described in some depth the clinical challenges involved in assessing and making decisions about how to proceed in FDR where there has been family violence. A team approach to these decisions, based on information from all professionals involved (except lawyers because of professional ethics concerns), was seen as a strength, since it supported information from each client feeding into the decision. Although most clients interviewed for the evaluation were positive about their experience, some reported feeling fearful in the FDR sessions. For some, but not all, these feelings were overcome with assistance and support from professionals. The evaluation report concluded that clinical decisions about and within FDR processes where there has been a history of family violence were complex and that the potential for victims to experience trauma in this context should not be underestimated. Interviews with women conducted as part of the evaluation illustrate this. For example, for the following woman, the support of professionals meant that, despite her history, the FDR session was difficult but positive in the end: Emotionally … I’m a bit messy when it comes to dealing with my ex—so that’s probably—wouldn’t have mattered where we were … Whilst we were in the same room, we were surrounded by other people, so I didn’t feel threatened by him. But he’s certainly an intimidating man and he’s very forceful in how he speaks … which I obviously react to after all these years …151

149 ibid., p xi. 150 ibid., p 126. 151 ibid., p 114.

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The experience of this woman illustrates how the dynamics of family violence can continue to play out years after the relationship has ended. However, for her, the FDR session while emotionally difficult was endurable due to the presence of others. In contrast, this next quote highlights an example where the dynamics were not dealt with adequately or appropriately by the professionals and the FDR session was emotionally unsafe from the woman’s perspective: He pushed me at an emotional level … to the point where I was in tears in the room … They just let that roll to the point where I was in tears and had to leave.152

The CFDR pilot suggests the boundaries and conditions within which FDR processes may be appropriately applied in circumstances where there has been a history of family violence. It is clear that these kinds of cases required intensive support and careful clinical decision making. It is also clear that, even with these conditions, some cases will never be susceptible to resolution through FDR. Through the evidence provided by this and other studies, the limits of the extent to which some problems in some families are amenable to resolution through non-court-based mechanisms is becoming increasingly obvious. There is a core group of families for whom the ideal of non-judicial, quasi-therapeutic, rational dispute resolution will never be realisable, no matter what the law says or what the service infrastructure provides. From a psychological perspective, one of the key issues that arises in these ‘hard-core’ cases is the level of insight that either or both parties may have in relation to the viability of their position and the constellation of interests and needs that must be considered in making parenting arrangements, particularly those of children. This is not to suggest, however, that court processes are always an ideal alternative.

7.5.1.4 Children’s interests in FDR The idea that children’s views should be of influence in mediation-style processes in Australia is comparatively new and approaches to implement this idea are even newer.153 In the early 2000s, the Attorney-General’s Department auspiced the development of approaches that could be applied in mediation to ensure the interests of children could be centralised in the process either directly or indirectly.154 Building on this work, FDR models in current practice accommodate a focus on children’s interests in varied ways, although there is no legislative articulation of the need to consider children’s views in FDR.155 There are two main approaches that have been developed to specifically provide for the consideration of children’s needs and interests in agreement making. One is child-focused practice and the other is child-inclusive practice. Both child-inclusive and child-focused approaches are based within a therapeutic framework founded on psychological and behavioural research and theory, with a rationale extending well beyond that of supporting participation,156

152 ibid., p 114. 153 Moloney and McIntosh, 2004 above n 107. 154 ibid. 155 For an analysis of the implications of this long-standing omission, see Richard Chisholm, ‘Children’s Participation in Family Court Litigation’ in Dewar and Parker, 2003, above n 54, 9–36. 156 J McIntosh, ‘Child Inclusion as a Principle and as Evidence-Based Practice: Applications to Family Law Services and Related Sectors’ (2007) 1 Australian Family Relationships Clearinghouse Issues, Australian Institute of Family Studies, Melbourne, p 5, available at , 28 April 2014.

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although this is also an important foundation for the approach.157 McIntosh and colleagues note the ‘primary aim is to assist parents to re-establish or consolidate a secure emotional base for their child after separation’.158 Other aims include facilitating the development of parenting arrangements that assist children to recover from the effects of parental acrimony and assisting parents to reduce ongoing acrimony.159 The difference between the two approaches of child-inclusive versus child-focused practice hinges on the extent to which children are involved in the process. In child-focused practice, the FDRP encourages the parties to focus on the needs of the child or children in the process through discussion about them, their interests and routines. Some FDRPs may use symbolic representations, such as a photo, of the children who are the subject of negotiation to encourage the parents to focus on the needs and interests of the particular child. According to McIntosh and colleagues, this approach requires the mediator to ‘deliberately step away from a neutral posture towards a distinctive therapeutic approach to building sensitive, shared parental attunement, at the same time actively advocating for the interest of children’.160 ‘Parental attunement’ ‘refers to a parent’s capacity to take their child’s perspective’.161 In child-inclusive practice, a specialised children’s practitioner interviews the child privately and then provides feedback to the parents on the child’s needs. This process is undertaken carefully, to ensure that it does not open the child to criticism or retribution from a parent. In some cases, the children’s practitioner may decide not to share some or all of what the child says with the parents if it is physically or psychologically unsafe to do so. In light of the complexities involved in child and parent relationships and the potential vulnerability of children in this context, child-inclusive practice needs to be undertaken by a highly skilled and experienced practitioner.162 McIntosh and others have raised concern about the potential negative impact on children and families if this approach is applied by inexperienced practitioners and have stressed the need for children’s practitioners to be adequately qualified and have sufficient expertise to equip them to work with complex families, as well as having supportive organisational infrastructure including access to expert supervision.163 In recognition of the specialised nature of the child-inclusive process, it is only applied in cases that meet particular criteria.164 The main criteria are for the parents to have adequate ego strength and reflective capacity and a genuine desire to improve their child’s situation. The practitioner must also be able to form a judgment that the child-inclusive

157 ibid. 158 ibid. 159 ibid., p 5. 160 Jennifer E McIntosh, Yvonne D Wells and Caroline M Long, ‘Child Focused and Child Inclusive Family Law Dispute Resolution’ (2007) 13 Journal of Family Studies 8, 10. Reports on further waves of data from this study are reported in Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells and Caroline Long, PostSeparation Parenting Arrangements and Developmental Outcomes for Infants and Children: Collected Reports, Family Transitions, North Carlton, 2010. 161 McIntosh, 2007, above n 156, p 4. 162 McIntosh et al., 2007, above n 160, p 16. 163 ibid., pp 15–21. 164 ibid.

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process has the potential to improve the child’s current situation.165 Lawrie Moloney and Jennifer McIntosh point to research showing the ‘significant long-term impacts on children’ of ongoing parental conflict.166 It is argued that ‘[s]killed, respectful and sensitive feedback to parents through a child-inclusive model … [has] both an informative and therapeutic intent’.167 Evidence from evaluations of these child-focused and child-inclusive processes that were conducted in their developmental phases shows that parents and children both reported less conflict between parents after each intervention.168 The child-inclusive process had further benefits. One year after application, the child-inclusive process also resulted in fathers reporting lower acrimony towards former spouses, greater improvement in the parental alliance, children experiencing greater closeness with fathers and improved emotional availability from fathers, greater satisfaction with parenting arrangements from the perspective of parents and children, and improved or stable mother–child relationships.169 Four years later, the evaluation research indicated a range of positive outcomes accrued for the families that had taken part in the child-inclusive process compared with the childfocused process: these included lower levels of recourse to the legal system and return to mediation, higher levels of stability and satisfaction with arrangements (by fathers and children), lower levels of inter-parental conflict and more positive well-being outcomes for children.170 Child-inclusive and child-focused practices are both applied in FRCs. The childfocused approach is the dominant one and the more resource intensive child-inclusive approach is applied less frequently.171 Although there is a significant amount of practitioner led discussion about these approaches in the family practice literature,172 there is limited empirical evidence about the impact of these approaches as they are applied in current practice. One study by Robyn Fitzgerald and Anne Graham examined child participation practices and experiences in one FRC based in NSW.173 The study involved interviews with 12 children aged between seven and 18 who had been involved in a child consultation. The study also included interviews with 27 parents and some professionals and managers from the FRC. The research highlighted an ambiguity in ‘the language and practice’ of children’s participation in the FRC and in views about the purpose of the child consultation process. 165 Moloney and McIntosh, 2004, above n 107. 166 Diana Bryant, ‘The Role of the Family Court in Promoting Child-Centred Practice’ (2006) 20 Australian Journal of Family Law 127, 141, referring to Moloney and McIntosh, above n 107. 167 Bryant, ibid. 168 McIntosh et al., 2007, above n 160. A subsequent qualitative study found fewer parents who were involved in childinclusive practice reported improved relationships compared with those involved in non-child-inclusive practice: Felicity Bell, Judy Cashmore, Patrick Parkinson and Judi Single, ‘Outcomes of Child-Inclusive Mediation’ (2013) 21 International Journal of Law, Policy and the Family 116. 169 McIntosh et al., 2007, above n 160, p 15. 170 Jennifer McIntosh, Caroline Long and Yvonne Wells, Children Beyond Dispute: A Four Year Follow Up Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution, Family Transitions, Carlton, 2009. 171 Jennifer Hannan, ‘Child Protection in Family Relationship Centres: Innovations in Western Australia’ (2013) 51 Family Court Review, 268; Kaspiew et al., 2012, above n 10; Allen Consulting Group above n 11, p 47. 172 For example, Bill Hewlett, ‘Accessing the Parental Mind through the Heart: A Case Study in Child-Inclusive Mediation’ (2007) 13 Journal of Family Studies 94. 173 Graham and Fitzgerald, 2010, above n 49.

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A wider debate that has emerged in recent years concerns the extent to which either child-focused or child-inclusive practice should be applied in circumstances where family violence and child safety concerns are pertinent.174 On one view, child-inclusive or childfocused practice should not be applied in such circumstances.175 Underlying this position is a range of concerns, including the possibility that making disclosures to a children’s practitioner may make a child unsafe176 and that FDR processes are not the appropriate place for dealing with matters involving child abuse and family violence. The other view is based on an acknowledgment that these kinds of matters are, in practice, often dealt with in community sector agencies such as FRCs rather than the legal sector, although many of the child protection concerns revealed in FRC processes may fall below the threshold for child protection intervention.177 This second view therefore does not automatically preclude children’s participation where there may be family violence or child safety concerns. Reflecting developments in practice that are starting to see child-inclusive practice applied outside of FDR processes and in the context of families where there are concerns about the well-being of the children, one organisation that operates FRCs and other family support programs in Western Australia, Anglicare, has developed a model of child-inclusive practice that does not involve proceeding to FDR.178 According to Jennifer Hannan, this model is routinely applied where ‘any risk factor is identified in the course of intake processes with parents’.179 The thinking behind the approach is based on a view that parents may not be in any position to assess risks to children for a range of reasons and that involving children in child-inclusive practice ‘adds to the picture of the family, and identified needs, responses, plans and outcomes can be changed markedly by having information from all family members.180 The model for this non-FDR child-inclusive process requires that one parent meets the criteria identified as necessary for the application for the FDR-based child-inclusive practice model, as described above. It entails a safety assessment, using a variety of tools developed to use with children to assess risk, and a discussion with the child that explores their experience of the parental separation. According to Hannan, the process unfolds in this way: The level of risk to the child are [sic] assessed by weighing family strengths, existing supports and protective factors; past harm to the child; potential future harm, and any complicating factors. Feedback is provided to parents when it is deemed safe to do so and is couched in such a way that actions such as appropriate referrals can be taken to ensure the child’s safety and future well-being. The practitioner is always mindful of any possible consequences of disclosure for the child.181 174 Kaspiew et al. 2012, above n 10; Jennifer Hannan, ‘Child Protection in Family Law Services: How Much Do We Choose to Know?’ (2012) 18(1) Journal of Family Studies 90; Tania Petridis and Jennifer Hannan, ‘Innovations in Practice: A Safety Assessment Approach to Child Inclusive Family Dispute Resolution’, (2013) 17(1) Journal of Family Studies 29; Hannan 2013, above n 171. 175 See, e.g., Graham and Fitzgerald, above n 49, noting concern among FRC personnel about proceedings with a child consultation where family violence and abuse are relevant: p 53. 176 Kaspiew et al., 2012, above n 10. 177 Hannan, 2013, above n 171, p 270. 178 ibid. 179 ibid. 180 ibid., p 270. 181 ibid., p 271.

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Hannan argues that, given the complex nature of the client base of FRCs, a focus on identifying and assessing risks for children in FRC client families is essential. She suggests that FRCs will ‘increasingly become part of the identification, assessment and referral of children at risk’.182 In summary, this section has explained how FDR operates. In addition to providing an overview of the system of certificates and exceptions and outlining FDRP obligations, the discussion has considered two areas where practice is developing. The first is in relation to the extent to which clients affected by family violence and client safety concerns can be safely appropriately supported to use FDR: this is a significant practice challenge requiring careful clinical decision making. The evidence suggests that in some cases FDR is being applied inappropriately in this context. The second issue concerns the application of childfocused and child-inclusive processes. Practice is developing in this area and initial evaluative evidence is promising. However, there is limited empirical evidence on the impact of more widespread and routine application of these processes. A further area where innovations in practice are emerging is the application of child-inclusive practice in situations where risks to safety and well-being are being assessed. Again, these are developments that warrant further research.

7.5.1.5 Other out of court mechanisms for reaching agreement In addition to family dispute resolution, there are several other ways in which arrangements for children and financial matters together or separately can be made without recourse to court. These are described in the following sections.

7.5.1.5.1 Lawyer negotiation As noted earlier, in circumstances where one party (or both) does not want, or is not able, to negotiate a property settlement or children’s arrangements without assistance, those negotiations can take place between their lawyers. This form of dispute resolution is not formally regulated, except through the professional practice rules and legal ethics that apply more generally. It is also not visible, little researched, and, as a result, not well understood. For all of these reasons, we can speculate that the practice of lawyer-to-lawyer negotiation is probably strongly influenced by, and linked to, local legal cultures and to the particular style and approach of the individual lawyers involved. Negotiations between lawyers most commonly start with the exchange of correspondence setting out the client’s instructions, often expressing a view about the likely outcome if the matter proceeded to trial, and then making an offer on a ‘without prejudice’ basis. This can result in a quick resolution, but can also deteriorate into a lengthy (and so expensive) and unproductive exchange. One form of more structured and focused lawyer negotiation (sometimes engaged in after an initial exchange of correspondence) is the ‘four-way conference’ in which both clients and their lawyers meet (often at one of the lawyer’s offices) in an attempt to reach a resolution. 182 ibid., p 276.

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Anecdotal evidence suggests that in such conferences lawyers often draw on mediationrelated skills and practices, including the identification of each of the party’s interests, and the exploration of outcomes that can promote those interests. However, many lawyers adopt quite positional approaches—either generally or in a particular case. To some extent, the lawyer’s approach will reflect the client’s instructions. Having said that, a good lawyer will explain to a client the benefits of taking a less positional approach in negotiations in an attempt to achieve agreement, while preserving or improving post-separation relationships. Whatever approach (or approaches) are taken, it will be important for clients to ‘buy into’ and understand their lawyer’s approach to negotiation. A particular form of lawyer negotiation through conference is collaborative law (see below). If agreement is reached through lawyer negotiation, that can then be formally documented, whether by application for consent orders, a binding financial agreement and/or a parenting plan.

7.5.1.5.2 Collaborative law Collaborative law: is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court. Parties wishing to engage in the collaborative process must each retain a lawyer to represent their respective interests. The parties must also be prepared to participate actively in a process of open negotiations, aimed exclusively at settlement.183

Collaborative process involves lawyers assisting their clients in the dispute resolution process by providing advice during the negotiations between the parties with the goal being to identify a settlement that meets the need of the family as a whole and that both parties can live with. It ‘proceeds by way of face-to-face discussions between the parties and their lawyers and, where appropriate, other professionals’, with the focus being on ‘the parties’ respective interests rather than what a court might order if the matter proceeded to litigation’.184 Parties are more involved in working through issues and developing solutions than in standard lawyer-based negotiations. It is a process aimed at assisting parties to have a better post-separation relationship. Sometimes experts, including accountants, financial planners, child psychologists and/or family dispute resolution practitioners, are jointly engaged by the parties and participate in the process. Both parties receive legal advice from their own lawyers but, in most forms of collaborative law, that advice is ‘on the table’ and available to both. Collaborative law is resource-intensive and is limited to those families that can afford to pay the private fees of a family law practitioner accredited to practice collaborative law, as well as the fees of the other experts involved in the collaborative law process. A further complexity of collaborative law is that the parties and their lawyers sign contracts to the effect that they will not threaten, during the collaborative law process, to 183 Family Law Council, Collaborative Practice in Family Law, A Report to the Attorney-General, December 2006, Commonwealth of Australia, 2007, [2.1]. See also Caroline Counsel, ‘What Is This Thing Called Collaborative Law?’ (2010) 85 Family Matters 77; Catherine Caruana, ‘Dispute Resolution Choices’ (2010) 15 Family Relationships Quarterly 12. 184 Family Law Council, above n 183, [2.2].

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commence court proceedings and that if the collaborative process is abandoned and court proceedings commenced, the parties will have to engage different lawyers to act for them (with all the additional expense and time this involves). This is designed to encourage settlement and an interests-based approach and it clearly creates significant incentives to settle. These incentives can, however, operate in the context of existing power imbalances (created, for example, by lack of equal access to money, violence, or differences in willingness to prioritise the interests of third parties like children) to produce unjust results.

7.5.1.5.3 Mechanisms for giving effect to private agreement The mechanisms described in this section are ways in which, once agreement is reached (possibly as a result of the dispute resolution processes outlined in 12.3), that agreement can be given effect. There are three main ways in which separating spouses and de facto partners may reach agreement regarding their property disputes without commencing court proceedings, namely informal agreement, parenting plans, and consent orders. In each instance, there are particular potential benefits and pitfalls.

Informal agreement There is no legal requirement that separating spouses or de facto partners enter a formal agreement regarding how their property will be divided or arrangements for children. There are, however, taxation and stamp duty implications that often create strong incentives to formalisation (12.4.2) in relation to property and financial matters. When this is not the case, parties are more likely to agree informally between themselves on financial (and parenting) matters, either with or without legal or other professional assistance. Other reasons for informal agreement include a lack of free or affordable professional services to assist in relation to FLA financial disputes, low or negligible property pools not justifying the cost of professional services, and a desire to ‘keep the peace’ with an ex-partner—the concern being that involving lawyers will increase conflict (a concern that research on family lawyers does not support).185 Preserving financial privacy (including the scrutiny of the ATO and Centrelink over one’s financial affairs) are further matters that may be of concern. In relation to parenting arrangements, in line with the findings reported earlier that most parents agree on parenting arrangements without intervention, most also report that agreements are not enshrined in any written document (AIFS SRSP). Of the parents who reported having had finalised arrangement (at the time of interview or previously had a 185 Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) 30 Journal of Law and Society 156; Rosemary Hunter, ‘Through the Looking Glass: Clients’ Perceptions and Experiences of Family Law Litigation’ (2002) 16 Australian Journal of Family Law 7; and Rosemary Hunter et al., Legal Services in Family Law (which includes a review of the previous research at 35–9). More recent research suggests that family dispute resolution practitioners and lawyers do not view themselves as being in competition for work and that where cross-professional criticisms were evident, they were likely to be made by family dispute resolution practitioners. Lawyers ‘generally described the work of family dispute resolution practitioners in extremely positive terms’: Helen Rhoades, Ann Sanson and Hilary Astor with Rae Kaspiew, Working on Their Relationships: A Study of Inter-Professional Practices in a Changing Family Law System, University of Melbourne, 2006, ii–iii. Overseas research includes, in the UK, John Eekelaar, Mavis Maclean and Sarah Beinart, Family Lawyers: The Divorce Work of Solicitors, Hart Publishing, Oxford, 2000, and Richard Ingleby, Solicitors and Divorce, Clarendon Press, Oxford, 1992.

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parenting arrangement in place but no longer at the time of the interview) in the AIFS SRSP study, 57 per cent of fathers and 65 per cent of mothers indicated the agreements were not written down.186 Where agreements had been written down, most parents indicated they had not been formalised by a court (58 per cent of fathers and 57 per cent of mothers).

Parenting plans Prior to 2006, parenting plans were provided for in the FLA but were apparently not widely used.187 The 2006 reform agenda sought to place greater emphasis on parenting plans through FRCs processes, which were seen as ‘the primary source of help and encouragement in developing a parenting plan’.188 Active promotion of this kind of agreement was one of the obligations placed on advisors as part of the 2006 family law reforms (FLA section 63DA). The legislation requires that parenting plans must be in writing and be signed and dated, but there are no other formal requirements. Although they are not legally enforceable, parenting plans do nonetheless have some reasonably significant legal effects. They will vary a previously made parenting order (section 64D), unless a court has, in exceptional circumstances, included in a parenting order a provision that it may only be varied by a subsequent order of the court (section 64D(2)). These exceptional circumstances include situations where risks of family violence or child abuse arise in relation to a child or where ‘substantial evidence’ suggests one person is likely to use coercion or duress against the parent to gain agreement.189 When making a parenting order, a court is to have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the child (section 65DAB). Consent orders The development of consent orders may occur in two main ways. In one avenue the parties make an agreement through discussion, FDR or other negotiation and present it to the court for endorsement through a special process available in the Family Court of Australia (this process is discussed in more depth at 12.4.2). In another process, consent orders reflect an agreement made between the parties after court proceedings have been initiated. The majority of court proceedings are settled in this way.190 Consent orders made by either of these routes can be drafted to cover property and spousal maintenance issues as well as parenting arrangements. There is little detailed empirical evidence about the dynamics at play when consent orders occur in either of these ways, but particularly when matters settle after proceedings 186 De Maio et al., 2013, above n 1, p 48. 187 Patrick Parkinson and Juliet Behrens, Australian Family Law in Context: Commentary and Materials, 3rd edn, Lawbook Company, Sydney, 2004, p 965. 188 Australian Government, A New Family Law System: Government Response to Every Picture Tells a Story, Canberra, 2005, p 3. 189 Section 64D(3) provides: ‘Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following: (a) circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; (b) the existence of substantial evidence that one of the child’s parents is likely to use coercion or duress to gain the agreement of the other parent to a parenting plan’. 190 Family Court of Australia, Annual Report 2012–2013, Family Court of Australia, Canberra, 2013, Figure 3.4; Federal Circuit Court of Australia, Annual Report 2012–2013, Federal Circuit Court of Australia, Canberra, 2013, Part 3.

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have been initiated. What little evidence exists suggests that certain events in the course of litigation can stimulate decisions to settle, including the withdrawal of legal aid assistance from one or both parties, the production of a family report that may mean one party is in a stronger or weaker position than the other and the appointment of an Independent Children’s Lawyer (ICL).191 As discussed below, one of the functions of an  ICL  is  to encourage the parties to settle the matter, on the basis that children’s interests are best served by avoiding protracted litigation. Where consent orders are being sought, the court may, but is not required to, have regard to the matters set out for consideration in determining what is in a child’s best interests (section 60CC(5)).192 There are some minimal particular requirements where the consent orders sought would result in a child living with someone who is not a parent, a grandparent, or other relative of the child, or would not result in the allocation of parental responsibility to a parent, grandparent or other relative (section 65G). In such cases, the court must not make the proposed order unless ‘the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order’ or ‘the court is satisfied that there are circumstances that make it appropriate to make the proposed order’ anyway (section 65G(2)). This involves a change from the previous provision, which imposed these requirements wherever there was to be an order in favour of someone (including a grandparent or other relative) who was not a parent of the child. This change can be seen as an example of the success of grandparents’ lobby groups in recent times in mainstreaming their claims in relation to family law matters.

7.5.1.6 Concerns about private settlement Some research and commentary has raised concerns about private settlement, particularly for women and children affected by family violence and child safety concerns and other disadvantaged groups.193 Although the levels of satisfaction with various pathways reported above suggest that the system works well in the main, there are clearly some instances in which settlement occurs not as a result of free agreement but because of resource or other pressures. In recent years, such concerns in relation to matters involving children and financial matters (together and separately) have been raised in research by Carson and colleagues,194 Kaspiew and colleagues195 and others196 and in law reforms submissions from agencies such as the Magistrates Court and the Children’s Court of Victoria.197 191 Kaspiew et al., 2013, above n 10, p 69. 192 Compare with Harris v Caladine (1991) 172 CLR 84, in which the High Court indicated what was required in making consent orders under s 79 (property adjustment: see 9.3.7.2): namely that those making consent orders must consider whether the order is proper, including at least a truncated consideration of the s 79(4) factors. 193 See, e.g., Rachael Field, (2010), above n 104; Helen Rhoades, ‘The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father”’ (2002) 16 International Journal of Law, Policy and the Family 71, 83. 194 Rachel Carson, Belinda Fehlberg and Christine Millward, ‘Parents’ Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings’ (2013) 25 Child and Family Law Quarterly, 406; Christine Millward and Belinda Fehlberg, ‘Family Violence and Financial Settlements in Family Law Matters’ in Children and Families in Australia: Selected Policy, Legal and Practice Issues (eds A Hayes and D Higgins), 2013, Australian Institute of Family Studies, Chapter 24, pp 235–43. 195 Kaspiew et al., 2009, above n 1; Kaspiew et al., 2013, above n 10. 196 ALRC, 2010, above n 10, section 21.41. 197 ibid.

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A persistent theme in the recent research and earlier studies is the link between unfair outcomes, a history of family violence and a sense that victims of family violence have a compromised ability to stand up for a fair outcome in all of these contexts for a range of reasons, including encouragement and pressure to settle in various parts of the system. For example, Lesley Laing’s study of 22 women who were making parenting arrangements against a background of family violence in 2008 found that the women reported experiencing pressure to consent to arrangements that they did not consider the best option for ensuring the safety of themselves and their children. This pressure came from their own legal representatives, those of their ex-partners and ICLs.198 Like other analyses,199 this research attributes such outcomes to a range of factors, including inadequate processes for assessing risks to women and children, a tendency among family law system professionals to emphasise the child’s right to a meaningful relationship with fathers over protection from harm, poor integration between services and a lack of coordination between different elements of the systems that respond to family violence and child protection and deal with family law issues, and a lack of understanding about family violence among family law system professionals. Laing’s findings are consistent with earlier research. One of the findings of Rosemary Hunter’s study of women’s experiences in court in cases involving domestic violence was that ‘a significant proportion of cases in which the files indicated quite a serious history of domestic violence resulted in settlement by consent orders prior to or during the final hearing’.200 She found that most lawyers and judges failed ‘to pay attention to power relations and safety considerations in negotiating and approving consent orders in the Family Court’, and that ‘consent orders often produced adverse material and symbolic consequences for survivors of violence’.201 In addition, research by Julie Stubbs, Miranda Kaye and Julia Tolmie showed that women who were the victims of domestic violence were ‘agreeing’ to arrangements that they felt were unsafe, both for themselves and for their children.202

7.6 Court processes This section provides an overview of how courts work in relation to parenting matters (for financial disputes see Chapter 11 (child support), 12 (property) and 15 (spousal and de facto partner maintenance). As discussed in Chapter 3, three main courts in Australia exercise family law jurisdiction: the Family Court of Australia (FCoA), the Federal Circuit Court (FCC) and the Family Court of Western Australia (FCoWA).

198 Lesley Laing, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence, University of Sydney, Sydney, 2010. 199 ALRC, 2010, above n 10. 200 Rosemary Hunter, Women’s Experience in Court: The Implementation of Feminist Law Reforms in Civil Proceedings Concerning Domestic Violence, unpublished PhD Thesis, Stanford University, 2005, p 202. 201 ibid., pp 304–5. 202 Miranda Kaye, Julie Stubbs and Julia Tolmie, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 93.

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In recent years, two significant developments have occurred in court processes. One development revolves around developing child-focused processes with an increasingly inquisitorial nature. This is reflected in legislative support for greater judicial control of court proceedings, stimulated by the FCoA’s trialling in 2004 of the Children’s Cases Program, which evolved into its Less Adversarial Trials process. The other development concerns initiatives aimed at finding effective ways to deal with matters involving child abuse allegations at the most serious end of the spectrum. This is evident in the FCoA’s Magellan case-management process, piloted in 1998, to deal with matters involving child sexual abuse or serious physical abuse (see 7.6.2).

7.6.1 Child-focused court processes One of the most significant legislative statements to be made in a procedural sense in recent years has been the enactment of Division 12A in Part VII of the FLA. These amendments were made in 2006, to support the program of increasing child focus in the family law system. In 2004 it was appropriate to describe ‘the ultimate adjudication processes’ of the FCoA as adversarial,203 despite the original vision of the court as a ‘helping court’ ‘that would place an emphasis on counselling and conferences as venues for resolving disputes over children and assisting families in transition’.204 During 2004, however, the FCoA instituted the Children’s Cases Program,205 which was a clear and conscious move away from an adversarial approach in children’s matters. It ‘set about providing a highly supportive, consensual and less formal process for separating parents to follow, to maximise their chances of settling their dispute effectively, and without full adversarial armoury’.206 It was clearly influenced by inquisitorial processes in Europe, although with a greater emphasis on mediation and conciliation than in some parts of Europe.207 Former Chief Justice, Alastair Nicholson has said: ‘Above all the scheme placed a duty on the judge to elicit the truth and arrive at an appropriate result in the best interests of the child, rather than simply relying upon what the parties tell him/her.’208 Division 12A sets out a series of principles, duties and powers to be applied in decision making in children’s matters that were intended to militate against adversarialism in the way that children’s matters are conducted in the family law courts. As Harrison explains, Division 12A reflects developments that were instigated in the FCoA in 2004 through the development of the Children’s Cases Program, which was motivated by a ‘growing concern that the traditional adversarial system of determining disputes (albeit modified in children’s cases) had failed to provide the optimal method for determining children’s best

203 Parkinson and Behrens, above n 187, p 302, referring to the High Court’s decision in R v Watson: Ex parte Armstrong (1976) 136 CLR 248 in which ‘the High Court disagreed with Watson J when he described proceedings as not strictly adversarial’. 204 Jennifer McIntosh, The Children’s Cases Pilot Project: An Exploratory Study of Impacts on Parenting Capacity and Child Well-Being, final report to the Family Court of Australia, March 2006, p 4. 205 Practice Direction 1.2, subsequently No. 2 of 2004, and No. 3 of 2005. 206 McIntosh 2006, above n 204, p 6. 207 Alastair Nicholson, ‘Family Law Reform: How Much Real Reform Is Involved? Does It Take Us Forward or Backwards?’, an address to the ACT Council of Social Service, Canberra, 17 August 2006, p 22. 208 ibid., p 23.

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interests’.209 Harrison identifies a number of important features of the Children’s Cases Program approach (now reflected in Division 12A and Less Adversarial Trials), including the ‘power given to the presiding judge to determine how the hearing will be conducted, which includes what evidence is to be provided and how it is to be treated’, the way the process unfolds in steps (rather than a ‘climactic trial as in common law’), a less formal approach to the physical environment of the courtroom and an expanded role for family consultants (this part of the process is known as the Child Responsive Program).210 Under Division 12A, the following principles are intended to guide procedural decisions about children’s matters: s 69ZN: Principle 1: 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: The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Principle 3: The third principle is that the proceedings are to be conducted in a way that will safeguard: (a) (b)

the child concerned against family violence, child abuse and child neglect; and the parties to the proceedings against family violence.

Principle 4: 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. Principle 5: 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.

Further, the legislation imposes a series of general duties on courts, consistent with the principle that the court is to be proactive in the management of children’s matters. Thus, section 69ZQ(1) provides that a court must: (a) (b) (c) (d) (e)

decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and decide the order in which the issues are to be decided; and give directions or make orders about the timing of steps that are to be taken in the proceedings; and in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and make appropriate use of technology; and

209 Margaret Harrison, Finding a Better Way: A Bold Departure from the Traditional Approach to the Conduct of Legal Proceedings, Family Court of Australia, Canberra, 2007. 210 ibid., pp 50–4. Separate evaluations of the two phases of the CCP were conducted. The Child Responsive Program, which is the term applied to the phase involving family consultants, was evaluated by Jennifer McIntosh, The Children’s Cases Pilot Project: An Exploratory Study of Impacts on Parenting Capacity and Child Well-Being, final report to the Family Court of Australia, March 2006. The legal phase (LAT) was evaluated by Rosemary Hunter, ‘Child-Related Proceedings under Pt VII Div 12 A of the Family Law Act: What the Children’s Cases Pilot Program Can and Can’t Tell Us’ (2006) 20 Australian Journal of Family Law 227.

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(f ) (g) (h)

if the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and deal with as many aspects of the matter as it can on a single occasion; and deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.

Powers accorded to judges include the power to make determinations, findings and orders at any stage of proceedings (section 69ZR) and to ‘designate a family consultant as the family consultant in relation to the proceedings’ (section 69ZS). Courts are also given duties and powers relating to evidence (section 69ZX). These are significant. Most of the provisions of the Evidence Act 1995 (Cth) which would operate to exclude evidence do not apply (section 69ZT(1)), and a ‘court may give such weight (if any) as it thinks fit to evidence admitted’ as a consequence of this provision (section 69ZT(2)). The FLA provisions setting out the role of family consultants (FLA Part III) also play a significant role in shaping how each court approaches case management and draws on social science expertise in the course of proceedings. A significant change to the way family consultants operate occurred in 2006, when provisions making all of their dealings with families reportable (not confidential) were introduced (section 11C). As noted earlier, this change underlines a shift in focus from what was initially conceptualised as a partly therapeutic role to an effectively forensic function post-2006. Under section 11F, courts have the power to order that parties (subsection (a)) and children (subsection (b)) attend an appointment (or a series of appointments) with a family consultant. Under these orders, family consultants meet with the parties, and potentially the children, and provide an initial assessment of the family to the court. Under section 62G, the court also has the power to order a family report ‘on such matters relevant to the proceedings as the court thinks desirable’ (subsection (2)). Since 2006, in preparing a section 62G report, family consultants are obliged to ‘ascertain the views of the child in relation to the matter’ (section 62G(3A)(a)) and ‘include the views of the child on that matter’ in the report (section 62G(3A)(b)). Children are not obliged to express views (section 60CE) and the family consultant has the discretion to not ascertain the view of the child (section 62G(3B)) if they form the view that to do so would be inappropriate because of the age or maturity of the child or because of some other ‘special circumstance’. Family reports are admissible as evidence in court, as are all family consultant dealings with families, and family consultants may be called to give evidence and be cross-examined on their conclusions about the family. Family reports may be court funded, self-funded by the parties or funded by Legal Aid. Family reports are treated as one piece of evidence in any particular matter and given the weight the judicial officer considers appropriate in the context of all the evidence in any particular proceeding (Hall and Hall (1979) FLC 90-713). Each of the courts has slightly different approaches to the way that family consultants are used; however, all of these approaches involve the capacity to request initial assessments from a family consultant supported by fuller reports as a matter progresses. Family consultants are involved in the FCoA’s parenting matters process through the Child Responsive Program (CRP), which involves the application of an initial screening and assessment process, ahead of the legal process conducted under the Less Adversarial

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Trials principles referred to earlier. The CRP is based on the same principles as the childinclusive dispute resolution approach discussed at 7.5.1.4 and it also includes an explicitly educative component aimed at supporting parents to understand the impact of separation and conflict on children.211 During the trial, the judge may draw on the expertise of the family consultant to ‘provide evidence based on the and the parents’ issues assessment and to provide a broader social science perspective on the issues raised by the parties and their lawyers’.212 In the FCCoA, matters are dealt with under a docket system (the FCoA also operates on a docket system), which is intended to support active and consistent case-management by the same judge during the course of a matter.213 The FCCoA has access to a pool of in-house family consultants who may provide a brief report at the start of the proceedings and a fuller report (a family report) as proceedings progress. Family reports may also be provided (as can also occur in the FCoA) by so-called Regulation 7 family consultants,214 who provide services as sub-contractors rather than employees and are engaged to do so under the Family Law Regulations (Regulation 7). Where orders are made for parties to see a family consultant under section 11F, the family consultant provides a brief report (a memorandum) to the court that sets out their views on the status of the matter and to provide recommendations for the way a matter should progress. The family consultant may also be able to ‘assist the parties to reach a agreement’ at this point or to make referrals to other services and programs.215 After this initial contact, two further ‘preliminary assessment’ services may be offered.216 These are (1) a Child Dispute Conference where each party is seen individually so that risk assessment may take place and a further step may involve a joint meeting with the consent of the parties, and (2) a Child Inclusive Conference which involves the child being interviewed in addition to and separately from the parents. Where a family report is ordered, the process is described in this way: The process involves the report writer interviewing each of the parties and the children, and any other people significant in the lives of the children. The report writer will also observe interactions between the children and each of the parties. The report writer will then prepare a written report for the Court on matters including the issues in dispute, the past and current parenting arrangements, the parenting capacities of each of the parties, and the children’s wishes and views, and any other matters specifically included in the order. Based on their assessment, they will make recommendations to the Court as to the parenting arrangements that are likely to be in the best interests of the children.217

211 Family Court of Australia, Less Adversarial Trial Handbook, Family Court of Australia, Canberra, 2009, , 28 April 2014. 212 ibid. 213 Federal Circuit Court, above n 111. 214 These professionals are registered as family consultants under reg 7 of the Family Law Regulations 1984; FLA s 11B. 215 Federal Circuit Court, above n 111, p 9. 216 ibid. 217 ibid., p 19.

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7.6.2 Magellan A significant development that pre-dated the development of the Children’s Cases Program was the piloting ( June 1998 – December 2000) and implementation of the Magellan case-management system that aims to provide a case-managed and coordinated approach to resolving matters involving allegations of sexual abuse or serious physical abuse. This initiative was intended to address the difficulties (referred to in Chapter 3) that arise in matters involving serious allegations of physical of sexual abuse—especially stemming from the potential for multiple agencies, including the family law courts, child protection departments and police to be involved with a family where these issues have been raised. In light of concerns that such matters were not being resolved expeditiously, the FCoA introduced a pilot program, Project Magellan, to apply to ‘a selected 100 residence and contact cases involving allegations of serious physical and or sexual abuse drawn from the Melbourne and Dandenong Registries of the Court in Victoria’.218 The pilot program ran between June 1998 and the end of 2000, with a formative evaluation conducted by Thea Brown and colleagues. A national roll out of the program began in July 2003, and was completed during the 2004–05 financial year.219 Magellan is supported by agreements between the FCoA, legal aid commissions and state and territory child protection departments. These agreements mean that each Magellan case has an ICL funded for the duration of the proceedings and that child protection departments provide a ‘Magellan report’ within a specified time-frame to inform the court about the department’s involvement with the child.220 A further evaluation of Magellan was conducted by Daryl Higgins in 2006–07 to assess whether Magellan was meeting its objectives. This evaluation highlights a number of positive outcomes of Magellan, including shorter resolution timeframes, fewer court events, fewer judicial officers involved in each case and a higher chance of a matter resolving prior to trial. Higgins characterises Magellan as sitting: [A]mong a complex set of expectations, the intersection of a range of agencies and systems involved in responding to issues of child abuse allegations in family law matters … it was this ‘black spot’ intersection that necessitated a case-management system to co-ordinate and bring together information from each of these areas to ensure that private family law disputes are resolved in a timely way that provides for the safety and ongoing best interest of children.221

The resource-intensive Magellan process is applied in a very narrow band of cases. In recent years, between 268 (2008–2009) and 141 (2012–2013) Magellan cases were started in the FCoA annually. This is very small when considered as a proportion of all parenting applications: the wider context for the 141 Magellan cases started in 2012–13 is a total 218 Thea Brown with Rosemary Sheehan, Margarita Frederico and Lesley Hewitt, Resolving Family Violence to Children: The Evaluation of Project Magellan, A Pilot Project for Managing Family Court Residence and Contact Disputes When Allegations of Child Abuse Have Been Made, Monash University, Melbourne, 2001, p v. 219 Family Court of Australia, Annual Report 2004–2005, Family Court of Australia, Canberra, 2005, p 4. 220 Daryl Higgins, Co-Operation and Co-Ordination: An Evaluation of the Family Court of Australia’s Magellan Case-Management Model, Family Court of Australia, Canberra, 2007. 221 ibid, p 18.

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of 1423 final order applications in matters involving children (924 parenting applications only and 399 parenting and financial applications) filed in the FCoA222 and the 17,364 final order applications filed in the FCCoA, 54 per cent of which involved children only and 11 per cent of which involved children and property.223

7.6.3 Participation of children and young people in court processes The rationales for supporting the participation of children and young people in decisions about their care were discussed at the start of this chapter. The mechanisms for doing this in FDR processes have been discussed in the preceding section. In this section, we consider the ways in which child engagement occurs in court processes. In addition to the provision specifying that an object of Part VII of the FLA is to give effect to CRC, Part VII contains a range of other provisions relevant to the question of child focus. Children’s views are one of the ‘additional considerations’ that guide decision making of what orders might be in a child’s best interests and the court is obliged to consider any views the child has expressed (section 60CC(3)(a)). Children are not required to express any views, however (section 60CE). There are three main and potentially overlapping ways that children and young people may have direct involvement in the court process. First, in some circumstances, an independent children’s lawyer (ICL) may be appointed to represent the child’s best interests, usually involving cases where there is family violence and/or child abuse. Where children express a view, ICLs are required to put that information before the court (section 68LA(5)(b)). ICL appointments are made in about a third of parenting matters, and recent research has examined ICL practices in some depth and is discussed further below. The second way children may have direct involvement in the court process is through family consultants, who in most circumstances are required to speak with the child, ascertain their views and inform the court of their views: section 62G(3A) and (3B) (see above 7.6.1). There is a dearth of empirical evidence available on practice and children’s experience in this context. The third way, which rarely occurs in the Australian context, is through judicial interviews.224 There are three other avenues for child involvement that are also rarely applied. In theory children can give evidence with the leave of the court.225 Children may also be a party in a case, though this is very unusual and would occur through a guardian ad litem (a litigation guardian).226 Finally, they may also intervene in proceedings through a guardian ad litem.227 222 Family Court of Australia, Annual Report 2012–2013, Family Court of Australia, Canberra, 2013, pp 42, 59. 223 ibid., pp 5, 7. 224 For a discussion on judges’ views on meeting with children see Michelle Fernando, ‘What Do Australian Family Law Judges Think about Meeting with Children?’ (2012) 26 Australian Journal of Family Law 51, 77. Fernando notes that two sets of court practice directions providing for judges to meet with children have been revoked but that discretion to do so nonetheless exists. A recent example of where a judge chose to speak with a child subject to proceedings is in Cannon & Acres [2014] FamCA 104. 225 Under s 100B of the FLA, a child must not swear an affidavit, be called as a witness, or remain in court during the proceedings unless the court orders otherwise. This discretion is rarely exercised: Bryant, above n 166, p 135. 226 ibid., p 134. Under FLA s 65C(b), a child can apply for a parenting order. 227 Section 92 FLA, pt 6.3 of the Family Law Rules; RCB as Litigation Guardian of EKV, CEV, CIV and LRV and the Hon Justice Colin Forrest [2012] HCA Trans 178 (7 August 2012).

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Legislative provisions articulating the role of the ICL were enacted in 2006, and essentially codified pre-existing case-law principles. One of the significant aspects of these principles is the role of the ICL as a best interests representative. This means that the child is not their client and that ICLs have an obligation to advocate best interests outcomes rather than acting on the child’s instructions (section 68L, section 68LA(2), section 68LA(4)). Like family consultants, ICLs may speak to children to ascertain their views (section 68L(5)); however, they also have the discretion not to do so on the basis of the child’s age or maturity or ‘some other special circumstance’ (section 68LA). Other duties include (section 68LA(5)) acting impartially with the parties to the proceedings, ensuring any relevant views expressed by the child are fully put to the court, analysing documents and putting their significant elements before the court, minimising trauma to the child in relation to the proceedings and facilitating agreement in the proceedings. ICLs are not obliged to disclose to the court matters that the child communicates to them (section  68LA(6)), unless the ICL forms the view that such a disclosure is warranted in the best interests of the child (section 68LA(7)). At a conceptual level, empirical studies on Australian family law discourses about child participation have revealed two main philosophical approaches. One approach, described by Patrick Parkinson and Judy Cashmore as the protectionist approach,228 is concerned with shielding children from the conflict between their parents and minimising the direct involvement of children in family law proceedings. This approach is an underlying justification for practitioners such as ICLs and family consultants not speaking with children. The other approach, conceptualised in various ways, including by Nicola Ross as a child’s rights approach,229 views the child as having a legitimate interest in influencing the proceedings and their outcomes, on the basis that it is their lives and interests that are at issue. These two approaches are situated within a range of views and practices, both legal and sociological in character, that adopt significantly varying constructions of children and young people and their capacity, needs and interests in disputes between their parents. Fundamental questions that arise in relation to these constructions are whether family law disputes are between parents or about children: the former construction supports a protectionist approach and the latter a child rights approach. Although there is evidence that a child’s rights approach is gathering momentum, it remains emergent rather than achieving dominance. On the basis of a comparative perspective informed by research based on interviews with legal practitioners who represented children and young people in criminal jurisdictions, child protection and family law jurisdictions, Nicola Ross observes that ‘a discourse of children’s rights that would support children’s participation was in its infancy in the family courts’.230 She observed different practice orientations, drawing on earlier analyses of lawyers’ ethical positions by Christine Parker and Adrian Evans,231 among family law ICL practitioners, which she characterised as 228 Parkinson and Cashmore, above n 45. 229 Nicola Ross, ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26 Australian Journal of Family Law 214. 230 ibid., p 239. 231 Christine Parker and Adrian Evans, ‘Alternatives to Adversarial Advocacy’ in C Parker and A Evans, Inside Lawyers’ Ethics, Cambridge University Press, Port Melbourne 2007.

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either ‘responsible’ or ‘relational’. ‘Responsible’ lawyering was the dominant approach and involved an emphasis on the ICL role as an independent best interests advocate and an officer of the court. ‘Relational lawyers’ followed the same principles as ‘responsible lawyers’, with an additional emphasis on child participation rights ‘focused on a responsibility to children (even though they are not the ICLs’ clients), their families and relationships’.232 Recent research examining the role of ICLs from multiple perspectives, including those of parents and children, in parenting matters has highlighted considerable complexity surrounding the question of participation, children’s views and how they are put to the court.233 The AIFS ICL Study identified three main ICL functions: supporting participation, gathering evidence and playing an ‘honest broker’ role in influencing the trajectory of the litigation and attempting to bring about settlement. All the professional groups involved in the research placed a much lower level of emphasis on the significance of the ICL role in supporting participation of children and young people compared with the significance accorded to evidence gathering, litigation management and settlement fostering. ICLs themselves placed the least level of emphasis on participation functions. In part, this reflects the historical development of the ICL role: when the function first started to be articulated in case law (fleshing out FLA section 65 providing for ‘separate representation of a child’) it was known as the ‘separate-representative’ and was conceived very much as the court’s assistant (one decision framed the role as similar to counsel assisting a Royal Commission: In the Marriage of Bennett v Bennett234a. These developments preceded Australia becoming signatory to CRC. The influence of CRC started to be evident in case law from around 1994, with the decision in Re K 234b outlining the circumstances in which a ‘separated representative’ should be appointed and what their functions were. Recognition of the importance of supporting child participation is increasing, but practice remains uneven in this respect. The findings of the AIFS ICL Study show that the ICL role is valued by professionals, especially judges, and that their evidence gathering and litigation management functions are accorded particular significance.235 A further important finding of the research is that their participation function is complex and contested and that varying approaches to this function are evident among ICLs. The research acknowledges that participation is multifaceted, and may involve three main elements: familiarisation of the ICL and the child; explanation of processes and potentially outcomes; and consultation on views, outcomes and processes. It describes two orientations among ICLs: a high participation orientation among a minority of ICLs where facilitating children’s participation is seen as a core function and undertaken for all three purposes and a cautious orientation to facilitating children’s participation, which is dominant. The cautious orientation to participation sees 232 Ross, above n 225, p 225. 233 Kaspiew et al., 2013, above n 10. 234a In the Marriage of Bennett v Bennett (1991) 17 Fam LR 561. 234b Re K (1994) 17 Fam LR 537; Bryant 2006 above n 166; Kaspiew et al., 2103, above n 10, p 4. The explanation of the role of case law was augmented by Guidelines for Child Representatives developed by a FCoA-auspiced committee, which have had several iterations. 235 Kaspiew et al., 2013, above n 10; Chapter 3.

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this as a function to be carried out in collaboration with, or in some instances mainly by, family consultants or other social science experts. Cautious orientation ICLs do not have direct contact with children and young people on a frequent basis and are particularly concerned about direct contact for consultation. A range of justifications is raised for the cautious orientation. These include concern about a lack of training and disciplinary expertise in eliciting and interpreting children’s views, concerns about subjecting children to too much engagement with professionals (systems abuse) and a concern that they may receive a disclosure that would mean they would have to cease acting in the matter and be a witness in the proceedings. The potential for negative repercussions to arise from ICLs taking a cautious approach with children and young people was also revealed in the AIFS ICL study. Interviews with parents/carers (n = 24) and children/young people (n = 10) who had been involved in a matter with an ICL yielded accounts of mainly negative experiences with ICLs.236 Although a couple of parents, and one young person, reported largely positive experiences, these were the minority in the small qualitative sample involved in this aspect of the research. The main sources of disappointment were a lack of meaningful contact between the ICL and the children and young people in the case and unmet expectations about what the ICL would do to support child participation and ensure the court understood the child’s perspective. Importantly, all of the children interviewed had been involved in matters where their safety—broadly defined to mean physical or emotional safety—was at risk. In several cases parents raised concerns about ICL’s competence that were consistent with concerns raised by professionals, focusing on a lack of impartiality and rigour in the way the ICL role was discharged. While professional approaches to engaging with children in such circumstances have traditionally reflected significant caution for the reasons underpinning the cautious participation orientation outlined above, the AIFS ICL research concludes that the interviews with children: suggest they have an acute need for someone to be looking after their interests in, and facilitating their understanding of, the processes affecting them, particularly in circumstances where safety concerns and family law proceedings are unfolding in parallel.237

The functions that professionals place emphasis on—litigation management and evidence gathering—had little visibility for parents and especially children. In conclusion, this section of the chapter has examined court processes in parenting matters. The FCCoA hears the vast majority of parenting matters with a much smaller proportion being heard in the FCoA. A significant procedural shift initiated by the FCoA through the Children’s Cases Program and consolidated with the enactment of Division 12A of Part VII in 2006 has seen judges accorded a range of powers and duties that support a pro-active and less adversarial approach to managing children’s cases. Pre-dating this was a move to specialisation for matters involving allegations of sexual abuse and serious physical abuse in the FCoA through the Magellan program. This resource intensive process is applied 236 ibid., chapter 8. 237 ibid., p 166.

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in a small proportion of cases in part to ameliorate the practical problems the constitutional division of powers between state and territory and federal levels of government pose when family law matters also involve child protection issues. Both family consultants and ICLs may have direct engagement with children and young people in court processes. Although the empirical evidence base on the practices of ICLs is growing, there is little research on family consultants, the impact of their practices on children and the ways in which the practices of family consultants and ICLs may overlap or complement each other. Overall, the existing evidence suggests a lack of philosophical and practical coherence in the way child participation is currently approached in children’s matters, although efforts to move towards more child-focused processes are evident.

7.7 Ongoing support The question of the extent to which parents are offered support by family law system services that extends beyond making their initial parenting arrangements has been the subject of long-standing local concern. The Pathways Report considered that one of the key functions of a family law system should be ‘ongoing support, comprising services that are available immediately after separation and following initial decision making,’238 whether decisions were made by the parents themselves or by a court. In particular, the report recommended that: flexible community support services be available following the handing down of court decisions about parenting arrangements and to assist with future resolution of difficulties arising from changing family circumstances, acknowledging that some families may need these supports intermittently over an extended period.239

The Every Picture Report also made recommendations for education and supportive services to promote shared parenting after separation.240 The need of this kind of ongoing support is indicated particularly clearly by recent research findings on the extent to which conflict, negotiation and reconsideration of parenting arrangements continue well beyond the post-separation period for some families.241 In recent years, two services aimed particularly at providing support for the implementation of parenting arrangements, Children’s Contact Centres and the Parenting Orders Program (POP),242 have expanded. There is also a range of other services funded by the Federal Government that may assist separated parents in this phase. They include FRCs, Post Separation Cooperative Parenting programs (delivered through FRCs and other family services), the Supporting Children after Separation Program,243 and Family Relationships Pathways Report, above n 6, p 21. ibid., Recommendation 15.2, p 65. Every Picture Report, above n 7, Recommendation 7. Qu et.al., 2014, above n 10, p 63. The Contact Orders Program was piloted in 1999 and evaluated between 2000 and 2002: Commonwealth Attorney-General’s Department, The Contact Orders Program: A Summary of the Independent Evaluation of the Contact Orders Pilot, Australian Government Publishing Service, 2003. The program was intended to help families undergoing separation to manage child contact arrangements and orders. The evaluation concluded that it has many positive benefits and should be continued and ‘strategically expanded’. 243 For a discussion of these services see Morag McArthur, Lorraine Thomson, Merrilyn Woodward, Justin Barker, Megan Layton and Gail Winkworth, Evaluation of the Supporting Children after Separation Program and the Post Separation Cooperative Parenting Program, Institute of Child Protection Studies, Canberra, 2011. 238 239 240 241 242

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Counselling. Other relevant services include Men’s Line Australia run by Crisis Support Services Inc, which aims to provide relevant and accessible telephone counselling and referral services to men who are seeking to manage their relationships with partners, ex-partners and children, particularly following divorce or separation.244 Guidance in relation to the post-settlement or post determination phase is also present in Part VII of the FLA. A court making an order under Part VII is required to inform parties ‘about the family counselling services, FDR services and other courses, programs and services available to help the parties adjust to the consequences of that order’ (section 62B). A parenting order may require the parties to consult with an FDR practitioner to assist with resolving disputes about the order or reaching agreement about changes to the order (section 64B(4A)). A court making a parenting order can require the parties’ compliance with the order to be supervised by a family consultant, and can require a family consultant ‘to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order’ (section 65L). A court may also ‘make an order directing a party to the proceedings to attend a postseparation parenting program’ (section 65LA).245 Two of the more common services used to support the implementation of agreed or court-ordered arrangements are the POP and Children’s Contact Services (CCSs). POPs are offered in 20 locations, with the number of funded services receiving a boost as part of the 2006 family law reforms. These programs are intended to assist parents ‘in high conflict’ to work out and manage their parenting arrangements and services are provided to both parents and children.246 They apply child-focused and child inclusive approaches (see 7.5.1.4) in providing counselling, education and mediation as well as referrals. Host organisations may charge a fee for service but they may not refuse to provide services because of an inability to pay. In the past three years the number of clients of POP services recorded in administrative records has grown from 8,457 in 2010–11247 to 11,301 in 2012–13248 but there is little empirical evidence publicly available on how these services operate or client experiences of them. CCSs have become an increasingly important part of the family law system in Australia and overseas249 in parallel with policy developments designed to ensure that parent–child (particularly father–child) relationships are sustained after separation. These centres may provide direct supervision for parent–child contact visits that occur at the centre and are continually supervised in a child-friendly environment or they may provide a supervised neutral handover point for visits that occur away from the centre. The aims and objectives of the federally funded services have been described as being: 244 . 245 A ‘post-separation parenting program’ is defined in s 4. Conditions for providers of post-separation parenting programs are set out in s 65LB. 246 Department of Families, Housing, Community Services and Indigenous Affairs, Family Support Program, Family Law Services, Part C: Parenting Orders Program, Family Support Program Guidelines, 2012. 247 Attorney-General’s Department, Annual Report 2010–2011, Attorney-General’s Department, Canberra, 2011. 248 Attorney-General’s Department, Annual Report 2012–2013. Attorney-General’s Department, Canberra, 2013. 249 Grania Sheehan and Rachel Carson, ‘Protecting Children’s Rights in Contact Disputes: The Role of Children’s Contact Services in Australia’ (2006) 44 Family Court Review 412, 412.

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to assist families to move, where possible, to self-management of contact arrangements, both in terms of changeover and unsupervised contact. Children’s Contact Services must ensure that the children’s best interests are kept at the centre of the contact process. Services should only accept cases after careful assessment and where they consider that their facilities and resources allow them to deliver services that are safe and appropriate for all parties.250

In recent years, it appears that information about parent–child interactions in CCSs have increasingly been sought for court proceedings as they provide a source of independent insights into the nature of the parent–child relationship.251 Australia has 65 of these centres funded by the Federal Government and anecdotal evidence indicates that there may be a growing number of privately operated services that aren’t subject to regulation or scrutiny.252 Administrative data show that the number of clients using the 65 government funded centres increased from 38,163 in 2010–2011 to 50,573 in 2012–13. CCSs play a particularly important role in cases where there is family violence, child abuse, or allegations of such, but where parenting time has been ordered or agreed to nonetheless.253 So, for example, if a court has made a finding that there is an unacceptable risk to a child of unsupervised parenting time, it may be willing to order supervised time, particularly at a CCS. ‘Contact services are thus seen by courts in Australia as a way of balancing the rights of children to have regular contact with both parents and the need to be protected from harm.’254 To some extent, then, they have enabled courts to make orders for parenting time, especially at an interim stage, which they would not have made in the absence of such a service. There is minimal recent research on the operation of CCS services, including the important questions of how they support families moving to ‘self-management’ and the impact on each parent and the children of contact arrangements occurring in this way. One study published in 2005 found that children’s contact centres were seen as a way of balancing children’s right to regular contact with the need to be protected from harm.255 In light of an increased demand for CCS services, the Attorney-General’s Department instigated a consultation on the role of CCS and whether some functions—such as providing supervision for handovers—could be performed by other services.256 The documents associated with consultation focused on these questions about CCS operation: how high waiting times could be reduced and how case prioritisation should occur; whether standardised protocols should be developed for providing guidance about 250 Department of Families, Housing, Community Services and Indigenous Affairs, Family Support Program, Family Law Services, Part C: Children’s Contact Services, Family Support Program Guidelines, 2012. 251 Attorney-General’s Department, Children’s Contact Services—Consultation Paper Part 2; Children’s Contact Services—Consultation Paper 6, Attorney General’s Department, Canberra. 252 Fitzgerald and Graham 2011, above n 48. 253 ibid., p 488. 254 ibid. 255 Grania Sheehan and Rachel Carson, ‘Protecting Children’s Rights in Contact Disputes: The Role of Children’s Contact Services in Australia’ (2006) 44 Family Court Review 412, 412. 256 Attorney-General’s Department, Children’s Contact Services—Consultation Paper Part 2, above n 251.

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who should receive services and when they should be withdrawn; the conditions under which supervised contact should be withdrawn and when supervised contact on a long-term basis might be appropriate; whether there should be a parallel service available on a fully self-funded basis; whether there should be a mandatory accreditation system for CCS centre staff; the impact the CCS environment has on children’s wellbeing; and the focus of future research.257 At the time of writing, it was unclear what policy action would follow the consultation.

7.8 Conclusion In charting the procedural territory of parenting disputes, the discussion in this chapter further develops some of the important themes in this book. Consistent with the evidence discussed in Chapters 5 and 6, the context for the application of family law system processes is a spectrum of families, including a majority who seem to sort out their parenting arrangements with little use of the system and little difficulty. Other sub-groups in the separated population of families make greater use of the system to varying extents and with some repetition. The evidence now available establishes clearly that significant proportions of families who use both FDR and court processes are characterised by substantial complexity, including family violence, child safety concerns, negative interparental relationships, mental ill-health and substance misuse, with these factors alone or in combination. As practice in the post-2006 family law system has developed, it has become increasingly obvious that the complexity of system users poses significant challenges for services, professionals and agencies across the system. This is evident in many areas discussed in this chapter, including the way that FRC approaches have had to be adapted to accommodate a significant emphasis on screening and assessment for family violence and child abuse. One of the most significant practice and policy challenges in the contemporary environment is to understand and manage the parameters of matters suitable for FDR. The procedural distinction between cases involving family violence and child safety and those not involving these issues suggested in the framing of FLA section 60I is clearly not a distinction that is sustainable in everyday practice, as the data on the resolution of matters involving family violence demonstrate. Clearly, considerable complexity surrounds the clinical judgments that must be made about a matter’s suitability for FDR. The implications of inappropriate practices in this regard are serious, and may include inappropriate and potentially dangerous negotiated outcomes, and families being shuttled from one service to another, in addition to the inappropriate application of resources to matters not amenable to resolution through non-court based processes. A significant issue in this regard is the changed legal environment in which practice is occurring after 7 June 2012: the question of whether the amendments described in Chapter 6 and examined more comprehensively in Chapter 8 change the decisions made about whether or not a matter is litigated and on what basis they are settled if not litigated has yet to be answered. 257 ibid.

258 AUStralian FAMILY LAW: the contemporary context

A further theme highlighted in this chapter is that both legal and therapeutic approaches have a role to play, in parallel or in combination, in light of the evidence of the complexity of family law system users and the fact that the issues that they bring to services have elements that may be legal and social in character. A significant shift in the policy and practice environment since 2006 has been recognition of the necessity for legal and relationship support services to be capable of working together to ensure that clients’ needs are met effectively and expeditiously. At the same time, the evaluation of the CFDR pilot by Kaspiew and colleagues and Dimopoulos’s evaluation of the Geelong FCC FRC pilot shows collaborative work of this nature is intensive and challenging, not the least because of the necessity to develop inter-disciplinary understandings and ways of working. Perhaps the most significant challenge highlighted in this chapter concerns the interests of children and young people. Since 2006, some positive developments have occurred, including the development of child-focused and child inclusive family dispute resolution processes and moves to implement less adversarial court processes. However, there is little empirical evidence on which to base an understanding of the impact of child-focused and child-inclusive processes in FRCs. The period since 2006 has seen a shift in caseload in family law matters to the FCCoA, resulting in very few children’s matters being heard in the FCoA, under the Less Adversarial Trials process. Studies by Kaspiew and colleagues and Graham and Fitzgerald on the participation of children and young people in court and FRC processes respectively highlight a lack of coherence in the way that professionals approach participation and the way that parents and children and young people experience it. The recent evidence in this regard suggests that the philosophy and practice of participation in the Australian family law system can really only be considered as emergent. The following chapter examines how children’s needs are accommodated in the application of the substantive parenting provisions in Part VII, including the interpretation of the best interests principle.

CHAPTER

8

Framework and Principles for Decision Making in Children’s Matters 8.1 Introduction 260 8.2 Applying for parenting orders  261 8.2.1 Who can apply for parenting orders?  261 8.2.2 What are parenting orders?  261 8.2.3 Location and recovery orders  262 8.2.4 Where are applications filed?  263 8.3 How are parenting orders made?  263 8.3.1 Decision-making framework overview  263 8.3.2 Interim orders  265 8.4 The three-stage legislative pathway  269 8.4.1 Stage 1: The best interests of the child  270 8.4.1.1 The primary and additional considerations  270 8.4.1.2 The relationship between the ‘two tiers’  272 8.4.1.3 Interpreting the primary considerations  273 8.4.2 Stage 2: Applying the presumption of equal shared parental responsibility (ESPR) 292 8.4.2.1 What is ‘parental responsibility’?  292 8.4.2.2 Who has parental responsibility?  292 8.4.2.3 How does the presumption of ‘equal shared parental responsibility’ work?  293 8.4.3 Stage 3: (Shared) time arrangements under section 65DAA  297 8.4.3.1 Meaning of ‘substantial and significant’ time  298 8.4.3.2 Reasonably practicable  299 8.5 After court orders are made  301 8.5.1 Appeals 302 8.5.2 Variation 304 8.5.3 Enforcement 306 8.5.3.1 What is a contravention?  307 8.5.3.2 Reasonable excuse  308 8.5.3.3 Sanctions 309 8.6 Conclusion 310 259

260 AUStralian FAMILY LAW: the contemporary context

8.1 Introduction In this chapter, we examine the application of the legislative framework for the resolution of parenting disputes. As discussed in Chapters 5 and 6, the framework for resolving parenting disputes was substantially reformed by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (the 2006 amendments). In response to dissatisfaction among fathers about the amount of time they were able to spend with their children and strong support for shared parenting among other family law stakeholders, the new legislative framework introduced a presumption of equal shared parental responsibility (a broad term used to describe the ability to engage in major decision making), which was linked within the legislation to shared parenting time (which involves children living across two households, though not necessarily for equal time). Though the reforms did not include a presumption in favour of shared time, in this chapter we highlight the ways in which shared time has come to be encouraged over other parenting outcomes. The legislative framework created by the 2006 amendments is extremely complex. One of the first tasks for the Full Court of the Family Court of Australia (Full Court of FCoA) was to offer guidance regarding their interpretation and application. That guidance was provided in Goode v Goode1 (Bryant CJ, Finn and Boland J), a unanimous decision handed down soon after the amendments came into force, and has become known as the legislative pathway for making parenting orders. This chapter provides a detailed overview of the legislative pathway developed in Goode, focusing in particular on the interrelationship between the three key elements of Part VII: (1) the best interests of the  child test; (2) the presumption of equal shared parental responsibility (ESPR); and (3) the link between ESPR and the physical care arrangements for the child. As discussed (8.4.2.3), a key aspect of the legislative framework is that it ‘did not actually create a presumption of equal time, but it came close, because equal time (or substantial and significant time) was the only outcome that the court was specifically required to consider when ordering equal-shared parental responsibility’.2 A further key aspect is that although the legislative framework sets out a different approach to be taken in cases where there are allegations of family violence and/or child abuse from that taken in cases where there are not, the legislative pathway set out in Goode makes it very difficult to overcome the presumption of ESPR and/or secure an order for little or no time, except in the most extreme cases of violence.3 It is not yet clear what impact the 2012 family violence amendments (Chapter 5) might have on this pattern. 1 Goode v Goode [2006] FamCA 1346 (Goode ). 2 Bruce Smyth, Richard Chisholm, Bryan Rodgers and Vu Son, ‘Legislating for Shared-Time Parenting: Insights from Australia?’ (2014, forthcoming) 77 Journal of Law and Contemporary Problems. 3 Kaspiew’s empirically based analysis of the treatment of violence in litigated children’s cases prior to the 2006 amendments concluded ‘that a history of violence presents no barrier to contact unless it is extremely severe and has a firm evidential basis’ and that ‘connections between a history of violence and parenting capacity remain substantially unexplored except in extreme cases.’ The AIFS evaluation of the 2006 amendments also demonstrated that greater emphasis had been given to ‘meaningful relationships’ than protection from harm in litigated cases (evidenced by the increase in court ordered shared time arrangements post-2006 than pre-2006). Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112, 112; Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009.

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8.2 Applying for parenting orders As discussed in Chapter 7, parties can only apply for parenting orders if they have first made a genuine effort to resolve their dispute at a family dispute resolution (FDR) service (section 60I). Exceptions to this rule include applications for consent orders, urgent matters, and where there has been or is the risk of family violence or child abuse (section 60I(9)). The jurisdictional connection required for instituting proceedings related to children under the Family Law Act 1975 (Cth) (FLA) is addressed by section 69E and is discussed at 3.4.2.

8.2.1 Who can apply for parenting orders? The range of individuals who can file an application for parenting orders has expanded in recent decades. Courts now have the power to make parenting orders (section 65D) on application by either or both of the child’s parents (section 65C(a)), the child (section 64C(b)), a grandparent of the child (section 65C(ba)), or any other person ‘concerned with the care, welfare or development of the child’ (section 65C(c)). The scope of these provisions is wide, and is broadened further by section 64C, which states that a parenting order can be made in favour of a parent of the child or ‘some other person’. Applications by non-parents are discussed in detail at 9.5.

8.2.2 What are parenting orders? A parenting order is an order that deals with any aspect of parental responsibility for a child, with the main forms of those orders being about who can make major decisions in relation to the child (for example, regarding the child’s education, health and religious upbringing: Chapter 9), and with whom a child will live and the time a child is to spend with a parent or other person. For example, an order may be made that parents will have ESPR for a child and that the child will ‘live with’ one parent and ‘spend time’ (as stipulated in the orders) with the other parent. This terminology was intended to avoid the ‘winner/loser’ mentality of previous legislative regimes, but the lack of any obvious content or meaning in the terms now used makes them cumbersome. The legislation provides a non-exhaustive list of the types of issues a parenting order may deal with (section 64B(2)): (a) (b) (c) (d)

(e) (f ) (g)

the person or persons with whom a child is to live; the time a child is to spend with another person or other persons; the allocation of parental responsibility for a child; if two 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; the communication a child is to have with another person or other persons; the maintenance of a child; 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;

262 AUStralian FAMILY LAW: the contemporary context

(iii) (iv)

the process to be used for resolving disputes about the terms or operation of the order; any aspect of the care, welfare of development of the child or any other aspect of parental responsibility for a child.

Other orders that may be sought concerning children include a declaration of parentage (section 69VA)(Chapter 4)), location orders (sections 67J–67P), and recovery orders (sections 67Q–67Y).

8.2.3 Location and recovery orders A location order is designed to assist people with parenting orders locate the child the subject of the parenting order, where the child’s whereabouts are unknown to them. A location order may be directed either to an individual or to a government body, such as Centrelink, and will require the person to provide the registry manager of the court with information about the child’s location, which they either have at the time, or obtain during the life of the location order (section 67J).4 If the court decides it is in the children’s best interests, it can order that the child be returned to the applicant. Location orders directed to a government official are called Commonwealth information orders (section 67J(2)). It is an offence for information provided to the registry manager to be disclosed, except to certain officials (section 67P). Information may be disclosed to the legal advisor of the applicant for the order, with the leave of the court that made the location order (section 67P(1)(d)). These safeguards are important in protecting a victim of family violence, who may be hiding from a perpetrator and whose safety would be endangered by disclosure of their location to that perpetrator. A recovery order is designed to secure the return of a child who has been taken or moved within Australia. A recovery order may do a range of things, including requiring the return of a child to a parent or other person who has a parenting order in their favour, and authorising or directing various persons to provide assistance in the recovery of the child (section 67Q). A recovery order may be applied for by a person with whom the child is supposed to be living under a parenting order, a person with whom the child is to spend time or communicate, a person who has parental responsibility for a child, a grandparent, or any other person concerned with the care, welfare and development of the child (section 67T). In proceedings for a recovery order, the court may make such an order as it thinks proper (section 67U). However, section 67U is subject to section 67V, which directs that, in deciding whether to make a recovery order, a court must regard the best interests of the child as the paramount consideration. While section 121 protects the identity of participants to FLA proceedings and makes identification of a party, witness, or individual related to a party to proceedings a punishable offence, a court can make an order permitting publication of ‘a notice 4 Location orders stay in force for 12 months or such longer period, as the court considers appropriate (s 67N(4)).

CHAPTER 8: Framework and Principles for Decision Making in Children’s Matters 263

or report in pursuance of a direction of a court’ as an aid to location or recovery of children  who  have  been abducted or whose whereabouts are otherwise unknown (section 121(9)(d)).5

8.2.4 Where are applications filed? As for other FLA orders, most applications for parenting orders are filed in the Federal Circuit Court of Australia (FCCoA) (3.3). The FCoA deals with more consistently complex parenting matters, although the FCCoA’s caseload also includes many cases involving complicated circumstances. More complex cases include cases that involve a child welfare agency and/or allegations of serious sexual abuse, severe family violence or mental health issues, international child abduction under the Hague Convention, or special medical procedures. Consent orders can be sought by filing an Application for Consent Orders at a Registry of the FCoA (7.5.1.5.3).

8.3 How are parenting orders made? If parties have been unable to resolve their parenting dispute via the non-court based processes discussed in Chapter 7, they may file an application with the court. The remainder of this chapter discusses the decision-making framework for the resolution of such disputes.

8.3.1 Decision-making framework overview The 2006 amendments produced an extremely complex set of provisions for the making of parenting orders. Described by the Full Court (Faulks DCJ, Boland and Stevenson J) in Marvel & Marvel as ‘convoluted’6 and by Warnick J in Zabini & Zabini as ‘a dilemma of labyrinthine complexity’,7 the legislative pathway to be followed is not clear on the face of the provisions. The lack of clarity with regard to the appropriate legislative pathway has created a number of practical challenges for lawyers, judges, and families in the family law system. The most obvious one relates to widespread misunderstanding regarding what the provisions say about shared time. For example, Rick O’Brien, then deputy chair (now chair) of the Family Law Section of the Law Council of Australia, observed in 2010 that the complexity of the legislation had created a misperception among the general community that the 2006 reforms ‘somehow mandate equal shared time with children, or at the very least adopt that position as a rebuttable presumption.’8 The impact of this widespread misunderstanding has led to parties entering into agreements on the basis that one or both feel that ‘have no choice’ but to agree to equal time, or because they believe that failure to agree to equal time

5 6 7 8

Gillespie v Bahrin [1993] FamCA 54. Marvel & Marvel (No 2) [2010] FamCAFC 101, [87] (Faulks DCJ, Boland & Stevenson JJ) (Marvel). Zabini & Zabini [2010] FamCA 10, [3]. Rick O’Brien, ‘Simplifying the System: Family Law Challenges—Can the System Ever Be Simple?’ (2010) 16 Journal of Family Studies 264, 266.

264 AUStralian FAMILY LAW: the contemporary context

will lead to an adverse result in court (Chapter 6). In the case of disputes involving family violence, the lack of a clear legislative pathway has serious implications (Chapters 5 and 9). Despite the complexity of the 2006 amendments and the lack of a legislatively mandated approach, a common framework for determining parenting orders has emerged. First articulated by the Full Court in Goode9 (an appeal by the father against interim orders that the children live with the mother and spend time with the father), the ‘legislative pathway’ (as it has come to be known)10 sets out three related stages of analysis through which courts must proceed when making parenting orders.11 However, prior to engaging with the three stages, the Full Court indicated that, while the FLA does not specifically require it,12 identifying the competing proposals of the parties is the first step.13 The three stages, discussed in detail below, are: 1.

a best interests of the child assessment (section 60CC), with the objects and principles of Part VII (section 60B) informing the analysis;

2.

a determination of whether the presumption in favour of equal shared parental responsibility (ESPR) applies (section 61DA);

3.

a determination of the appropriate care arrangements (that is, parenting time, section 65DAA).14

It is notable that some decision makers undertake these steps in reverse and the Full Court has accepted and approved this divergent approach. In Starr & Duggan, the Full Court (Boland, Thackray and Watts JJ) indicated that the order of the three-stage analysis as outlined in Goode is recommended, but not mandatory, and that ‘a failure to follow what we see as a logical approach would not lead to an appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered’.15 In recent years, however, the order of analysis specified in Goode has become the predominant approach of the Full Court. A unanimous High Court, in considering the appeal in MRR v GR, also dealt with the stages in this order.16 While our summary of the legislative pathway outlined does not distinguish between cases involving family violence or child abuse and cases that do not, a distinction is in fact made on the face of the legislation where family violence or child abuse is present. Notably, the presumption of ESPR does not apply if there are reasonable grounds to believe 9 10 11 12 13 14 15 16

Goode v Goode [2006] FamCA 1346. SCVG & KLD [2014] FamCAFC 42, [71]. Goode v Goode [2006] FamCA 1346, [81]. Although in SCVG & KLD, the Full Court held that the requirement in Goode that the court identify the proposals of the parties does find its source in the Act; SCVG & KLD [2014] FamCAFC 42, [74] (Ainslie-Wallace, Ryan and Stevenson JJ). Goode v Goode [2006] FamCA 1346, [65]. The stages of analysis are summarised in Goode: Goode v Goode [2006] FamCA 1346, [81]. Starr & Duggan [2009] FamCAFC 115, [38], citing with approval Taylor & Barker [2007] FamCA 1246, [63]. See also Sealey v Archer [2008] FamCAFC 142. MRR v GR (2010) 240 CLR 461; [2010] HCA 4.

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that a parent of the child (or a person who lives with a parent of the child) has engaged in (1) 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 (2) family violence (section 61DA(2)). Absent the applicability of the presumption of ESPR, courts must proceed to a best interests analysis only. The Full Court held in Goode that the effect of this was to leave all options open to the court: When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.17

As discussed below, the effect of this interpretation has been that orders for ESPR and/ or shared time can still be made even where the presence of family violence or abuse renders the presumption inapplicable. This outcome is not uncommon.

8.3.2 Interim orders Interim orders are made where parents cannot agree on the arrangements for their children in the time between their application for orders and a final determination. Parties must have made an application for final orders in order to apply for interim orders. Interestingly, almost all of the key decisions regarding the legislative pathway for determining parenting disputes, including Goode and Marvel, were interim decisions. Given this, while our focus is on fully litigated matters, we consider interim orders first. Questions about the appropriate legislative pathway to follow at the interim stage have arisen for two main reasons. The first reason relates to a lack of fit between the complexity of the pathway and the practical constraints operating at interim hearings: interim orders are made following a hearing of no longer than two hours, and usually on the basis of affidavit evidence, with cross-examination of witnesses only allowed in exceptional circumstances.18 The second reason relates to the impact of the 2006 amendments on the sorts of interim orders that should be made, given pre-2006 case law to the effect that the child’s pre-separation living arrangements should normally be maintained. Specifically, in 1998 a unanimous Full Court (Ellis, Lindenmayer and Jordan JJ) had laid down some ‘relevant criteria for the determination of interim proceedings for residence and contact’ in Cowling and Cowling.19 These criteria emphasised the desirability of maintaining stability for the child at the interim stage, so that, where the evidence shows that: 17 Goode & Goode [2006] FamCA 1346, [65] (Bryant CJ, Finn and Boland JJ). 18 Family Law Rules 2004, rule 5.10. 19 Cowling & Cowling [1998] FamCA 19.

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the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary.20

Given the emphasis on meaningful relationships with both parents and shared care, the 2006 amendments prompted reconsideration of the approach in Cowling.21 This occurred in Goode,22 in which the Full Court concluded that ‘there are passages in Cowling that do not sit comfortably with the Act as amended’,23 in particular the passage referred to above. The Court concluded that: It can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s  60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).24

Goode thus indicated a shift in focus post-2006 away from preserving stability and towards preserving (and possibly extending, or creating in the case of very young children) meaningful relationships prior to final determination. Yet despite this rejection of the main aspect of the Cowling decision, the Full Court was concerned to stress that some of the statements made in that decision remained ‘apposite’:25 The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.26

20 ibid., [22]. 21 See Richard Chisholm, ‘Interim Proceedings after the Family Law Amendment (Shared Parental Responsibility) Act 2006’ (2006) 20 Australian Journal of Family Law 219. 22 Goode [2006] FamCA 1346. 23 ibid., [442]. 24 ibid., [443]. 25 ibid., [442]. 26 ibid. See also Lavender & Turner [2007] FamCA 182.

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Despite acknowledgement in Goode that the scope of the enquiry is ‘significantly curtailed’ in an interim application, the Full Court in Marvel confirmed that the legislative pathway remains the same for interim orders as it does for final orders.27 Even if the interim application raises only a limited issue, such as the time a child should spend with a parent without any reference to parental responsibility or equal time, the legislation mandates that the three-stage process still be followed. To do otherwise is an error of law.28 However, given the often limited information available at the interim stage, the court can conclude that applying the presumption of ESPR may not be appropriate in the circumstances of the case (section 61DA(3)).29 While the Full Court in Marvel warned that section 61DA(3) should not be applied in a ‘broad exclusionary manner’, it nonetheless recognised that it is ‘likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue.’30 The issue of what legislative pathway is to be followed at an interim hearing when there is already an order for ESPR in place was addressed in the unanimous Full Court decision of SCVG & KLD (Ainslie-Wallace, Ryan and Stevenson JJ).31 In SCVG, the court concluded that while the legislative pathway for interim orders remains the same as it does for final orders, the level of inquiry required will depend on the overall circumstances of the case. The parents in SCVG had been engaged in parenting litigation for over eight years in relation to their children who were aged 10 and 12 by the time of the Full Court decision. Their most recent final orders, made in 2010 by Altobelli FM, were for ESPR, that the children live with the mother, and that the father have substantial and significant time. Throughout the litigation, equal time had been consistently rejected as not being in the best interests of the child. When the mother sought interim orders to suspend contact on the basis of the father’s arrest for a number of offences for which he was later convicted, the father argued that Faulks DCJ, who had heard the interim matter, was required because of the existing order for equal shared parenting responsibility to consider an order for equal time under section 65DAA. The mother submitted that earlier courts had considered and rejected equal time and that it was therefore not necessary to revisit it where those findings and orders were not in issue. The question for the court was what the appropriate ‘legislative pathway’ should be in such a case. The Full Court noted that neither Goode nor Marvel addressed the application of section 65DAA in a case where an earlier final order for ESPR is to continue, equal time has previously been refused, and it is common ground that an equal time order would not be in the child’s best interests. It was therefore necessary to determine the issue. It was ultimately concluded that even where, in earlier proceedings, a court has ordered ESPR but rejected equal time, it is still necessary to reconsider section 65DAA. As the Court explained: [Section] 65DAA(1) operates ‘… if a parenting order provides (or is to provide) … that a child’s parents are to have equal shared parental responsibility for the child’. 27 28 29 30 31

Marvel [2010] FamCAFC 101, [106] (Faulks DCJ, Boland & Stevenson JJ). ibid., [108]. ibid., [107]. ibid., [107]. SCVG & KLD [2014] FamCAFC 42 (SCVG ).

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The use of both present and future tense demonstrates that the provision is triggered by an order already in existence, irrespective of whether that order was made in the current or earlier proceedings. The effect of this is that even if an earlier court has rejected a prior application for equal time or substantial and significant time, if another application for the same type of order is commenced, where there is an order for equal shared parental responsibility, section 65DAA must be addressed again.32

Though the Full Court rejected the mother’s submissions with regard to the appropriate legislative pathway required in interim hearings where a pre-existing order for ESPR is in force, it held that the trial judge had, in concluding via his section 60CC analysis that an order for equal time would not be in the children’s best interests, considered both section 61DA and section 65DAA. As the Court explained: In this case, equal time required scant consideration; such an order was not sought, there was no expert evidence that suggested equal time would be in the children’s best interests and his Honour’s findings made pursuant to section 60CC were such that it was open to him to find in accordance with section 65DAA(1) that equal time would be in the children’s best interests.33

Thus, the level of explicit inquiry required by the trial judge was diminished in that case, although no general guidance was offered regarding what is likely to suffice. While the legislative pathway for interim orders is identical to that required for final orders, where there are allegations of child abuse or family violence in interim proceedings, the court must meet a number of additional requirements. Section 67ZBB requires that where a notice has been filed under section 67Z(2) (child abuse) or section 67ZBA(2) (family violence) indicating an allegation that there has been, or there is a risk of, abuse or family violence, the court must (section 67ZBB(2)): (a)

(b) (c)

consider what interim or procedural orders (if any) should be made (i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and (ii) to protect the child or any of the parties to the proceedings; and make such orders of that kind as the court considers appropriate; and deal with the issues raised by the allegation as expeditiously as possible.

The court is required to take this action as soon as practicable after the notice is filed and ‘if it is appropriate having regard to the circumstances of the case—within 8 weeks after the document is filed’ (section 67ZBA(3)(b)). Under this new regime, which came into effect with the enactment of the Family Law Amendment (Family Violence) Act 2011 (Cth) (the 2012 amendments), decisions on interim matters in cases involving allegations of violence or abuse should be made more quickly than other interim decisions. However, serious concerns were raised prior to the 2012 amendments about the lack of resources available to judges making interim decisions and the inadequacy of screening in cases where family violence or abuse has been alleged (Chapter 5).34 The extent to which those concerns have 32 ibid., [91]. 33 ibid., [84]. 34 Richard Chisholm, Family Courts Violence Review, report to Attorney-General, 27 November 2009, pp 80–4, .

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been resolved (particularly given cuts to legal aid) is not yet clear.35 As Richard Chisholm has observed, ‘One of the greatest practical problems in cases involving family violence issues is what to do in interim cases.’36 A final issue raised by interim orders is the extent to which outcomes at the interim stage influence final orders. The influence arises largely from the fact that interim orders are usually in place for 12 months or more, creating a ‘status quo’ that may be perceived as difficult to overcome. This argument is bolstered by the requirement that the court, when assessing the child’s best interests, take into account the effect on the child of changes in circumstances (section 60CC(3)(d)). By contrast, section 61DB, added in 2006, requires that ‘[i]f there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order’. The impact of section 61DB appears minimal, however, given that most disputes about the status quo relate to the time a child has with a parent, not parental responsibility. It is clear from decisions such as Dicosta & Dicosta37 (discussed at 8.4.1.3.6) and Escott & Lowe38 that the status quo created by an interim order remains a relevant consideration at trial. In Escott, Rose J, making final orders, refused the father’s application to depart from interim parenting orders that he have substantial and significant time (which were already a dramatic deviation from the mother’s primary care of the parties’ two children, aged eight and six pre-separation) to an equal time arrangement on the basis that ‘the likely effect of changes in the circumstances of the two children’ would cause ‘significant difficulties’39 due to the combined effect of the children’s ‘young ages’, the mother’s role as their primary carer, and the parents’ ‘difficulties of communication and attitudes as well as parenting style’.40 There is no doubt, however, that, because of the legislative emphasis on the benefit of the child having a meaningful relationship with both parents, the weight to be given to interim parenting arrangements has, since the 2006 amendments, been diminished.

8.4 The three-stage legislative pathway As noted above, the legislative pathway for determining parenting orders consists of three stages: 1.

a best interests of the child assessment;

2.

a determination of whether the presumption in favour of equal shared parental responsibility applies;

3.

a determination of the appropriate care arrangements.

35 Jane Lee, ‘Family Court Children “Compromised” as Parents Represent Themselves’, The Age (online), 17 March 2014, . 36 Chisholm, ‘Family Courts Violence Review’, above n 34, p 80. 37 Dicosta & Dicosta [2008] FamCAFC 161. 38 Escott & Lowe [2007] FamCA 307. 39 ibid., [80]. 40 ibid.

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8.4.1 Stage 1: The best interests of the child The legislation requires that, in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration (section 60CA). Given that the best interests of the child inform every stage of the decision-making process, it is logical that this assessment should be the first stage in the decision-making framework for parenting orders. This point was emphasised in Goode where it was stated that throughout the three-stage process ‘the child’s best interests remain the overriding consideration’.41 The term ‘interests’ is defined in section 4(1) as including matters related to the care, welfare or development of the child. The definition suggests a concept having broad application, encompassing all matters relevant to the raising of child. Prior to the 2006 amendments, courts were required to consider a checklist of factors provided in the legislation when determining the child’s best interest, but no further guidance was given.42 Determining an individual child’s best interests on the basis of the checklist was a matter entirely for judicial discretion. The 2006 amendments curtailed this discretion by adding section 61DA—the presumption of ESPR—which requires that when a court is considering who will have parental responsibility in respect of a long-term issue, it is presumed that the child’s best interests will be served by responsibility being shared equally between the parents, subject to the presumption (1) not being applicable due to exceptions relating to family violence and child abuse; or (2) being rebutted by evidence that it would not be in the child’s best interests. When the court proposes to make an order for ESPR, discretion is further curtailed by the requirement to consider whether shared time is in the child’s best interests and reasonably practicable (section 65DAA), although the best interests requirement here illustrates the circularity evident in the legislation and the pathway. Further, prior to the 2006 amendments, the best interests criteria were presented as a list of relevant factors in no particular order. The 2006 amendments introduced a ‘two-tiered’43 list, which consists of primary considerations and additional considerations that must be taken into account in determining what is in a child’s best interests (section 60CC). The best interests criteria are to be read in light of the objects and principles underlying Part VII, which are located in section 60B. The mirroring of the section 60B objects in section 60CC suggests an intention to embed them into the decision-making process.

8.4.1.1 The primary and additional considerations The primary considerations, which reflect the first two objects in section 60B, are: 1.

the benefit to the child of having a meaningful relationship with both of the child’s parents; and

2.

the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

41 Goode [2006] FamCA 1346, [65]. 42 The checklist was found in s 68F of the pre-2006 FLA. 43 Patrick Parkinson, ‘Decision-Making about the Best Interests of the Child: The Impact of the Two-Tiers’ (2006) 20(2) Australian Journal of Family Law 179.

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The primary considerations, referred to by Brown J in Mazorski & Albright as the ‘twin pillars’,44 have attracted considerable analysis, most pertaining to the question of how the two primary considerations interact. In particular, how should the risk of harm be weighed up against the benefit of a meaningful relationship? A series of post-2006 amendment reviews and evaluations (Chapters 5 and 6) suggested that the lack of guidance with regard to the relationship between the two primary considerations was an important factor contributing to children being exposed to family violence.45 There was also sustained criticism of the notion that judges could ‘balance’ the competing effects of the primary considerations in cases of violence.46 For example, Richard Chisholm’s Family Courts Violence Review stated that the ‘twin pillars formula is not an ideal guide to children’s best interests’ and that the current law, ‘while it deals with protection against violence and abuse as well as the value of parental involvement … deals with the latter in more detail, and overall gives the impression that parental involvement is more important than protecting children and adults from violence and abuse’.47 As discussed in Chapter 5, these criticisms gave rise to section 60CC(2A), which was added by the 2012 amendments, making clear that the court ‘is to give greater weight’ to the need to protect children from abuse, neglect or family violence than to the benefit of the child having a ‘meaningful relationship’ with both parents. A mirror provision (section 60D(1)) applies to ‘advisors’ (defined in section 60D(2)). The additional considerations are set out in section 60CC(3) (Chapter 6). Initially, section 60CC(3) had included as an additional consideration—‘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’—or the so-called ‘friendly parent rule’.48 The Explanatory Memorandum accompanying the Family Law Amendment (Family Violence) Bill 2011, which removed this provision, referred to three major governmentcommissioned reports on the effects of the 2006 amendments all of which noted ‘the impact this provision had in discouraging disclosures of family violence and child abuse.’49 The Memorandum stated that each of the reports indicated that ‘parties were not disclosing concerns of family violence and child abuse for fear of being found to be an “unfriendly parent”’.50 The discouraging effect that the ‘friendly parent provision’ had on parents raising concerns about violence and abuse from 2006, until its removal five years later, was one 44 Mazorski & Albright [2007] FamCA 520, [3]. 45 See Dale Bagshaw, Thea Brown, Sarah Wendt, Alan Campbell, Elspeth McInnes, Beth Tinning, Becky Batagol, Adiva Sifris, Danielle Tyson, Joanne Baker and Paula Fernandez Arias, ‘The Effect of Family Violence on Post-Separation Parenting Arrangements: The Experience and Views of Children and Adults from Families who Separated Post-1995 and post-2006’ (2011) 86 Family Matters: Australian Institute of Family Studies Journal 49, 60; Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3, chapter 10. 46 See Zoe Rathus, ‘Shifting the Gaze: Will Past Violence Be Silenced by a Further Shift of the Gaze to the Future under the New Family Law System?’ (2007) 21 Australian Journal of Family Law 87; Donna Cooper, ‘Continuing the Critical Analysis of “Meaningful Relationships” in the Context of the “Twin Pillars”’ (2011) 25 Australian Journal of Family Law 33. See more generally Helen Rhoades, Charlotte Frew and Shurlee Swain, ‘Recognition of Violence in the Australian Family Law System: A Long Journey’ (2010) 24 Australian Journal of Family Law 87. 47 Richard Chisholm, above n 34, pp 129–30. 48 The former section 60CC(3)(c) was removed by the Family Law Amendment (Family Violence) Act 2011 (Cth). 49 Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3; Chisholm, ‘Family Courts Violence Review’, above n 34; Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Family Law Council, 2009. 50 Explanatory Memorandum to the Family Law Amendment (Family Violence) Bill 2011 (Cth), [32].

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of the key factors behind the 2012 amendments. However, given that encouragement to be a ‘friendly parent’ (that is, a parent who is seen to support the other parent’s ongoing relationship with the child) was strong before the 2006 amendments,51 this philosophy may remain influential despite the repeal of the provision.

8.4.1.2 The relationship between the ‘two tiers’ No guidance is provided in the legislation with regard to the relationship between the primary and additional considerations. However, as Dessau J indicated in M and S,52 the Explanatory Memorandum for the Family Law Act (Shared Parental Responsibility) Bill sheds some light on the distinction: The intention of separating the primary considerations from the additional considerations was to ‘… elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.’ The memorandum went on to explain that they were elevated as they deal with ‘important rights of children and encourage a child-focused approach’, although it was acknowledged that there may be some instances where the secondary considerations outweigh the primary ones. In the second reading speech in the Senate on 11 May 2006, it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to ‘draw appropriate attention to the objects’ provisions in a positive way’, and likely to assist in directing the court’s attention to those objects, ‘particularly in relocation cases’. That point, however, was not expanded upon further.53

Two points can be gleaned from Dessau J’s summary of the Explanatory Memorandum. First, the decision to elevate the primary considerations above the others was designed to make decision makers focus more on the objects of Part VII contained within section 60B. Second, it was clearly envisaged that the primary considerations would not always trump the additional considerations. The latter conclusion has been supported by the Full Court, which has consistently held that the legislation does not operate so that the primary considerations outweigh the additional considerations.54 Rather, all relevant considerations should be taken into account, with ‘particular emphasis’ being placed on the primary considerations.55 Indeed, a common approach is for the court to assess evidence in relation to the additional considerations first and then use the findings to assess the primary considerations. For example, in Escott and Lowe, Rose J observed that the two tiers are interrelated and that the findings of fact in relation to the additional considerations provide ‘the substratum of facts or factual platform’ for consideration of the primary considerations.56 Conversely, 51 Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112; Rae Kaspiew, ‘Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation’ (2007) 29(1) Sydney Law Review 131. 52 M & S [2006] FamCA 1408. 53 ibid., [33]–[34]. 54 Marsden & Winch (No 3) [2007] FamCA 1364, [76]–[78]; Aldridge v Keaton (2009) FamCAFC 229, [74]; Slater v Light [2011] FamCAFC 1, [45]; Champness & Hanson [2009] FamCAFC 96, [101]–[103]. 55 Marsden & Winch (No 3) [2007] FamCA 1364, [78]. 56 Escott & Lowe [2007] FamCA 307, [35].

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however, some judges choose to assess each factor in turn, beginning with the primary considerations and working through the list.57 In reality, taking the latter approach still tends to involve using findings with regard to the additional considerations to inform the making of findings as to the primary considerations. There has been considerable debate about the extent to which the division of the best interests considerations into two tiers has been useful. Patrick Parkinson has supported the bifurcated approach on the basis that the additional considerations simply ‘amplify’ the primary ones, and that there is little danger of inconsistency between them.58 Richard Chisholm, however, has criticised the approach on several bases.59 First, he has questioned the need for the two-tier approach on the grounds that the primary considerations are already given enough emphasis elsewhere, including section 60B. Second, he has argued that the approach downgrades the importance of children’s views, which appear only as an additional consideration. Third, he has argued that ‘it seems inevitable that the two-tier formulation will lead to confusion and legal complexity’. Finally, he suggests that the hierarchy is not soundly based, pointing out that: Rather than reflecting some coherent view about children and their needs, the formulation seems to reflect something quite different, namely a political desire to be even-handed between the two opposing adult views or concerns that have pervaded the public debate: the men’s concerns to stay involved with the children, and the women’s concerns that this may expose the children to violence.60

A number of submissions to the Senate’s 2011 inquiry into the Family Violence and Other Measures Bill 2011 recommended that the two tiers be abolished.61 These submissions argued that a single set of factors, where safety of children is the first consideration and given priority, would better serve the best interests of children. The two-tiered approach was also criticised on account of its complexity and the confusion it caused for parents, the judiciary, and family law professionals alike.62 Although the Senate report stated that ‘a large number of submissions’ recommended removing the two tiers, they were retained.63

8.4.1.3 Interpreting the primary considerations The two primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm. As discussed in Chapter 6, following the 2012 amendments, in 57 Melrose & Melrose [2010] FamCA 398; SCVG v KLD [2010] FMCAfam 641, [119ff ]; Hutley & Hutley [2012] FamCA 679. 58 Patrick Parkinson, above n 43. 59 Richard Chisholm, ‘The Family Law Amendment (Shared Parental Responsibility) Bill 2006: Putting Children at Centre Stage?’, paper presented at the Contact and Relocation: Focusing on the Children conference, convened by the Centre for Children and Young People, Southern Cross University, Byron Bay, May 2006. 60 ibid., p 7. 61 See, for example, the joint submission of John Dewar and Helen Rhoades, Submission 9; and that of the Family Law Council, Submission 113, Senate Legal and Constitutional Affairs Legislation Committee, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (August 2011). 62 John Dewar and Helen Rhoades, Submission 9 to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (August 2011). 63 Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (August 2011), p 76.

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applying the considerations, the court is to give greater weight to the consideration that children be protected from harm.

8.4.1.3.1 The benefit to the child of having a meaningful relationship with both parents The Act gives no guidance as to how to interpret the first of the primary considerations. In particular, the question of what is meant by a ‘meaningful relationship’ is left unanswered. One of the first cases to address the question was the Full Court (Bryant CJ, Faulks DCJ and Boland J) decision in McCall & Clark,64 which remains the leading authority. McCall was a parenting dispute concerning a four-year-old boy. The child lived with his mother in Dubai, which he had done since his parents had separated when he was six months old. The father lived in Brisbane. While the father had visited on several occasions he had never had the child stay with him overnight. The dispute arose because the mother wanted to remain with the child in Dubai, while the father wanted orders that he return to Brisbane. The matter came before Slack FM who was required to consider the benefit of the child having a meaningful relationship with his father. Focusing on the existing relationships between the boy and each of his parents, Slack FM held that ‘it is difficult to see how with that amount of time spent with his father that he could have developed a close emotional attachment to his father’.65 This led to the federal magistrate’s finding that he ‘could not reach a conclusion that the child has a significant emotional attachment to his father at the present time’.66 An order was made for ESPR, but it was ordered that the child live with his mother in Dubai. The father’s time with the child would differ depending on whether he chose to relocate to Dubai or not. The matter was appealed to the Full Court on the basis that, by focusing solely on current relationships, Slack FM had failed to give adequate consideration to the benefit to the child of having a meaningful relationship with both parents and how that relationship could be achieved and fostered in the future. The Full Court set out three possible interpretations of the phrase ‘meaningful relationship’ in section 60CC(2)(a): (a)

(b)

(c)

64 65 66 67

that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’); that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).67

McCall & Clark [2009] FamCAFC 92 (McCall ). ibid., [30] (Bryant CJ, Faulks DCJ, Boland J, citing [35] of the judgment of Slack FM). ibid., [30] citing [37] of the judgment of Slack FM. ibid., [118].

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The Full Court concluded that ‘the preferred interpretation of benefit to a child of a meaningful relationship is the “prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.’68 The Court explicitly rejected the presumption approach, stating that ‘if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.’69 It is therefore necessary when applying section 60CC(2)(a) that, if it is in a child’s best interests, orders be framed to ensure that the child has a meaningful relationship with both parents. The present relationship between the parent and child may also be relevant, but the fact that a significant relationship has not yet been established does not prevent the court from making ‘appropriate’ orders. In reaching these conclusions, the Full Court noted that while the legislation requires a court to focus on the benefit to the child of a meaningful relationship and that in most instances this benefit will be a positive one. However, the Court also made clear that ‘there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.’70 A further issue to be resolved in McCall was what is meant by the term ‘meaningful’. The Act does not include a definition of ‘meaningful’. Nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. Turning to the dictionary definition, read through the interpretive lens of the section 60B objects, the Full Court cited with approval the approach taken by Brown J in Mazorski & Albright:71 What these [dictionary] definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.72

As Brown J suggests, framing orders to ensure that a child has a meaningful relationship with both parents does not necessarily mean that the child must spend a lot of time with

68 The Court went on to note that while present relationships are clearly part of the best interests analysis— s 60CC(3)(b) requires a court to explore existing relationships between a child and their parents and other persons, including grandparents—if the interpretation set out in (a) were ‘exclusively applied, it would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial’. McCall [2009] FamCAFC 92, [119]. 69 ibid., [120]. 70 ibid., [122]. 71 ibid., [109]–[115]. 72 Mazorki & Albright [2007] Fam 520, [26] (emphasis added).

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each parent. For example, in Charles & Charles73 Cronin J held that reducing the time spent with the father would encourage a ‘more meaningful’ relationship, primarily because it would reduce the amount of stress the children experienced. The parents in Charles has been sharing the care of their two children aged nine and seven, roughly equally. The mother wanted to change the arrangement so she was the primary carer, while the father wanted equal time to continue. The mother’s evidence was that the father was excessively controlling of the children’s lives to the extent that they did not have independence to develop their own personalities.74 Cronin J agreed, stating that ‘it is difficult to resist the view that the children are placed under an enormous amount of pressure by the husband to conform to a view that he holds about how they should be brought up. That comes out clearly from the intensity of the husband’s view about raising the children.’75 Ultimately, Cronin J concluded that with less time, ‘the relationship between the [father] and the children … may develop into something less stressful than it has been.’76 The children’s time with the father was reduced from six days a fortnight plus an afternoon after school to five days a fortnight. While the decision in Charles resulted in less time with the father, that time was still significant; indeed, it is not clear how it might have made a difference to the issues faced by the children. The case in the end tends to confirm the emphasis in the case law when applying section 60CC(2)(a) on achieving and fostering a positive and significant relationship with both parents even in the presence of significant difficulty, and the absence of an existing relationship.

8.4.1.3.2  Protection from harm and family violence The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)). As discussed in Chapter 5, family violence is a key characteristic of the families engaged in the family law system. As discussed in that chapter, since the early 1990s it has been increasingly understood that family violence relevant to parenting disputes extends well beyond physical violence, and well beyond violence targeted at children, with increasing understanding being reflected in the FLA since the Family Law Reform Act 1995 (Cth) (the 1996 amendments). Yet, as discussed in Chapters 5 and 6, research evaluating the effect of the 2006 amendments consistently demonstrated that greater emphasis had been given to ‘meaningful relationships’ than protection from harm in litigated cases (evidenced by the increase in court ordered shared time arrangements post-2006 compared to pre-2006).77 The 2012 amendments, also discussed in Chapter 6, introduced a suite of changes with the aims of strengthening the protection given to victims of violence and ensuring that parents were not discouraged from raising concerns about violence 73 74 75 76 77

Charles & Charles [2007] FamCA 124. ibid., [157]. ibid., [88]. ibid., [157]. Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3; Chisholm, Family Courts Violence Review, above n 34.

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or abuse. These changes, which are discussed in Chapter 5, included the introduction of section 60CC(2A), amendment of section 60CC(3)(k) such that courts are permitted to consider all family violence orders, whether interim or final,78 and new definitions of ‘abuse’ (section 4) and ‘family violence’ (section 4AB).

8.4.1.3.3 Interpreting the 2012 family violence amendments As the new family violence provisions only took effect on 7 June 2012, and do not apply to cases commenced prior to that date, their impact is still being determined (Chapters 5 and 6). Most of the existing judgments relate to interim matters and there is, as yet, no Full Court case interpreting and applying the amendments. However, some early trends have been identified. Research conducted extra-curially by Justice Strickland, a sitting member of the Full Court, suggests that the amendments have increased the number of instances in which allegations of family violence are made.79 In his survey conducted with registrars, Strickland J found that 31 per cent thought that family violence allegations were being made more frequently in affidavits filed in the family courts since the 2012 reforms, primarily because of the expanded definition of family violence.80 They reported that there were more allegations of financial and emotional abuse and psychological and controlling behaviour than purely physical abuse. Yet, as Zoe Rathus has argued, there are inconsistencies within the definition of family violence in section 4AB that may render its application narrower than the legislature intended (Chapter 5).81 Justice Strickland and Kristen Murray have also suggested that, though there are very few cases to analyse, ‘the impression is created that s 60CC(2A) is not being invested with as much force as perhaps the legislature anticipated or intended’.82 One of the early decisions applying the new provisions in more than a cursory manner is the Federal Magistrates Court of Australia (FMCoA, as the Court was then known; it became the FCCoA in 2013) decision in Carra & Schulz.83 In summary, Carra & Schultz underlines the requirement that coercion, control or fear be established, and also suggests that judges will be alive to spurious use of the new provisions by litigants. The case involved a dispute as to what constitutes family violence under the FLA. The father filed an application seeking orders to spend time with his six-year-old daughter. He also filed a Notice of Child 78 The previous version of s 60CC(3)(k) limited consideration to final orders. 79 Justice Steven Strickland, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’, paper presented at the 50th Annual Conference of the Association of Family and Conciliation Courts, Los Angeles, California, 29 May – 1 June 2013, pp 24–5. 80 It is possible that the increase in allegations identified in Strickland J’s survey, conducted soon after the 2012 amendments came into force, represent what has been referred to in the policy context as a ‘disappearing nudge effect’, whereby a policy change produces a brief behavioural effect but then things return to the status quo. Bruce Smyth et al., above n 2. 81 Rathus, above n 46, p 360. Similar arguments have been made elsewhere: Patrick Parkison, ‘The 2011 Family Violence Amendments: What Difference Will They Make?’ (2012) 22 Australian Family Lawyer 1, 5; Steven Strickland and Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’, forthcoming, (2014) 28 Australian Journal of Family Law. See also Adiva Sifris and Anna Parker, ‘Family Violence and Family Law: Where to Now?’ (2014) 4 Family Law Review 3, who argue that further FLA reform is needed to recognise that family violence is the norm rather than the exception. 82 Strickland and Murray, ibid. 83 Carra & Schulz [2012] FMCAfam 930 (Carra).

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Abuse, Family Violence and Risk of Family Violence (Form 4), alleging that the mother was violent in failing, or refusing to allow him, to spend time with and communicate with his daughter other than occasional phone calls. Relying on the examples of what might amount to family violence in the new definition, the father argued that the mother’s behaviour amounted to ‘preventing [him] from making or keeping connections with his … family’ (section 4AB(2)(i)). Hughes FM rejected the assertion that the mother’s behaviour amounted to family violence. First, her Honour confirmed that only subsections (1) and (3) formed the operative part of the section. Thus, the essence of the definition in section 4AB(1) is behaviour that coerces or controls a family member or causes them to be fearful. The examples provided in section 4AB(2) must be understood in light of this requirement. Turning to the applicability of the legislative example relied upon by the father, Hughes FM held that it was ‘directed at’ situations accompanied by coercion or control such as ‘keeping [a person] … in a state of social and/or emotional isolation by cutting them off from family and friends.’84 There was no evidence in this case that the mother was trying to coerce or control, or that the father was fearful.85 In fact, Hughes FM held that ‘there may be good reasons’ for the mother preventing contact as there had been previous orders that parenting time with the child be supervised.86 The decision in Carra reinforces the requirement of coercion, control or fear. It also seems to suggest that if a parent fleeing family violence were prevented from communicating with the child by the perpetrator, the definition of family violence might be met if the severing of communication was a measure used to coerce or control the fleeing parent, or cause them be fearful for themselves or the child. What is clear from the decision, however, is that coercion, control or fear must be demonstrated if the definition of family violence is to be met, and the examples in section 4AB(2) do not form part of the definition. Longer & Longer87 also provides some insight into how the new provisions will be interpreted. Longer involved the making of a final order in a case filed before the commencement date of the family violence reforms, but handed down eight months after the amendments had come into force. While the amendments were not applicable to the decision, Terry FM nonetheless addressed the concepts of coercion and control in her decision. The mother’s allegations included a number of incidents in which the father had slapped her face, grabbed her hair and throat, pushed her onto a bed (after she threw an item of clothing at him), and struck her on the side of the head after she pushed a computer lid down on his fingers during an argument. The mother also described abuse of a more psychological nature and maintained that the father was ‘a violent and coercive and controlling man.’88 She claimed that he owned guns, would not let her hold bank accounts or drive the car, resented her studies, and disconnected the internet when she had assignments due. She also said he frequently belittled her, calling her a ‘stupid, lazy, selfish person’ with ‘no morals’.89 The father admitted a number of the incidents but also 84 85 86 87 88 89

ibid., [7]. ibid., [7]. ibid., [9]. Longer & Longer [2013] FMCAfam 257 (Longer ). ibid., [60]. ibid., [71].

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made allegations of violence against the mother that included throwing things, slapping, punching and scratching him, and calling him offensive names. Although her Honour correctly applied the pre-2006 definition of family violence, she addressed the mother’s assertion that the father exercised ‘coercion and control’ over her, ultimately rejecting it. While Terry FM accepted that the father was a ‘rigid’ man who would have been difficult to live with, he had not ‘engaged in coercive or controlling violence or engaged in a reign of terror to get his own way’. As Rathus has stated with regard to the decision Longer: it is likely that both parties committed family violence under the old definition, but there is arguably a difference in the nature of their violence that suggests that, under the new law, only the father’s behaviour might be seen to have those required features of coercion, control or fear. However, those features were ultimately used to find that the father’s behaviour was not in that category.90

8.4.1.3.4 What level of family violence is necessary before it will outweigh ­continuation of a parent–child relationship? In this section, we explore the circumstances in which the family law courts appear more likely to make orders that one parent have no parental responsibility or parenting time with a child due to family violence. The research suggests that the application of the law in the pre-2012 environment produced the result that only severe, well-evidenced violence would outweigh the perceived harm associated with the child losing their relationship with the offending parent, a trend that was identified both prior to and since the 2006 amendments.91 However, there is significant variability in how judges construe ‘bad behaviour’ on the part of parents, sometimes producing inconsistent results. Indeed, it is rare for judges to completely sever the relationship between a child and parent due to family violence or abuse, and they are clearly reluctant to do so. This is, in part, because courts have available to them a number of protective orders that are believed to adequately address the risk to the child. The most common option utilised, particularly in high-risk cases, is supervised contact. Supervised contact, discussed in more detail in Chapter 7, is where parenting time is exercised at a contact centre, or is supervised within the home by another family member, such as a grandparent. Where there is a risk of violence during the handover of the child, courts can order that handovers take place in a neutral, often public, place, such as a school, park, or restaurant. While the risk of family violence or abuse is usually the reason for using a contact service, research on children’s experience of supervision at contact centres is generally positive. For example, most of the children interviewed in a large-scale study of Australian contact centres reported feeling safe while using the centre. For these children ‘the centre appeared to have successfully buffered them from experiencing their parents’ anxieties about contact, inter-parental conflict and 90 Rathus, above n 46, p 374. 91 Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112, 112; Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3.

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violence, and their contact parent’s drunken and abusive behaviour.’92 However, in a small number of cases, having supervised contact did not protect children from their parents’ ongoing animosity towards one another, or the contact parent’s abusive behaviour towards the children.93 Supervised access is also not seen as a long-term solution.94 Where an order is made that the time a parent spends with a child be under supervision indefinitely, there needs to be ‘cogent reasons to support such orders.’95 It is thus not uncommon for orders to include ‘sunset clauses’, whereby supervision will cease, sometimes because the child has reached a certain age.96 The 2014 FCoA decision of Benjamin J in Cannon & Acres97 is an example of where a combination of family violence and abuse resulted in an order that all contact and communication between the father and his 12-year-old daughter cease. Parenting litigation had commenced when the child was five and initially she had ‘endeavoured to meet what she perceived as the needs of her parents by making them happy’.98 However, after seven years of extensive conflict and family violence (the conduct included assault, harassment, verbal abuse, and stalking of both the mother and child and was held by Benjamin J to meet the definition of ‘family violence’ in section 4AB(1)), the child concluded that ‘enough was enough’ and told her mother that she no longer wanted to see or communicate with her father.99 The father was also found to have frequently instituted ‘vexatious proceedings’ (section 102Q(1)) against the mother. Despite this ‘persistent abhorrent behaviour’, Benjamin J held that the mother had ‘remained child focussed’ and maintained the child’s relationship with her father.100 In reaching the conclusion that parenting time between father and daughter should cease, Benjamin J cited the father’s violent behaviour, as well as the fact that he had ‘little or no insight into his obsessive and uncontained behaviour’ and ‘is unable or unwilling to see how his behaviour has impacted upon the mother … with consequential impact upon the child’.101 The mother was awarded sole parental responsibility and the father was barred from spending time with the child. The father was also prohibited under section 102QB from instituting proceedings against or in relation to the mother or the child without first having been granted leave.102 In reaching the conclusion that  92 Grania Sheehan, Rachel Carson, Belinda Fehlberg, Rosemary Hunter, Adam Tomison, Regina Ip and John Dewar, Children’s Contact Services: Expectation and Experience: Final Report, Griffith University, Brisbane, June 2005, p 166.  93 ibid., 159–62.  94 Moose & Moose [2008] FamCAFC 108 (May & Boland JJ).  95 ibid., [10].  96 See Thistle & Thistle (No. 2) [2014] FamCA 67. In Thistle the father was accused of sexually abusing the mother’s daughter from a previous relationship. The allegations were made by the child when she was 11 years old, absent any conflict between the parents. Despite feeling ‘uncomfortable’ with regard to the allegations, Kent J awarded supervised contact to the father, initially at a contact centre and later supervised by his new partner. However, supervision was to cease when the child turned 13. See also Champness & Hanson [2009] FamCAFC 96; Moose & Moose [2008] FamCAFC 108; Slater & Light (2013) [2013] FamCAFC 4.  97 Cannon & Acres [2014] FamCA 104.  98 ibid., [4].  99 ibid., [7]. 100 ibid., [86]. 101 ibid., [5]. 102 ibid., [494]. The effect of the order was that the father was prohibited from instituting proceedings under the FLA against or in relation to the mother or the child without first having been granted leave to commence that proceeding pursuant to s 102QD of the Act.

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contact should cease, Benjamin J explicitly noted that he gave greater weight to section 60CC(2)(b), as required by section 60CC(2A).103 The father’s violence was not, however, as severe as is commonly evident in cases where no orders for ESPR or parenting time are made. Rather, it was a combination of section 60CC factors, including the child’s views and maturity, the mother’s support of the father/child relationship, the father’s lack of insight, and the family violence, that was influential in the reasoning justifying the order. Edwards & Granger,104 also decided by Benjamin J, provides a more typical example of the sort of violence that has led to orders for no ESPR or parenting time. In Edwards & Granger, the father’s pre- and post-separation family violence resulted in a finding that he should no longer have parental responsibility in relation to, or spend any time with, his two children, aged 10 and seven. The violence included a horrific attack and sexual assault of the mother after she told the father she wished to end the marriage, and for which the father was convicted and imprisoned. The mother suffered physical, emotional and psychological injuries as a result of the attack and required ongoing psychological treatment. Despite his conviction, the father refused to acknowledge the attack had occurred and asserted that the sex was consensual. He also indicated to various experts in the trial, as well as the mother, that ‘he would not be constrained by court orders.’105 Prior to his incarceration, the father took occupation of the matrimonial home, refusing to participate in the sale of the property. He lived in the home for some time with a friend, but made no loan repayments (although he had some capacity to do so) and did not obtain any rent from his friend. The mortgagee eventually sold the home. As a consequence, the mother was left with a liability of about $80,000, the father having become a bankrupt. The paternal grandmother, who also sought time with the children, supported the father’s application and insinuated that the mother had ‘fabricated’ the attack. Other members of the father’s family repeatedly engaged in harassment of the mother and child. On the basis of the father’s extensive violence, the enormous impact it had on the mother, and the father’s complete denial of it ever happening, Benjamin J concluded that the father posed an unacceptable risk of physical and psychological harm to the children and, if parenting time were permitted, to the mother.106 It was therefore concluded that the mother have sole parental responsibility for the children and that the father have no parenting time. Due to Benjamin J’s belief that the father would approach the mother, as well as the mother’s fear of him, pursuant to section 68B the father was also restrained from directly or indirectly approaching or communicating with the mother and/or the children, going within 500 metres of the mother or children, and going within 500 metres of the children’s school, the mother’s place of employment, or the home or place where the mother and children are living or staying. Finally, due to the father’s previous breaches of family violence orders, and his public assertions that he refused to be bound by court orders of any kind, Benjamin J made an order under section 68C empowering a police officer, on

103 104 105 106

ibid., [282]. Edwards & Granger [2013] FamCA 918. ibid., [320]. ibid., [238]–[239], [244].

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reasonable grounds, to arrest the father without warrant if the FLA orders he made were breached. In Edwards & Granger, the violence perpetrated by the father was evidenced by his criminal conviction. However, because family violence usually occurs in the private realm, corroborative evidence is often not absent, making it difficult for a judge to assess the veracity of the allegations. A 2007 Australian Institute of Family Studies (AIFS) study, which examined the presence of corroborative evidence in cases where family violence or abuse is alleged, concluded that the stronger the probative value of the evidence, the greater the influence it appeared to have on decision making.107 For example, it was found that the proportion of orders for overnight stays decreased when allegations were supported with evidence of apparently strong probative weight.108 This was consistent with earlier qualitative research conducted by Kaspiew following the Family Law Reform Act 1995 (Cth),109 discussed in Chapter 6. While the research indicates the importance of corroborative evidence for complainants, the Full Court (May, Coleman and Le Poer Trench JJ) in Amador 110 indicated that corroborative evidence is not necessary in order to raise an allegation of family violence or abuse. Amador was an international relocation case where the federal magistrate at first instance had accepted the mother’s uncorroborated evidence that the father was violent to her and sexually assaulted her. The father’s appeal argued that the federal magistrate had erred in making a positive finding of family violence without corroboration. The Full Court disagreed with the father, noting that the private nature of family violence means that corroboration cannot be expected in all cases. The Court explained: To the extent that it is submitted that the mother’s allegations of ‘horrific domestic violence’ could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.111

107 Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-Reform Exploratory Study, Research Report No. 15, Australian Institute of Family Studies, Melbourne, May 2007. 108 ibid., p 102. 109 Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112. 110 Amador & Amador [2009] FamCAFC 196 (Amador ). As discussed in Chapter 5, family violence is underreported to a significant extent. This approach is therefore more realistic than one that emphasis the need for corroboration (see John de Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011, Research Report, Australian Institute of Family Studies, Melbourne, 2013, in relation to disclosure of family violence). 111 Amador [2009] FamCAFC 196, [79], [81].

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However, the Full Court in Amador did indicate that the more serious the allegation of family violence, ‘the more important it will be to the child to investigate and determine the allegation’, as ‘[t]he consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare’.112 In addition, the Full Court in Amador appeared to draw a distinction with regard to the evidentiary burden between cases involving allegations of abuse against a child (where the ‘unacceptable risk’ test enunciated by the High Court of Australia (HCoA) in M v M113 is applicable, though not always applied)114 and an allegation of family violence by one party to another. In the latter situation, the Full Court suggests that it will be necessary to make findings where the evidence enables that to be done, particularly in the case of serious allegations. This is in contrast to the (HCoAs) view in M v M that when the FCoA is exercising its jurisdiction to make parenting orders in the child’s best interests, determination of the veracity of allegations is secondary and not essential. In other words, determination of an unacceptable risk of harm to the child does not require a positive finding that the harm has occurred.115 The apparent suggestion in Amador that allegations of family violence between parties are to be handled differently from allegations of child abuse has been criticised by Richard Chisholm. While Chisholm accepts that there may be differences of degree between to the two scenarios with regard to the issue of evidence, there is no difference in principle: I suggest … that in deciding whether to make a finding of child abuse or family violence, the court should carefully consider the consequences, especially for the child, of making or not making the finding. I hope that the Full Court’s remarks in Amador will not be taken as meaning that there is some fundamental difference in principle between the handling of allegations of family violence directed at adults and the handling of allegations of child abuse. The decision in A v A, much relied on in Amador, itself indicates that there is no difference in principle: the Full Court there remarked that ‘though the High Court was in M and M talking in terms of sexual abuse, the same principles apply to “other risks of harm” to the child.116

8.4.1.3.5  Unacceptable risk As noted above (8.4.1.3.4) if the court is unable to make a conclusive finding with regard to family violence or abuse, it must still consider whether parenting orders will expose a child to an ‘unacceptable risk’ of harm. The unacceptable risk test was first enunciated in the HCoA case of M v M in the context of allegations of child sexual abuse.117 However, the concept of unacceptable risk 112 ibid., [95]. 113 M v M (1988) 166 CLR 69; [1988] HCA 68. 114 Rachel Carson, Supervised Contact: A Study of Current Trends and Emerging Tensions since the Introduction of the Family Law Reform Act 1995 (Cth), PhD Thesis, Melbourne University Law School, 2011. 115 M v M [1988] 166 CLR 69; HCA 68, [20]–[23]. 116 Richard Chisholm, ‘How to Treat Allegations of Violence and Abuse: Amador v Amador’ (2010) 24 Australian Journal of Family Law 276, 280. 117 M v M 166 CLR 69; [1988] HCA 68.

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now extends across a wide range of risks that may impinge on the interests of the child, including cases of non-sexual abuse of a child,118 family violence,119 and parental drug use.120 It has perhaps also been codified to a limited degree in the family violence context by section 60CG, which requires the court, when considering what order to make, and to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, to ensure that the order is ‘(a) consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family violence’. While the range of situations to which the unacceptable risk test applies has grown, due to its irregular and inconsistent use,121 the recent application of the test has become the subject of significant criticism.122 A recent analysis by Lisa Young and colleagues suggests that the test might appropriately be abandoned in light of the introduction of section 60CC(2A), which expressly prioritises children’s safety over the benefit of a meaningful relationship with both parents, and thus removes the ‘balancing act’ required by the unacceptable risk test.123 The case of M v M involved allegations of sexual abuse by the father of the child for which there was no conclusive evidence. Evidentiary issues are common in cases where child sexual abuse is alleged124 (specifically, ‘[t]he secrecy which usually surrounds sexual abuse, the nature of the offences which it involves, and the nature of the relationship between the perpetrator and the child, all militate against the furnishing of the type of evidence with which lawyers like to work’),125 but concerns for the child’s safety may nevertheless exist, making it necessary to develop a test that assesses risk in a context where evidence is limited or completely absent. In M v M, 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. To eliminate the risk of abuse, he made orders denying contact. The father appealed and eventually the case was heard by the HCoA. Rejecting the father’s argument that the trial judge should have made a positive finding as to whether the abuse occurred or not, the Court held that the paramount issue in such cases is the best interests of the child, not the determination of whether the allegations are true. Thus, in deciding what is in the best interests of the child, the role of the court is to determine if there is a risk of sexual abuse occurring and the magnitude or degree of that risk. Ultimately, the test ‘is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’126 118 In Johnson & Page, May, Boland and Stevenson JJ held that the unacceptable risk test is to be applied where there are allegations of ‘sexual or other serious abuse’. Johnson v Page [2007] FamCA 1235, [62]. 119 Edwards & Granger [2013] FamCA 918. 120 Akston & Boyle [2010] FamCAFC 56. 121 Rachel Carson’s empirical research on the unacceptable risk test in the context of high-risk contact cases revealed that many judges did not discuss or apply the test, or did so in a cursory manner. Carson, above n 114, p 153. 122 John Fogarty, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249. 123 Lisa Young, Sandeep Dhillon and Laura Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era’ (forthcoming). 124 Ian Freckelton, ‘Evidence in the Family Court: The New Regime’ (2005) 12 Psychiatry, Psychology and the Law 234. 125 In the Matter Of: N Appellant/Wife and S Respondent/Husband and the Separate Representative [1995] FamCA 139 (Fogarty, Kay and Hilton JJ), [113] (Fogarty J, in dissent). 126 M v M (1988) 166 CLR 69; [1988] HCA 68, [25].

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Though M v M still stands as the authoritative statement of the law in this area, the test has changed over time, consistent with legislative shifts towards maintaining parent–child relationships in 1996 and 2006. While the HCoA described the test as endeavouring to achieve a ‘proper balance’ between the ‘risk of detriment’ versus the ‘possibility of benefit’ to the child from contact,127 the significant emphasis placed on the latter in the 2006 amendments appears to have shifted where that balance may lie. The Full Court’s decision in Re W 128 is a good example of this re-balancing of the test. Re W was determined at first instance by the then Chief Justice of the FCoA, Nicholson CJ, who found that it was probable that the appellant had sexually abused his daughter over a period when she was less than four and just over five years old. Chief Justice Nicholson therefore concluded that all contact should cease on the grounds that the child could not be adequately protected in any form of unsupervised contact, and that the potential detrimental effects of supervised contact outweighed any benefit that she might receive from such contact. The father challenged the latter conclusion, arguing that no matter what the finding of the trial judge with regard to the abuse allegation, his conclusion that the proposals for supervised contact were more detrimental to the welfare of the children than no contact at all ought not reasonably have been open to him. The Full Court (Kay, Holden and O’Ryan JJ) allowed the father’s appeal: The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent–child relationship. The Court needs to be remain conscious of this imperfection at all times.129

The decision of Re W prompted former appeal judge of the Family Court John Fogarty to criticise the Court, and the Full Court in particular, for deviating ‘significantly from the principles and approach’ outlined in M v M.130 In particular, Fogarty expressed concern about the tendency of the Full Court to ‘place undue emphasis as a starting point upon the consequences to the alleged abuser … and the suggestion that it may be better to arrive at a false/negative than a false/positive, rather than emphasising that the interests of the child are paramount throughout.’131 Fogarty pointed out that the alternative (where the allegations are true but not acted upon) ‘may be as or more regrettable.’132 Ultimately, Fogarty’s

127 ibid. 128 Re W (Sex Abuse: Standard of Proof ) [2004] FamCA 768 (Re W ) (Kay, Holden and O’Ryan JJ). 129 ibid., [19]. 130 John Fogarty, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 AJFL 249, 251. See also Richard Chisholm, ‘Child Abuse Allegations in Family Law Cases: A Review of the Law’ (2011) 25 Australian Journal of Family Law 1. 131 ibid. 132 ibid., 283.

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concern was that the current approach to the unacceptable risk test was undermining the paramountcy of the best interests of the child: The constant reference to the impact on the alleged abuser of a finding of abuse … cuts across the fundamental emphasis on the interests of the child as the paramount consideration. This has also led to unjustified reversals of trial decisions.133

Fogarty’s concerns are well warranted in light of the research on the long-term effects of child sexual abuse, which include a range of negative consequences for mental health and adjustment in childhood, adolescence and adulthood.134 Fogarty also criticised the Full Court for misunderstanding the standard of proof required in cases that raise the unacceptable risk test. In Fogarty’s view, the Court seemed uncertain about the difference between the levels of proof required, in particular for proof of past abuse and proof of future risk. As he notes, ‘there still remains vestiges of the view that conclusions about future risk can only be drawn from proved facts’, a position clearly rejected by the HCoA in M v M. The correct position in Fogarty’s view was that when assessing future risk, the court is entitled to take into account factors that are not proved but that nevertheless raise issues of concern. Similar concerns have been raised by Rachel Carson, whose analysis of the unacceptable risk test in the context of high-risk contact cases, focusing on pre-2006 cases, revealed an understanding of the test that focused on assessing the veracity of allegations, with ‘the primary conception of harm as the loss or prevention of contact’, rather than the harm that may ensue from experiencing abuse.135 Despite criticisms of the direction the unacceptable risk has taken, post-2006 decisions commonly support the approach taken in Re W, though the case law is inconsistent.136 For example, in Harridge & Harridge,137 Murphy J awarded a father supervised time with his two children, aged six and four, despite a conviction for three offences involving possession and distribution of child pornography. The access was to be supervised by the paternal grandparents, an outcome opposed by the mother and the independent children’s lawyer on the basis that the grandparents had little insight into the psychological indicators underlying the father’s offending behaviour. The mother had sought supervision at a child contact centre, but this was not an option due to the father being a registered sex offender. In reaching the conclusion that parenting time should be permitted, Murphy J sought to balance the risk of harm to the children with the ‘possibility of benefit’ to the children from contact with their father, stating: I find that the children would clearly benefit from the promotion and development of a meaningful relationship with their father and with their paternal grandparents … In this case, however, as in so many cases that proceed to final hearing in this court, the Primary Consideration of the children having a meaningful relationship with both 133 ibid., 295. 134 Judy Cashmore and Rita Shackel, The Long-Term Effects of Child Sexual Abuse, CFCA Paper No. 11, Australian Institute of Family Studies, Melbourne, 2013. 135 Carson, above n 114, pp 162–3. 136 For example, in the 2007 decision of Johnson & Page [2007] FamCA 1235, the Full Court (May, Boland and Stevenson JJ) referred with approval to the abovementioned article by Fogarty and endorsed his summary of the unacceptable risk test from M v M. 137 Harridge and Anor & Harridge and Anor [2010] FamCA 445.

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parents has the potential to collide directly with the other Primary Consideration, which predominates the need to protect children from specified harm. In my judgment that potential collision poses the central dilemma for this court in arriving at orders that best meet these very young children’s best interests: does the potential for harm—or any ‘unacceptable risk’ of harm—justify impinging upon the present, and potential, meaningful relationship otherwise identified and, if so, how and to what extent?138

Weighing up these competing demands, Murphy J concluded that the children should spend time with the paternal grandparents for approximately one day every six weeks, during which the father could be present and supervised. While relatives and close associates of an alleged perpetrator are usually not considered to be appropriate supervisors because they are less likely to believe the abuse might have occurred and therefore to be vigilant,139 the problem in this case was that, due to his conviction, the father was ineligible to use a children’s contact service. Where the court has found that a parent against whom allegations are made does not represent an unacceptable risk to the child, the other parent’s ‘genuinely held’ belief that a risk exists will still be a relevant consideration in determining parenting orders.140 This is because that belief may have a significant impact on a parent’s capacity to parent the child and so impinge on the child’s best interests.141 The approach to be taken in such a situation is explained by the Full Court decision of A & A, a case where the mother had been seriously assaulted (to the point that the assault appeared to be an attempted murder) and believed the father to be the assailant:142 If the wife [believes the events in question occurred], it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that … is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.143

The mother’s belief in A & A as to her assailant, and the impact this had on her caregiving capacity, were identified as relevant to the best interests question, rather than the application of the unacceptable risk test. Thus any consideration of a genuinely held belief on the part of a parent that an unacceptable risk exists is a question to be considered in the context of the best interests analysis. In A & A, the mother’s genuinely held belief was sufficient to warrant supervised contact. 138 ibid., [49], [51]–[52]. 139 In the Marriage of: Joanne Michelle Bieganski Appellant and Michall Bieganski Responent Marriage of [1993] FamCA 51 (Fogarty, Baker and Purvis JJ) (Bieganski). 140 This situation must be distinguished from that described in s 60CG of the FLA, which requires that the court ensure that an order does not expose ‘a person’ (including the child’s parent) to an unacceptable risk of family violence. The court can include in an order any safeguards it considers necessary for the safety of those affected by the order (s 60CG(2)). 141 Bieganski [1993] FamCA 51; In the Marriage of Sedgley (1995) 19 Fam LR 363. 142 A & A [1998] FamCA 25 (Fogarty, Kay & Brown JJ). 143 In the Marriage of A [1998] FamCA 25, [3.28] (Fogarty, Kay and Brown JJ). See also Gillee & Gillee [2010] FamCA 1141.

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The FCoFC (Bryant CJ, Ainslie-Wallace & Ryan JJ) decision of Marsden & Winch144 is a recent example of the application of the approach in A & A. The question in Marsden was whether contact should be ordered with the father, who was not found to pose an unacceptable risk, but whose contact with the child would pose a risk that would ‘exceed a moderate risk’ to her and potentially to her friends who came into contact with the father.145 Approximately 10 years before, the father had been convicted of wilful and obscene exposure on two occasions and of indecent behaviour on a further occasion, including public masturbation. For one year he had been romantically interested in a schoolgirl aged about 13 or 14 years, keeping stolen underwear belonging to the child and a photograph of her. The mother had developed post-traumatic stress disorder (PTSD), in large part due to the protracted litigation. In spite of psychological assessments recommending the father have supervised contact proceeding to unsupervised contact with the child, the trial judge concluded that parenting time should be denied.146 In support of this conclusion, Watts J considered the impact contact would have on the mother, particularly with regard to her PTSD, the father’s lack of candour about his offending, and the effect of the ongoing litigation on the mother. If contact were to proceed, Watt J held that it ‘would have a profound effect on the mother’s ability to parent’ and that there was a seriously possible risk that the mother’s ‘mental status will deteriorate into a psychotic/delusional state’.147 The father appealed the orders, but was unsuccessful, with the Full Court holding that ‘it was not unreasonable that the mother maintained the views about him which she held.’148 By contrast, in cases where it has been held that there is no rational basis for the belief, the mother’s fear for the children’s safety has been assessed as ‘delusional’ and children have been removed from the mother’s primary care.149 For example, in Tyler & Sullivan, the mother was found to have ‘formed an unshakeable belief that the child had been sexually abused by his father’, including having been forced to participate in a paedophile ring. She had absconded with the child to Europe to avoid him having contact with his father. Accepting expert evidence that the mother suffered from a ‘delusional disorder’, Watts J ordered that the child live with his father and that the mother have no contact. Given that the mother ‘unshakeably and implacably’ believed that the child was sexually abused, putting the child in the care of his mother was ‘in fact a highly risky position into which to place’ him.150 Cases in which it is held that is no reasonable basis for a parent’s belief have often involved discussion of social sciences evidence regarding ‘parental alienation’.151 144 Marsden & Winch [2013] FamCAFC 177. 145 ibid. 146 Marsden & Winch [2012] FamCA 557. 147 ibid., [129]. 148 Marsden & Winch [2013] FamCAFC 177, [123]. 149 Tyler & Sullivan [2014] FamCA 178; Mortone v Mortone [2011] FamCA 309; Morcombe v Preston [2010] FAMCA 165. 150 Tyler & Sullivan [2014] FamCA 178, [949]. 151 Chapter 6, n 58. Tom Altobelli, ‘When a Child Rejects a Parent: Why children Resist Contact’ (2011) 25 Australian Journal of Family Law 185.

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8.4.1.3.6 Additional considerations The additional considerations cover a variety of different issues, all of which must be considered by the court. As noted above with regard to family violence, they must be read alongside the primary considerations. Rather than discuss each consideration in detail, in the next section we discuss a number of cases that highlight the overlapping nature of the additional considerations, focusing on those that are raised most frequently.152 Further discussion of specific issues that might arise in parenting disputes, some of which are captured by the additional considerations, such as culture, lifestyle and Aboriginal and Torres Strait Islander identity, are discussed in Chapters 4 and 9.

The relevance of children’s views Section 60CC(3)(a) makes clear that the views of the child, whatever the child’s age,153 are a relevant consideration when determining the best interests of the child. However, the weight given to them will vary according to a range of factors, ‘such as the child’s maturity or level of understanding’ (section 60CC(3)(a)). Courts are not required to act on a child’s views (even if the court considers they are validly held), though they must provide good reasons for not doing so.154 As discussed in Chapter 7, children’s views are established via family reports (section 62G(2)), independent children’s lawyers (sections 68L and 68LA), or by other such means as the court thinks appropriate (section 60CD). A child cannot be required to express a view on a matter (section 60CE). The decision In the Marriage of R 155 is a leading source of guidance on the weight the court accords to children’s views. The case involved a child, C, who was 11 at the time of the trial before Guest J, and aged 12 at the time of the appeal. The child, along with her 14-year-old sister, no longer wished to see her father. While the father reluctantly accepted the older girl’s position, he refused to accept the views of the 11-year-old. There was no suggestion that the father had been anything but a loving and actively involved parent prior to separation. At trial, Guest J made a number of unfavourable findings with regard to the mother and suggested that C’s reluctance to see her father was a result of the mother’s failure to encourage contact (as it then was) or present the father in a positive light. In view of these findings, Guest J held that while C’s wishes were strongly held, he did not believe she appreciated the full range of factors at play or the long-term implications of her views. Orders for contact were made, albeit with a staggered introduction. On appeal, the Full Court (Nicholson CJ, Holden & Monteith JJ) upheld Guest J’s decision, holding that: the principle is clear that a Court must take children’s wishes into account, but is not bound by them. In this case his Honour found that the wishes expressed by the child should be given less weight than would normally be the case having regard to all of the evidence and particularly to the attitude of the mother to contact.156 152 153 154 155 156

Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3, p 338. Marriage of Joannou (1985) FLC 91-642; Harrison and Woollard (1985) 18 Fam LR 788. In the Marriage of R (Children’s Wishes ) [2002] FamCA 383. ibid. Note that In the Marriage of R is a pre-2006 decision when the FLA still referred to children’s ‘wishes’. ibid, [128] (Nicholson CJ, Holden and Monteith JJ) (emphasis added).

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Thus, not only is a court not bound by a child’s views, but also the weight attached to the views may be affected by the extent to which the child might have been influenced by the parent with which they reside. Another relevant factor in deciding how much weight to attach to a child’s wishes (and related maturity and understanding) is the age of the child. For example, in Escott & Lowe,157 Rose J raised concerns that the two children, aged eight and six, who had requested an equal time arrangement, were perhaps doing so out of a desire to be ‘fair’ and that they lacked the maturity to fully appreciate what such an arrangement might mean for them. Relying on the evidence of the child expert, Rose J concluded: I have not given any weight to the expression of views by each of the two children. My reasons are that I accept the evidence of the child expert that given their young ages and consequent lack of maturity, they have a different conception of time compared to an adult and may not fully appreciate an adult concept such as a week with each parent.158

By contrast, the wishes of older children are generally accorded greater weight. A  recent example, discussed earlier (8.4.1.3.4), is Cannon & Acres. Another example is Melrose  & Melrose,159 a case in which a number of the additional considerations were relevant. Strickland J held that the views of an articulate, mature, confident, and honest­ 14-year-old who no longer wished to see her father should be given ‘great weight’. However, the judge’s willingness to accept the child’s views was encouraged by the fact that they were, in part, a product of the father’s complete lack of insight, inflexible attitude, and unwillingness to take the advice of experts. The father had been encouraged to attend counselling and parenting courses, as well as address issues of personal cleanliness, alcohol consumption and smoking, but had refused the advice. He had also failed to take up opportunities to see his daughter in the past. Given the child’s age and maturity and the father’s refusal to ‘[change] his attitude and [put] the interests of the child ahead of his own’, Strickland J concluded that the relationship between them should be primarily on the child’s terms.160

Past care patterns As our earlier discussion suggests (8.3.2), prior to the 2006 reforms, parenting decision making placed greater emphasis on past care patterns (the ‘status quo’). Empirical research from the 1990s on litigated children’s matters showed that this was a key factor in custody decision making.161 Fathers argued, however, that a focus on past care patterns discriminated against them because they were more likely to work full time and be the main breadwinners, making it more difficult for them to demonstrate a past history of caregiving. To not recognise this fact when making parenting orders would mean that men were punished for being the breadwinner. Of course, women could make the same argument: to not recognise 157 158 159 160 161

Escott & Lowe [2007] FamCA 307. ibid., [124]. Melrose & Melrose [2010] FamCA 398. ibid., [160]–[161] (Strickland J). Sophy Bordow, ‘Defended Custody Cases in the FCoA: Factors Influencing the Outcome’ (1994) 8 Australian Journal of Family Law 252, 258–60.

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when making post-separation parenting decisions that women do the vast majority of caregiving labour pre-separation might also be said to be discriminatory. Three of the additional considerations refer, to varying degrees, to pre-separation patterns of care. Section 60CC(3)(b) requires the court to consider ‘the nature of the relationship of the child with each of the child’s parents’. Section 60CC(3)(d) requires the court to consider ‘the likely effect of any changes in the child’s circumstances’. Section 60CC(3)(c) requires the court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to (1) participate in making decisions about major longterm issues in relation to the child; (2) spend time with the child; and (3) communicate with the child. Read together, these three subsections require the court to consider past patterns of care and the potential effects of changing the child’s current care arrangements. As discussed above (8.3.2), the question of the weight to be given to the status quo is often an issue when making interim orders. The Full Court’s decision in Goode held that the new emphasis in the 2006 amendments on the continued involvement of both parents meant that: where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant time by both parents in the care arrangements for the child.162

While that decision related to interim orders, it encouraged the view that status quo was no longer a particularly significant factor. Pre-separation caregiving patterns do, however, remain relevant. In Dicosta & Dicosta,163 for example, the Full Court (Finn, Coleman and Thackray JJ) held that section 60CC(3) (d) requires that ‘there still be some consideration of the existing arrangements of the child in question, and that some weight be given to the likely effect on the child of a change in those circumstances, including separation from a parent’.164 In Dicosta, the parents had a ‘conventional’ marriage in which the father had worked full-time in his own business while the mother was the full-time carer for the children, aged six and four. After the parents separated, the children initially remained with their mother but saw their father on alternate weekends. However, Brewster FM made an interim order that in any fortnight the children spend five nights with the father and nine nights with the mother. At the full hearing, five months later, the father sought equal time, an arrangement that would alter both the status quo during the marriage as well as what had developed after the interim hearing. The father was unsuccessful both at first instance and on appeal. Both Brewster FM and the Full Court held that an equal time arrangement was such a radical change in the children’s circumstances that it would not be in their best interests, particularly given the conclusion by the family consultant that the children’s primary attachment was to their

162 Goode & Goode [2006] FamCA 1346, [72]. 163 Dicosta & Dicosta [2008] FamCAFC 161. 164 ibid., [35].

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mother. Ultimately, the interim arrangement, which itself was a significant departure from the pre-separation status quo, remained in force.

8.4.2 stage 2: Applying the presumption of equal shared ­parental responsibility (ESPR) Once the best interests factors have been assessed and findings made in relation to them, the court turns to stage 2 of the three-stage decision-making process: a consideration of whether the presumption of ESPR applies, does not apply, or is rebutted (section 61DA). Section 61DA states that, 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 parents to have equal shared parental responsibility for the child. As noted earlier, 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 (1) 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 (2) family violence (section 61DA(2)) (although, as discussed in this section, ESPR is still ordered in cases in which family violence or abuse of the child is alleged). The presumption in favour of ESPR may also 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 ESPR for the child (section 61DA(4)). As noted above (8.3.2), the presumption of ESPR also applies when the court is making an interim order, unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied. Finally, the presumption in section 61DA relates solely to the allocation of parental responsibility. It does not provide for a presumption about the amount of time the child spends with each of the parents.

8.4.2.1 What is ‘parental responsibility’? The FLA gives little helpful guidance with regard to the meaning of the term ‘parental responsibility’, providing just that parental responsibility ‘in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’ (section 61B). Any comprehensive attempt to list these would require reference to the common law as well as state legislation. However, the most common powers relate to the child’s education, religion, medical treatment, and diet, as well as the name by which the child will be known, the place where the child will reside, the persons with whom the child may associate, and the discipline that the child is to receive. Also relevant is the power to make decisions related to the day-to-day care, welfare and development of the child.

8.4.2.2 Who has parental responsibility? Each parent of a child has parental responsibility, despite any changes in the nature of the relationship between the child’s parents (section 61C). For example, parental responsibility is ‘not affected … by the parents becoming separated or by either or both of them marrying or re-marrying.’ Parental responsibility can be displaced, however, by court orders. A parenting order that provides for shared parental responsibility requires parents to consult and make a genuine effort to come to a joint decision about ‘major long-term issues’

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in relation to the child (section 65DAC). Subject to court orders, there is no duty, however, to consult on issues that are not major long-term issues (section 65DAE). The person with whom the child is spending time makes decisions about such issues. ‘Major long-term issues’ is defined as ‘issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues … about: (a) the child’s education (both current and future); (b) the child’s religious and cultural upbringing; (c) the child’s health; (d) the child’s name; and (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent’ (section 4(1)). To avoid doubt, the definition includes a note stating: a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

Relocation disputes are discussed at 9.7.1.

8.4.2.3 How does the presumption of ‘equal shared parental responsibility’ work? As noted above, when making a parenting order in relation to a child, the court must apply the 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. If the court makes an order for ESPR, it then must consider whether an order for equal time is in the child’s best interests and reasonably practicable under section 65DAA. What is not clear from either the legislation or case law is what a court should do if the presumption of ESPR is displaced. As noted earlier, legislative amendment in 2006 ‘did not actually create a presumption of equal time, but it came close, because equal time (or “substantial and significant time”) was the only outcome that the court was specifically required to consider when ordering equal-shared parental responsibility’.165

8.4.2.3.1 When is the presumption of ESPR displaced? To recap, section 61DA sets out three situations where the presumption of ESPR does not apply or may be rebutted: (i) (ii)

(iii)

The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse (s 61DA(2)). 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 (s 61DA(4)). In the case of interim orders, the presumption can be displaced if ‘the court considers that it would not be appropriate in the circumstances for the presumption to be applied’ (s 61DA(3)).

165 Smyth et al., above n 2.

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Despite the apparent clarity of these categories, it is not always clear in the cases whether a court has decided the presumption does not apply or whether it is being rebutted. In some cases, both options may be available. Where the argument is made that the presumption should be rebutted, the Full Court (Bryant CJ, May and Ainslie-Wallace JJ) has held that, given the mandatory requirement to apply the presumption, explicit and cogent reasons for why ESPR is not in the best interests of the child must be provided.166 The tendency for courts to require clear evidence of family violence or abuse suggests that in practical terms the same requirement operates in relation to non-application of the presumption. However, in a growing number of cases it has been concluded that high levels of parental conflict may be sufficient to rebut the presumption of ESPR as not being in the child’s best interests. The decision of Bell J in Duncan & Dylan is one such example.167 The parents’ relationship had been characterised by family violence, and the mother had made allegations that the father had viewed child pornography and sexually abused the child. While Bell J was ‘more than satisfied’ that abuse had not taken place, she concluded that the level of parental conflict meant that an order for ESPR was contrary to the interests of the child. Her Honour explained: I must confess I agonised over this. The mother opposes [ESPR], the father is proposing it. I must say that I think in a case such as this that the parties are not communicating exceptionally well with each other. The mother conceded that she could use a communication book, and that may diminish the feelings at this stage, but for years the expert has said unless there can be some sort of communication between the parties which puts aside the dislike, distaste or whatever you would like to say—the distrust of the other party, it is almost impossible to have joint parental responsibility. I think in this case, because of the mother’s—and I am saying not unreasonable fears—she would not be able to advance the welfare of the child if there was joint parental responsibility.168

A similar position was taken by the Full Court (Bryant CJ, Faulks DCJ and May J) in Parkin & Sykes,169 which upheld the first instance decision of Johnston J to award sole parental responsibility to the mother. Johnston held that ‘shared parental responsibility requires a level of communication and cooperation between parents’ that was not present in the case. The parents had a very poor relationship, did not speak with one another, and had been ‘locked in conflict since separation.’170 Justice Johnston also held that two previous sets of final orders, which attempted to facilitate a meaningful relationship with both parents, had exposed the child to harm. Such harm included a continuation of the litigation, causing psychological harm to the child due to ‘the very complex dynamics involved in this family 166 167 168 169 170

Dundas & Blake [2013] FamCAFC 133. Duncan & Dylan [2012] FamCA 430. ibid., [27]. Parkin & Sykes [2013] FamCAFC 87. ibid., [185], [183]. See also Hardie & Capris [2010] FamCA 1046, [155] where the Court followed Chappell & Chappell on similar grounds. Murphy J held that the ‘level of dysfunction in the parental relationship, the nature and longevity of the conflict between the parents’ and that fact his Honour found it difficult to discern any evidence that would persuade him of optimism for the future combined to ‘inform a conclusion that these parents have little if any prospect of engaging in the nature and level of communication required of people who are to share parental responsibility.’

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endeavouring to implement the [previous] orders.’171 Upholding Johnston J’s conclusion that the presumption of ESPR was rebutted, the Full Court held that ‘there was no utility in adopting orders which provided the parties with a further chance to attempt shared parenting arrangements. Indeed if the child’s best interests were to remain paramount, on the expert evidence there was no choice for the trial judge but to make the kind of orders he did.’172 These cases suggest that greater judicial caution is being exercised in high-conflict cases compared to immediately after the 2006 amendments, perhaps due to the post-2006 research and the 2012 amendments (Chapters 6 and 9). However, in the absence of systematic research on whether this is in fact the case, it is not possible to draw any conclusions. This is particularly the case given that the position, as set out in Goode, remains that even where the presumption in favour of ESPR is not applicable because of family violence or abuse, it is still possible to order ESPR if it is in the child’s best interests.173 That this was occurring was confirmed in 2009 by the AIFS evaluation finding that ‘while there is some relationship between an allegation of family violence or child abuse being made in proceedings and an outcome other than shared parental responsibility, even in cases with allegations of family violence or child abuse, in the majority of cases there is a shared parental responsibility outcome.’174 The 2012 decision of Hutley & Hutley, which applied the pre-2012 amendment law,175 demonstrates how it occurs. In Hutley & Hutley, Austin J held that the presumption of ESPR was not applicable due to the father’s past family violence towards the mother (for which he was convicted). Nevertheless, an order of ESPR was made on the basis of the child’s best interests.176 The judge’s reasoning was that while the couple continued to have conflict (the violence had ceased), ‘when minded to do so’ they had been able to communicate constructively.177 By contrast, if the mother was given sole parental responsibility, it was the judge’s view that there was little chance she would consult with the father about major long-term issues. It is also possible than where a court concludes that the presumption is rebutted under section 61DA(4) on the grounds of family violence, the parents can still agree to ESPR and the court will not interfere with the agreement. In North v North,178 the father had perpetrated extensive and corroborated family violence against the mother, much of 171 Parkin & Sykes [2012] FamCA 187, [166]. A similar conclusion was reached by the Full Court in Marvel v Marvel (No 2) [2010] FamCAFC 101. In Marvel, the court held that an order for equal shared parental responsibility in circumstances of high parental conflict ‘would inevitably lead to further conflict and perhaps contravention applications’, which could be adverse to the children’s best interests. 172 Parkin & Sykes [2013] FamCAFC 87, [84]. 173 Goode [2006] FamCA 1346, [46]–[48]. 174 Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3, p 189. The evaluation found that, in cases with no family violence or abuse allegations, 90% have a shared parental responsibility outcome, compared to 76% of cases where both family violence and child abuse are alleged, 80% of cases where family violence alone is alleged, and 72% of cases where child abuse alone is alleged. 175 This is because it was commenced prior to the amendments coming into effect. 176 Hutley & Hutley [2012] FamCA 679, [105]–[116]. 177 ibid., [112]. 178 North & North [2010] FamCA 306.

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which was witnessed by the child, who was aged 11 at the time of the trial. The father also frequently threatened to kill himself if the mother left him. On one occasion he made such a threat while holding a knife in the presence of the child, after having picked up and thrown the table at which the child sat. The parents sought orders with regard to how much time the child should spend with each parent, with the father requesting equal shared time. However, the parents agreed to share parental responsibility. In making his orders, Cronin J noted that the presumption of ESPR does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. Based on the extensive evidence, Cronin J was satisfied that the father had been a perpetrator of family violence and, as such, the presumption of ESPR did not apply (though Cronin J, while referring to section 61DA(2), stated that the presumption was ‘rebutted’).179 However, the judge went on to hold that this ‘does not mean that the parents cannot still agree on equal shared parental responsibility.’180 As he explained: Section 61DA(4) is a discretionary provision. It provides that 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 parents to have equal shared responsibility. To some extent, it would be illogical for the parties to jointly ask the Court as here, for an order for equal shared parental responsibility yet for the Court to then find that it is not in the best interests of a child for that order to be made.181

Justice Cronin’s statement seems to suggest that, in a case where the presumption of ESPR does not apply because of family violence but the parents request ESPR, the court will not engage in its own best interests analysis. This appears contrary to the principle that the child’s best interests must, at all times, remain paramount, as well as the statement in U v U that the court ‘is not, on any view, bound by the proposals of the parties’.182 Rather, all proposals must be thoroughly considered to properly determine what is in the child’s best interests. Justice Cronin’s decision also appeared unworkable in reality, given his conclusion that ‘at the moment [the parents] cannot agree on anything’183 and that consultation had occurred on only ‘rare occasions’ in the past.184

8.4.2.3.2 ESPR and non-parents Applications for parenting orders by non-parents are discussed in detail in Chapter 9. However, given our focus in this chapter on legislative pathways, we now briefly discuss the legislative pathway for non-parents given the conclusion in Aldridge & Keaton185 that the presumption of ESPR does not apply to non-parents. As discussed earlier, it is clear that parenting orders, including orders for ESPR, can be made in favour of non-parents and that a natural parent with parental responsibility will 179 This blurring in day-to-day practice of the distinction between non-application and rebuttal was also identified in the AIFS Evaluation. Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3, p 351. 180 North & North [2010] FamCA 306, [197]. 181 ibid., [198]. 182 U v U [2002] HCA 36, [80] (Gummow and Callinan JJ). 183 North & North [2010] FamCA 306, [195]. 184 ibid., [201]. 185 Aldridge & Keaton [2009] FamCAFC 229.

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not be afforded any automatic priority.186 However, the Full Court held in Aldridge held that the presumption of ESPR does not apply to non-parents. The Full Court endorsed the comments of Moore J in Potts & Bims, in which she took the view that ‘the presumption of equal shared parental responsibility imposed by section 61DA [and the application of section 65DAA that may follow] … are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.’187 Thus, an application involving a non-parent is determined on the basis of what is in the best interests of the child, which may include the making of an order for parental responsibility in favour of a non-parent. The legislative pathway to be followed may also vary depending on whether both parents are available. While non-parents may apply for orders granting them parental responsibility, it was held by Murphy J in the FCoA case of Dunstan and Jarrod188 that the presumption of ESPR as between the parents needs to be displaced (by reference to section 61DA(2) or (4)) before an order allocating parental responsibility to a non-parent could be made. In Dunstan, which involved a dispute between the child’s foster parents and her biological father, the presumption was easily rebutted as the mother had given the child up for adoption and had shown little, if any, interest in her since. It was therefore open to the foster parents, with whom the child had resided since shortly after birth, to seek orders allocating parental responsibility.

8.4.3 Step 3: (Shared) time arrangements under section 65DAA The final stage of the three step process enunciated in Goode is the determination of the time the child will spend with each party. Disputes about parenting time most commonly centre around disagreement over where the child will live, although overnight stays, visitation and other forms of interaction (for example, telephone, letters and internet communication) may also be in issue. While the three stages of analysis required by Goode are distinct, the terms of section 65DAA link stages two and three. In Goode, the Full Court held that where the presumption of ESPR applies, the court must consider making an order that the child spend equal or substantial and significant time with both parents (section 65DAA). This conclusion was clarified by the Full Court in Marvel & Marvel,189 which held that section 65DAA is triggered only when an order for ESPR has been made (or will be made).190 Marvel is more clearly consistent with section 65DAA, which states that where an order for ESPR is made or is proposed to be made, the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable (section 65DAA(1)(a) and (b)). If it is, the court is directed to 186 187 188 189 190

Valentine & Lacerra & Anor [2013] FamCAFC 53, [41]. Aldridge & Keaton [2009] FamCAFC 229, [115] (Bryant CJ, Boland and Crisford JJ). Dunstan & Jarrod [2009] FamCA 480. Marvel [2010] FamCAFC 101(Faulks DCJ, Boland and Stevenson JJ). For a discussion of this distinction see Richard Chisholm, ‘From Goode to Marvel-ous’ (2011) 25 Australian Journal of Family Law 153.

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consider making an order that the child spend equal time with each of the parents (section 65DAA(1)(c)). Where a parenting order is made or is proposed to be made for ESPR but the court does not make an order for the child to spend equal time with each of the parents, it must consider ordering that the child spend ‘substantial and significant’ time with each of the parents, again after considering whether it is in the best interests of the child and reasonably practicable (section 65DAA(2)). Goode, however, also indicates that equal time or substantial and significant time must be considered even if the presumption of ESPR does not apply if either parent seeks such an arrangement, and may also be considered if they do not (for example, if the issue in dispute relates to telephone or internet communication).191 Ultimately, the decision is based on the child’s best interests and what is reasonably practicable. In Goode, the Full Court further held that the juxtaposition of section 65DAA(1)(a), (b) and (c) suggested that ‘consider’ will involve ‘the need to consider positively the making of an order’.192 Strong encouragement was thus given to the making of orders for shared time. In addition, advisors, defined as ‘legal practitioners, family counsellors and consultants, and family dispute resolution practitioner’ (section 60D(2)) are obliged to inform clients who they are advising in relation to entry into a parenting plan (7.5.1.5) that, if equal time would be in the child’s best interests and reasonably practicable, they could consider the child spending equal time with each parent. If equal time is not in the child’s best interests or not reasonably practicable, then parents must be advised to consider the child spending substantial and significant time with each parent, if this would be in the child’s best interests and reasonably practicable (section 62DA(2)).

8.4.3.1 Meaning of ‘substantial and significant’ time ‘Substantial and significant time’ is defined for the purpose of Part VII, but ‘equal time’ is not. While definitions of ‘equal time’ in other contexts vary, the AIFS evaluation defined it as ‘circumstances in which children spend a similar number of nights with each parent.’193 For the purposes of the evaluation analysis of court files, ‘shared care time’ was defined as involving a 35–65 per cent division of nights between parents;194 this suggests that ‘substantial and significant time’ would translate to one parent having about 35 per cent time. Consistent with this, in the child support context, DHS-CS now classifies 35–65 per cent of nights with each parent as reflecting ‘shared care time’ (11.4). However, it is not uncommon for ‘shared time’ definitions to adopt a 30 per cent threshold.195 To be ‘substantial and significant time’ for the FLA, the time the parent spends with the child must include days that fall on weekends and holidays as well as days that do not, and must allow the parent to be involved in the child’s daily routine and in occasions and events that are of particular significance to the child as well as those that are of special significance 191 Goode [2006] FamCA 1346, [47]–[48]. In coming to this conclusion, the Court applied the High Court decision of U v U (2002) 211 CLR 238; [2002] HCA 36. 192 Goode [2006] FamCA 1346, [64]. See also McCall v Clark [2009] FamCAFC 92. 193 Kaspiew et al., Evaluation of the 2006 Family Law Reforms, above n 3, p 111. 194 ibid., 168. 195 For example, Bruce Smyth, Richard Chisholm, Bryan Rodgers and Vu Son, (forthcoming), ‘Legislating for Shared-Time Parenting: Insights from Australia?’ (2014) 77 Journal of Law and Contemporary Problems.

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to the parent (section 65DAA(3)). However, where substantial or significant time is appropriate, the court is required to formulate an order that complies with the definition in both form and substance. For example, in Eddington & Eddington (No 2),196 the father appealed the decision of Rose J, on the basis that while the orders technically complied with section 65DAA(3), due to extended periods of no contact, including gaps of up to two weeks, they could not be said to provide the children with ‘substantial and significant’ time with their father. The Full Court of FCoA (Finn, Coleman and Collier JJ) agreed, holding that the overall amount of time the children spent with their father was substantial, but the significance of the time spent together was, in essence, undermined by the long absences.197 Thus, ‘substantial and significant’ time with a parent is not simply a matter of quantum. How it is structured is also important. The Court was careful to stress, however, that the case turned ‘on its own particular facts and circumstances’, including the unusual nature of the father’s work schedule.198

8.4.3.2 Reasonably practicabLE Where a court concludes that equal or substantial time is in a child’s best interests, it must then assess the reasonable practicability of such arrangements. Assessing reasonable practicability, section 65DAA(5) requires a court to have regard to: (a) (b)

(c)

(d) (e)

how far apart the parents live from each other; and 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 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 the impact that an arrangement of that kind would have on the child; and such other matters as the court considers relevant.

Prior to the High Court decision in MRR in 2010, the requirement of reasonable practicability was given minimal consideration. In MRR, Federal Magistrate Coker (as he then was) considered that equal time would be in the best interests of a five-year-old child and ordered a week about arrangement that required the mother to live in Mt Isa where the father worked and the parties had briefly lived, rather than in her home town of Sydney. The Full Court upheld the finding. On appeal, however, the HCoA held that the federal magistrate had erred in not considering and making findings regarding the child’s best interests and reasonable practicability. The Court held: Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), 196 Eddington & Eddington [2007] FamCA 1299. 197 ibid., [54]. 198 ibid., [66].

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to the making of an order. The words with which par (c) commences (‘if it is’) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.199

The HCoA further stated that ‘reasonable practicality’ is concerned with the ‘reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent’.200 Thus, the federal magistrate had erred in treating evidence regarding the child’s best interests as determinative of the question of reasonable practicality. Had an assessment of reasonable practicality been undertaken based on the evidence before him, the federal magistrate could not have made an order for equal time. The mother was living in a caravan park in Mt Isa, could not access appropriate rental accommodation, had limited opportunities for employment (in contrast to a full-time opportunity available to her in Sydney), was isolated from her family in Sydney, and had been described by the Family Consultant as ‘despondent’ and ‘depressed’.201 Following the decision in MRR, concern was expressed by Richard Chisholm and Patrick Parkinson202 regarding the impact of MRR on existing orders. They pointed out that the HCoA’s ruling requiring courts to make a specific finding that a child spending equal time or substantial and significant time with the parents is reasonably practicable before making such orders raised questions about the validity of pre-MRR consent orders where no reasons were delivered, with the effect that it was impossible to demonstrate that the section 65DAA factors had been addressed as MRR requires. In response to this concern, the Family Law Act Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 (Cth) was passed in December 2010. The Act retrospectively validated any orders that may have been rendered invalid by the HCoA’s decision in MRR. It also amended the FLA to make clear that the court may, but is not required to, consider each of the statutory criteria in section 65DAA(1) and (2) when considering an application that it make a parenting order by consent where parents have, or are to have, equal shared parental responsibility for the children. The question of what is reasonably practicable also requires judges to consider whether the order will be practicable when it takes effect. In Wainder and Wainder,203 the mother and father first sought orders when their daughter was two years old. The parents lived in Sydney, but a considerable distance apart. Both parents sought ESPR. The father sought equal time, while the mother sought orders that the child live primarily with her. At trial, Austin J made orders for ESPR and that the child spend increasing time with her father, culminating in equal time (week about) when she was five years old. The mother appealed the decision on the basis that Austin J erred in making ‘open ended’ equal time orders 199 MRR v GR (2010) 240 CLR 461; [2010] HCA 4, [13]. 200 ibid., [15]. 201 ibid., [18]. 202 Richard Chisholm and Patrick Parkinson, ‘Reasonable Practicability as a Requirement: The High Court’s Decision in MRR v GR’ (2010) 24 Australian Journal of Family Law 55. 203 Wainder & Wainder [2011] FamCAFC 181 (Finn, Thackray and Ainslie-Wallace).

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with regard to a two-year-old child, without any consideration of whether those orders would be ‘reasonably practicable’ when the child started school. In allowing the appeal, the Full Court held that though Austin J did determine a number of issues to which section 65DAA(5) (reasonable practicality) refers, he ‘did not either expressly or inferentially consider the impact on the child of the distances necessary to be travelled to school … in light of the parties’ residences and their expressed reluctance to move.’204 The Full Court concluded that: where the court proposes to make orders stretching into the future, the consideration of whether a proposed order is reasonably practicable should focus on the date of enlivenment of the order. The trial Judge is required to make a prediction at the date of trial on the evidence then before him or her as to whether at the date on which the order takes effect, it will be practicable or ‘feasible’.205

8.5 After court orders are made The Australian family law system has been largely predicated on ‘once-and-for-all’ decision making about parenting orders, and yet in family life nothing stands still. In this section we outline the substantive law regarding appeals, variation and enforcement. The following passages from the 2001 report of the Family Law Pathways Advisory Group introduce some of the issues facing parents and children after decisions are made about parenting following separation: Many people told us that they were unhappy with the decisions made at the point of separation, when emotional and, often, financial pressures made it difficult to focus  … Often the circumstances under which a court order is made have not facilitated a workable solution which has fully considered the best interests of the child, because of pressure applied by one party on the other, lack of time, exhaustion, cost or lack of appropriate help … Many people also told us that they couldn’t see how they could improve the situation. Returning to court appeared to be the only option. Continued disputation over residence and, particularly, contact is high for a relatively small, but significant, group of people. Even where disputation is not high, maintaining parenting arrangements over time, whether after agreement or order, often needs extra support. Children are inevitably caught in the middle, particularly if parents do not know where to get help.206

A small number of people never manage to entirely work through the process for legal or emotional reasons. They become dependent on external decision makers such as the courts or government administrators, and return again and again, either with quite trivial issues or with serious issues that they are incapable of resolving. Considerable resources are

204 ibid., [27] (Finn, Thackray and Ainslie-Wallace JJ). 205 ibid., [31]. 206 Family Law Pathways Advisory Group Report, Out of the Maze: Pathways to the Future for Families Experiencing Separation, Commonwealth of Australia, Canberra, 2001, p 60. See also Bruce Smyth, Ruth Weston, Lawrie Moloney, Nick Richardson and Jeromey Temple, ‘Changes in Patterns of Post-Separation Parenting over Time: Recent Australian Data’ (2008) 14 Journal of Family Studies 23.

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absorbed by this group and this can deny timely service to others. Children are very often caught in this cycle.207 While our discussion in this chapter has focused on fully litigated matters, consent orders may also be agreed to in circumstances where there are high levels of ongoing conflict between the parties (Chapter 7).208 As also discussed in Chapter 7, ‘agreement’ may not necessarily reflect a desired choice or even an acceptable compromise. Research has shown that women are particularly likely to agree to arrangements that they do not consider to be in their children’s best interests as a result of a range of pressures, including lack of resources to instigate or maintain legal action.209 While it is clear that ongoing litigation and conflict are also not in a child’s best interests,210 children’s matters can always be reopened on the combined basis of the child’s best interests and changes in family circumstances. Specifically, the rule in Rice and Asplund requires that a threshold test of a ‘material change in circumstances’ be demonstrated (8.5.2).211 Being able to reopen matters on the basis of the child’s best interests is important, but nonetheless opens the door open to the use of litigation as tactic of harassment. As noted earlier (8.4.1.3.4) in extreme cases the court has the ability to declare an applicant vexatious and prevent further application without leave (section 102QB).212

8.5.1 Appeals In the aftermath of an unfavourable decision, a party may consider appealing. The cost of appealing will often be a factor in their decision,213 as will advice about the prospects of success. However, given that parties in FLA proceedings are often self-represented— 38 per cent of all FCoA trials in 2012–13 included at least one self-represented litigant— the cost of proceedings is not necessarily discouraging.214 Most family law appeals are made to the Full Court of the FCoA. An appeal to the High Court requires special leave (section 95), which is rarely granted. During 2012–13, 14 applications for special leave to appeal from decisions of the Full Court were filed in the HCoA. Of these, seven applications for special leave were determined by the Court, seven were not heard, and none were granted.215 One appeal was heard and allowed where leave had been granted in the previous calendar year. 207 Family Law Pathways Advisory Group Report, above n 207, p 20. 208 Jennifer McIntosh and Richard Chisholm, ‘Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation’ (2008) 14 Journal of Family Studies 37, 38. 209 Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) 30 Journal of Law and Society 156. 210 Jennifer McIntosh, ‘Enduring Conflict in Parental Separation: Pathways of Impact on Child Development’ (2003) 9 Journal of Family Studies 63; Nina Lucas, Jan Nicholson and Bircan Erbas, ‘Child Mental Health after Parental Separation: The Impact of Resident/Non-Resident Parenting, Parent Mental Health, Conflict and Socioeconomics’ (2013) 19 Journal of Family Studies 53. 211 The rule in Rice and Asplund survived the 2006 amendments. See, e.g., Sandler & Kerrington [2007] FamCA 479; Moose & Moose [2008] FamCAFC 108. 212 See Cannon & Acres [2014] FamCA 104. 213 Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) 30 Journal of Law and Society 156. 214 Family Court of Australia, Annual Report 2012–2013, Family Court of Australia, Canberra, 2013, p 56. 215 ibid., p 74.

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Appeals from decisions about parenting orders are essentially appeals from the exercise of discretion, with all the difficulties that involves. As Parkinson and Behrens have noted, ‘the High Court has emphasised that the function of the Full Court is to correct errors rather than to substitute its own judgment’.216 The two main FLA cases setting down the principles for appellate decision making are Gronow v Gronow217 and CDJ v VAJ.218 In Gronow v Gronow219 (a 1979 appeal from a decision of the Full Court on a custody matter), the HCoA quoted House v The King,220 where Dixon, Evatt and McTiernan JJ said (in the gendered language that was more accepted at that time) that what is required is an error of law, a material error of fact, or that the decision is so clearly unreasonable or unjust that it can be inferred that discretion has miscarried: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.221

The HCoA has also cautioned that, given that the FLA jurisdiction to make parenting (and financial) orders is a discretionary jurisdiction, it is not enough that the appeal court would have reached a different decision, and that caution should be exercised in disrupting first instances decisions made on the basis of direct and detailed engagement with the evidence. In CDJ v VAJ (McHugh, Gummow and Callinan JJ), it was stated: Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet absent legal error or a plainly unjust result, the 216 Patrick Parkinson and Juliet Behrens, Australian Family Law in Context: Commentary and Materials, 3rd edn, Lawbook Company, Sydney, 2004, p 885. For additional commentary see Juliet Behrens, ‘Family Law’, in Tony Blackshield, Michael Coper, and George Williams (eds), The Oxford Companion to the High Court of Australia, Oxford University Press, Melbourne, 2001, pp 269, 271. 217 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513. 218 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172. 219 Gronow v Gronow, above n 217. 220 House v The King [1936] HCA 40; (1936) 55 CLR 499. 221 ibid., 504–5 (Dixon, Evatt and McTiernan JJ; Starke J agreeing).

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order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.222

This point was emphasised again in U v U.223 The move post-2006 to more firmly bound judicial discretion in decision making about parenting orders has provided more opportunities for argument that a judge has made an error of law and thus for appeals to be made. However, in numerous recent cases the Full Court has stated that the failure to expressly follow the prescribed ‘legislative pathway’ will not lead to an appealable error unless there was a failure to give adequate reasons or to have regard to matters that must be considered under the legislation.224

8.5.2 Variation Child support is reassessed each year to reflect changes in the financial circumstances of parties (see Chapter 11). Property orders, on the other hand, are much harder to change (see 13.9). The law on variation of parenting orders reflects an intermediate approach, which recognises that circumstances change, and that orders may need to be varied in the best interests of the child. Courts exercising FLA jurisdiction have power to ‘discharge, vary, suspend or revive some or all of an earlier parenting order’ (section 65D(2)). There are no particular legislative provisions in relation to variation (contrast section 79A, which details the narrow range of circumstances in which property orders may be varied or set aside: 13.9). The court is simply required to apply the legislative provisions in relation to parenting orders generally. This absence of legislative limitations on the varying of parenting orders raises the prospect that a party might apply for a variation of a parenting order as an alternative to a formal appeal. The case law on variation of parenting orders clearly indicates that when making a determination about whether or not to vary an order, a court must make an assessment about whether there are changed circumstances or whether it has been shown that, at the time of the prior hearing, some material factor was not disclosed to the court (the so-called ‘Rice and Asplund test’).225 The Rice and Asplund requirements survived a challenge based 222 223 224 225

CDJ v VAJ [1998] HCA 67, [140]; (1998) 197 CLR 172, 218–19 (McHugh, Gummow and Callinan JJ). U v U [2002] HCA 36; 211 CLR 238. See, e.g., Taylor v Barker [2007] FamCA 1246, [62]–[63]; Starr v Duggan [2009] FamCA 115. In the Marriage of Rice and Asplund (1978) 6 Fam LR 570. For a detailed consideration of the rule, see Sarah Middleton, ‘Time for a Change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund’ (2006) 34 Federal Law Review 397.

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on the 1996 amendments to Part VII in King and Finneran,226 although Collier J (hearing an appeal from then FMCoA) clarified: It is not the case that an application of the Rice v Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing.227

Collier J also indicated that while a change in circumstances is still required, the change may be made up of a number of ‘component parts’, suggesting that it will be now be easier to achieve a variation: The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of the number of changes alleged to have occurred.228

Since the 2006 amendments, the case law has emphasised that, at whatever stage Rice & Asplund is applied, the Court is also bound to take into account the best interests considerations. The emphasis on the best interests of the child, particularly in an environment in which shared time is encouraged, also suggests that a variation may now be easier to achieve. The Full Court (Bryant CJ, Finn & Cronin JJ) explained the application of the rule in the context of the 2006 amendments in Marsden & Winch: There are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at: (1) (2) (3)

The past circumstances, including the reasons for the decision and the evidence upon which it was based. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.229

In Prewett & Mann, the Full Court cited Marsden & Winch with approval, noting that the approach is a manifestation of the best interests principle, founded on the notion that ‘continuous litigation over a child or children is generally not in their interests’230 and

226 King and Finneran [2001] FamCA 344 (Collier 5). 227 ibid., [43]. 228 ibid., [62]. See also KB & TC [2005] FamCA 458 (Bryant CJ, May, and Boland JJ) (in which a change in children’s wishes was regarded as a sufficient change in circumstances) and R & BH [2006] FamCA 919 (Kay, Warnick and May JJ). 229 Marsden & Winch [2009] FamCAFC 152, [50] (Bryant CJ, Finn and Cronin JJ). 230 Prewett & Mann [2013] FamCAFC 130, [9]–[10] (Ainslie-Wallace, Ryan and Le Poer Trench JJ).

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that the application of the rule is influenced by the nature and degree of change sought to the earlier order.231

8.5.3 Enforcement While it might seem obvious at first glance that parenting orders should be enforced, enforcement is a highly controversial issue because of its serious consequences for parents and children. In this section we focus on enforcement issues within a domestic context. However, parenting orders often have a foreign element (for example, cases of international relocation or where a child is wrongfully removed from Australia), giving rise to different kinds of enforcement issues, which are discussed at 9.7. The enforcement of FLA parenting orders has proven to be a perennial problem. Fathers have perceived the system as enforcing their child support obligations to a greater extent than their parenting orders, regarding this as evidence of a biased system.232 By contrast, mothers often point to the problem of fathers failing to turn up for contact. As the 2000 Family Law Pathways report noted: Resident parents, usually mothers, also have concerns with the enforcement of contact orders as they see that children suffer if their non-resident parents do not turn up for contact … If the resident parent wants to vary the order in response to the enforcement application, or commence enforcement proceedings themselves, legal aid is rarely available.233

While gender politics play a significant role in the debate about the enforcement of parenting orders, the focus has tended to be on fathers’ complaints, rather than on mothers’, when the reality seems more complicated. Although the case law certainly indicates that there are mothers who make it difficult for fathers to spend time with their children, there is also research highlighting the significant efforts that mothers often go to in order to facilitate father–child relationships, even in circumstances where fathers frequently fail to turn up.234 Indeed, as noted below, the contravention provisions have not provided a basis for arguing that this constitutes non-compliance. In 2001, after the 1996 amendments, Helen Rhoades described the discourse surrounding enforcement of parenting orders as reflecting the stereotype of the ‘no-contact mother’: ‘a woman who is “selfishly determined to put her own interests ahead of those of her children” by denying them contact with their father’.235 She argues that this construction had become: 231 See SPS & PLS [2008] FamCAFC 16 (Warnick J, on appeal from the FMCoA). See also Bretton & Bondai [2013] FamCAFC 168, where the Full Court (Finn and Strickland JJ, May J dissenting) confirmed the trial judge’s finding that the failure to reintroduce contact (which was assumed in existing consent orders) constituted a change in circumstances. 232 Family Law Pathways Advisory Group Report, above n 207, p 61. 233 ibid., p 61. 234 Belinda Fehlberg, Christine Millward and Monica Campo, ‘Shared Post-Separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247; Belinda Fehlberg, Christine Millward, Monica Campo and Rachel Carson, ‘Post-Separation Parenting and Financial Settlements: Exploring Changes over Time’ (2013) 27 International Journal of Law, Policy and the Family 359. 235 Helen Rhoades, ‘The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father”’ (2002) 16 International Journal of Law, Policy and the Family 71, 74.

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a regularly used discursive strategy employed on behalf of non-resident parents in family law litigation, even when the caregiver is not seeking to have contact suspended altogether. At its extreme end, the argument is couched in terms of ‘parental alienation syndrome’, a classification which (purportedly) draws on psychiatric discourses of deviance.236

Rhoades’s empirical study (which drew on 100 FCoA files ‘in which an enforcement application was listed for hearing in 1999’)237 suggested that ‘the reasons for the breakdown of contact orders are far more complex than has been presumed by recent policy directions and by the stock stories of selfish mothers’.238 The most common reason for denial of contact was ‘the resident parent’s concerns about the contact parent’s parenting capacity’.239 Most commonly in these cases the court found that the resident parent had not breached the orders, often resulting in a variation of the contact arrangements to provide safer or more appropriate arrangements for contact.240 Triggers for applications for enforcement orders were often factors unrelated to the contact itself, including child support claims, a parent re-partnering, or unresolved feelings about the relationship breakdown. The orders that the court can make when dealing with contraventions depend on whether ‘a contravention is alleged to have occurred but is not established’; or ‘the court finds that a contravention has occurred but there is a reasonable excuse for the contravention’; or ‘the court finds that there was a contravention and there is no reasonable excuse for the contravention’ (section 70NAA) and allow for more flexible range of remedies, including variation of the original orders, repayment of money expended or ‘make-up’ time. Sanctions may also be imposed (8.5.3.3).

8.5.3.1 What is a contravention? A contravention of an order occurs when a person has intentionally failed to comply with the order, made no reasonable attempt to comply with the order, intentionally prevented compliance with the order by a person bound by it, or aided and abetted a contravention of the order by a person bound by it (section 70NAC). Relevant to interpreting and applying these provisions are sections 65M–P, which outline the general obligations created by parenting orders. For example, section 65M, which deals with the general obligations created by a parenting order that deals with whom a child lives, states that a person must not remove the child from the care of the person, refuse or fail to deliver or return the child to the person, or interfere with the exercise or 236 ibid. 237 ibid., 75. 238 ibid., 87–8. In a later study, Rhoades identified the diverse factors behind contraventions: ‘factors as diverse as a parent feeling betrayed because the other parent “walked out” of the relationship, the costs of travelling to visit children who live on the other side of town or the other side of the country, a parent who feels hurt because their former spouse has found a new partner or given birth to a new baby, a child who has reached adolescence and refuses to stick to the old routines or is simply bored during contact visits, a parent missing out on being with their child on a special occasion because it is not (or because it is) a contact weekend, a history of domestic violence in the parents’ relationship, fears that a child is being abused, and anxieties because a parent or their new partner has an alcohol or drug abuse problem’: Helen Rhoades, ‘Contact Enforcement and Parenting Programmes: Policy Aims in Confusion?’ (2004) 16 Child and Family Quarterly 1, 15. 239 Rhoades, above n 235, p 75. 240 ibid.

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performance of any of the powers, duties or responsibilities that the person has under the order.241 The case law has long established that a parent has an obligation to take reasonable steps to facilitate, and encourage a child to avail him- or herself of, contact that has been ordered by the court.242 In Stevenson v Hughes, Fogarty J stated that a parent must take ‘[a]n active role with an obligation to positively encourage access.’243 In D & C the Full Court allowed the wife’s appeal regarding contravention, but expressed no disagreement with the trial judge’s view that compliance ‘is not merely to be “a token effort” disguised to convey the burden of compliance.’244 Consistent with this, the general obligations created by a parenting order that deals with those with whom a child spends time are that ‘[a] person must not: (a) hinder or prevent a person and the child from spending time together in accordance with the order; or (b) interfere with a person and the child benefiting from spending time with each other under the order’ (section 65N(2)), in addition to the obligations on a resident parent identified above. In contrast, an issue around contravention that has given rise to more debate is whether, when an order has been made for a person to spend time with the child, it is a contravention of that order for the person in whose favour it is made to fail to do so. In B & B,245 the Full Court said that it would be highly unlikely to enforce a contact order against a non-resident parent because ‘it would be most unlikely that the children’s best interests would be served by requiring the contact parent to have contact which he or she did not wish to have’.246

8.5.3.2 Reasonable excuse A person may have a reasonable excuse for contravention of an order. The legislation does not, however, provide an exhaustive list of what will constitute a reasonable excuse. A reasonable excuse can include the respondent’s lack of understanding of the order, provided the court is satisfied that the respondent ought to be excused (section 70NAE(2)). In D & C,247 the mother took a seven-year-old child to a contact centre and, upon arrival, said ‘off you go’. The evidence at trial was that the mother expected that contact centre workers would take care of the physical changeover and that her obligation did not go beyond presenting the child at the centre. While the child went into the centre and was engaged by a worker, she refused to go into the room where her father was waiting. The trial judge, Dawe J, held that simply encouraging a child to attend a contact centre was insufficient to meet a parent’s obligation to facilitate contact. He stated: I am not satisfied that the mother made a genuine attempt to encourage [the child] to attend contact and I am certainly not satisfied that the mother made a genuine effort 241 See Rutherford & Marshall of the Family Court of Australia [1999] FamCA 1299 (Rutherford ). 242 In the Marriage of Stavros (1984) Fam LR 1025; Rutherford [1999] FamCA 1299; Matthews v Millar (1988) 12 Fam LR 205. 243 Between: Robyn Ann Stevenson Appellant/Wife and Kenneth Alan Hughes Respondent/Husband Appeal [1993] FamCA 14, [3] (Fogarty J). 244 D & C [2005] FamCA 1046, [22] (Kay, Warnick and Boland JJ). 245 B & B: Family Law Reform Act 1995 [1997] FamCA 33. 246 ibid., [10.64]. 247 D & C [2005] FamCA 1046.

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to insist to [the child] that she [the child] attend contact or positively encouraged contact. The mother has not used her position of authority over [the child] to ensure that [the child] does as she is told.248

However, on appeal the Full Court of FCoA (Kay, Warnick & Boland JJ) found that because the mother mistakenly thought that she was fulfilling her obligations under the orders, this constituted a reasonable excuse. In an earlier contravention application, the  mother was sentenced to 30 days’ imprisonment, of which she served part, before the decision was overturned.249 A reasonable excuse can also be established if ‘the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child)’ and the period was ‘not longer than was necessary to protect the health or safety of the person’ (section 70NAE(4)–(7)).250

8.5.3.3 Sanctions If a contravention is alleged but not established,251 the court may order ‘that the person who brought the proceedings … pay some or all of the costs of another party, or other parties, to the proceedings’ (section 70NCB(1)). The court must consider any previous proceedings alleging contravention in deciding what order to make under this section (section 70NCB(2)). If a contravention is established, but there is a reasonable excuse for the contravention, the court may make an order compensating the person for time lost with the child (section 70NDB). It must not do so if it would not be in the best interests of the child (section 70NDB(2)). If it does not do so, it may make an order for costs against the person who brought the proceedings (section 70NDC). This is likely to create a disincentive to the bringing of spurious contravention proceedings. If a contravention is established and there is no reasonable excuse for the contravention, then the powers of the court depend upon whether this is regarded as a more or less serious contravention (section 70NAA(3)(c)). It will be a less serious contravention if there is no previous order imposing a sanction or taking an action in respect of a contravention, unless the court dealing with the current contravention ‘is satisfied that the person who contravened the primary order has behaved in a way that shows a serious disregard for his or her obligations under the primary order’ (section 70NEA(2) and (4)) or if, despite the making of a previous order, a court dealing with the current contravention thinks it is more appropriate for the contravention to be dealt with as a less serious contravention (section 70NEA(3)).

248 ibid., [22]. 249 C & D [2004] FMCAfam 253 (Lindsay FM). 250 Childers & Leslie [2008] FamCAFC 5. On appeal, Warnick J overturned a dismissal of a contravention application. The child was ill and a doctor had ordered the child rest and not undertake much activity and as a result the mother for one weekend. The Court held this was not a reasonable excuse within the meaning of s 70NAE(5). By the time orders were finalised, over a year had passed and consequently the Court did not order compensatory time. 251 The standard of proof is on the balance of probabilities (s 70NAF(1)).

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In these less serious cases the court may make an order directing attendance at a postseparation parenting program(section 65LA)252 (7.7); make a compensatory parenting order; adjourn the proceedings to allow an application for a new order; make an order requiring the person who committed the contravention to enter into a bond; make orders for compensation for expenses incurred as a result of the contravention; and/or make an order for costs (section 70NEB). In relation to the power to order attendance at a parenting program, it has been pointed out that: this power will only apply once court proceedings have been initiated, and the majority of litigants who find themselves involved in enforcement disputes have made their arrangements by consent. Some researchers have also suggested that there may be a very small period of time following separation before people ‘close off the opportunity’ for self-analysis that might forestall such conflicts, particularly for men. Thus if we are to assist separated parents who are struggling with postseparation animosity outside of the court system, therapeutic services should be offered regardless of a person’s litigation status, and this should be accompanied by a government-sponsored community education campaign.253

In more serious cases there are additional powers to make a community service order; fine a person; or impose a sentence of imprisonment (section 70NFB). Sentences of imprisonment cannot be for more than 12 months, and must not be imposed unless the court is satisfied that it would not be appropriate to deal with the contravention in one of the other possible ways (section 70NFG). As just noted, a court may also make an order directing a party to the proceedings to attend a ‘post-separation parenting program’.

8.6 Conclusion Our consideration in this chapter of the legal framework for determining parenting disputes highlights the ways in which ESPR and shared time outcomes are encouraged by the legislation and case law. The legislative pathway described in Goode makes clear links between the presumption of ESPR and shared time, even in circumstances where the presumption of ESPR does not apply or has been rebutted. Thus, while there is no presumption in favour of shared time in the FLA, the effect of the decision-making pathway prescribed by Goode is that shared time is potentially under consideration in the majority of cases. Together with the research on court orders for shared parental responsibility discussed in Chapter 6254 the case law demonstrates the strength of emphasis on shared parental responsibility evident before the 2006 amendments and even more strongly after them. A paradox highlighted by this discussion arises from a divergence between the legislature’s concern to distinguish cases involving family violence and child abuse concerns through the non-applicability of the ESPR presumption and the common approach in agreement and decision making that holds that shared parental responsibility is in a child’s 252 A ‘post-separation parenting program’ is defined in s 4. Conditions for providers of post-separation parenting programs are set out in s 65LB. 253 Helen Rhoades, ‘Contact Enforcement and Parenting Programmes: Policy Aims in Confusion?’ (2004) 16 Child and Family Quarterly 1, 15–16. 254 Kaspiew et al., 2009, above n 3.

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best interests except in the most severe circumstances. Though the 2012 amendments may signal a new direction in cases where violence or abuse is alleged, and some evidence of this is emerging, the extent to which change occurs will depend on a range of factors. These include judicial interpretation of the new definition of ‘family violence’ (Chapter 6) and the extent to which sufficient resources are available at a systemic and individual level to apply the amount of forensic scrutiny required to establish these issues to the level of certainty required by the courts. The decision in Amador suggests the emergence of a realistic approach to this question in the context of research evidence establishing family violence is significantly underreported.

CHAPTER

9

Specific Issues in Parenting Disputes 9.1 Introduction 313 9.2 Shared time: What are courts deciding?  313 9.2.1 The AIFS Evaluation findings on shared time in litigated cases  314 9.2.2 Current data on shared time outcomes  315 9.2.3 Recent cases  317 9.3 Religion 325 9.4 Aboriginal and Torres Strait Islander children  331 9.4.1 Cultural recognition and law  334 9.4.2 Interpretation of the right to enjoy culture  335 9.4.3 Examples of cases applying the 2006 amendments  336 9.5 Applications by people who are not parents  339 9.5.1 Eligibility to apply  339 9.5.2 Current approach  340 9.5.3 The variable contexts of non-parent applicants  342 9.5.3.1 Grandparents 343 9.5.3.2 Putative fathers  346 9.5.3.3 Known sperm donors  348 9.6 Parental mental illness  349 9.7 Disputes as to where a child will live  353 9.7.1 Relocation disputes  354 9.7.1.1 Context 354 9.7.1.2 General approach to relocation decision making  357 9.7.1.3 General approach in interim relocation cases  360 9.7.1.4 Particular issues in relocation cases  361 9.7.1.5 Recent international developments  365 9.7.1.6 Concluding remarks in relation to relocation  368 9.7.2 International child abduction: The Hague Child Abduction Convention  369 9.7.2.1 Outline of the Hague Child Abduction Convention  370 9.7.2.2 Application of the Hague Child Abduction Convention: Key elements 372 9.7.2.3 Concluding comments in relation to international child abduction  380 9.8 Conclusion 380 312

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9.1 Introduction In this chapter we extend our discussion of the legal framework for the resolution of Family Law Act 1975 ( Cth) (FLA) parenting disputes by considering in greater detail several key issues that regularly arise. Our focus throughout is on how these issues are dealt with in the case law and how approaches have changed over time. We make reference to material establishing the broader policy and research context where this is available, and at various points reflect on how the broader themes of the book are demonstrated in approaches to these issues. We begin by considering recent case law (and court data) in order to provide insight into the circumstances in which the family law courts appear inclined or disinclined towards equal time and substantial and significant time outcomes (broadly, shared care). We then consider the relevance of parents’ views regarding their children’s religious upbringing; the significance of a child’s Aboriginal/Torres Strait Islander background in assessing what will be in their best interests; the particular issues that people who are seeking parenting orders, but who are not parents, may face in Part VII proceedings; the extent to which parental incapacity arising from mental illness shapes parenting outcomes; and cases that involve changing where the child will live (applications by a parent to relocate with the child, and cases involving international child abduction). Family violence and safety issues have been an integral part of the legislative framework since the 2006 amendments, so are discussed in Chapter 8. In the end, our discussion underlines that, with the exception of cases involving international child abduction, which are dealt with under a different regime, and despite the 2006 amendments that require particular outcomes to be considered and promote the ongoing involvement of parents in their children’s lives, a significant level of judicial discretion to determine the best interest of the child remains. As a result, the answer to the question of how a particular dispute will be determined is still likely to be: ‘It depends’. The tension between the principle that the child’s best interests remain the court’s paramount consideration when making parenting orders (FLA section 60CA) and increasing legislative direction, particularly since the 2006 amendments, regarding how that judicial discretion should be exercised adds a further layer of complexity and uncertainty to the area.

9.2 Shared parenting: What are courts deciding? In this section we focus on recent adjudicated parenting disputes in which shared time was sought and/or ordered, in order to gain a sense of current approaches. To provide wider context, we also consider recent data in relation to shared time outcomes in litigated cases. Our discussion builds on earlier chapters covering the 2006 amendments, key findings of research following those amendments, the 2012 amendments (Chapter 6), and the legal framework for resolution of parenting disputes (Chapter 8). We are particularly interested to explore whether patterns identified in the 2009 Australian Institute of Family Studies (AIFS) evaluation of the 2006 amendments1 appear to 1 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009.

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have changed since then, particularly since the 2012 amendments. Our focus in this section is thus on cases decided after those amendments came into effect. Yet it is also important to acknowledge that the cases to date do not provide clear guidance on the impact of the 2012 changes. This is because the amendments only apply to cases commenced on or after 7 June 20122 (the date when they came into effect) and, so far, most decisions involving applications and/or orders for shared time have involved proceedings commenced before that date. AIFS research currently underway (Chapter  5) will provide valuable information on the impact of the amendments on the broader separating population. The most recent cases can, however, provide a broad indication of the sorts of cases in which shared time is being ordered and not ordered following a period of significant research on the 2006 amendments and more recent legislative reform.

9.2.1 The AIFS Evaluation findings on shared time in litigated cases As discussed in Chapter 6, the 2006 amendments were accompanied by Federal Government funding for the AIFS to conduct a major evaluation of the changes. A key evaluation finding for present purposes was that adjudicated orders for shared care time (involving a 35  per  cent – 65 per cent division of nights between parents) had (using conservative estimates) increased from two per cent to 13 per cent of cases after the amendments.3 Consent orders for shared care-time arrangements were made in 17 per cent of cases after the amendments.4 The evaluation findings also suggested that, following the 2006 amendments, around 12 per cent of separating parents in the broader population had shared care time arrangements but that this group had been increasing gradually since the late 1990s rather than as a result of the amendments.5 As also discussed in Chapter 6, while numerically small (judicially determined outcomes apply in a tiny minority of separating families), the sharp increase in judicially imposed shared time arrangements found by the evaluation team was of concern because of the high level of conflict typically associated with fully litigated cases, when research consensus is that workable shared time is more likely when parents operate cooperatively and flexibly. It is also now well documented that family violence and safety concerns, mental health problems, and issues related to drug, alcohol and other addictions feature frequently in families using Australia’s family law system.6 In addition, it is clear that allegations of family violence and/or child abuse are raised in a majority of judicially determined cases (Chapter 5). An analysis of Family Court of Australia (FCoA) and then Federal Magistrates Court of Australia (FMCoA) (now Federal Circuit Court of Australia (FCCoA)) cases between 1 July 2006 (when the 2006 amendments came into effect) and the start of 2009, conducted as part of the evaluation, illustrated that these features were present in adjudicated shared time cases, although the evaluation team also emphasised that a wide variety of arrangements 2 3 4 5 6

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 45. Kaspiew, above n 1, p 128. ibid., p 125. ibid., pp 128–31. ibid., chapter 2.

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was ordered depending on the circumstances and consistent with the exercise of judicial discretion.7 It is now five years since the AIFS evaluation, during which time there has been further research on the 2006 amendments (Chapter 5).8 The 2012 amendments make clear that the court ‘is to give greater weight’ to the need to protect children from abuse, neglect or family violence than to the benefit of the child having a ‘meaningful relationship’ with both parents (section 60CC(2A)) (Chapter 5). This gives rise to the question whether the evaluation findings still reflect what is happening in litigated cases (our focus here) as well as in the broader population of separated parents (Chapter 5).

9.2.2 Current data on shared time outcomes There is some suggestion in recent data of a drop in the number of shared time outcomes in litigated cases since 2009. However, there are aspects of the available data that make it unwise to draw firm conclusions. Specifically, the FCoA’s 2010–11 Annual Report9 suggested that the number of shared time orders in adjudicated cases had declined over the previous few years. For example, in the case of parents with ‘majority shared time’ (a term that was not defined), the data indicated a drop from 15 per cent in 2008–9 to 12 per cent in 2009–10 to 10 per cent in 2010–11. Outcomes in consent orders had remained stable—for example, in the case of parents with majority shared time, at 18 per cent. The most common outcome in adjudicated and consent order cases was for children to live with their mother for the majority of the time and the second most common outcome was for them to live with their father.10 Over this period, the Court also collected data ‘on the main reasons when significant and shared time was not awarded to a parent’,11 which indicated that ‘[w]hen a child is not given significant time with a parent, the reasons often have to do with violence and abuse (including substance abuse), or result from mental health problems affecting a parent’.12 Further relevant factors were ‘entrenched conflict’ and ‘distance/transport/financial barriers’. However, these data were presented in a way that was difficult to interpret. They also provided an incomplete picture, as similar information was not available for the FMCoA, which in 2010–11 heard 85 per 7 ibid., pp 354–7. 8 For example, Judy Cashmore, Patrick Parkinson, Ruth Weston, Roger Patulny, Gerry Redmond, Lixia Qu, Jennifer Baxter, Marianne Rajkovic, Tomasz Sitek and Ilan Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the Australian Government Attorney-General’s Department, Social Policy Research Centre, University of New South Wales, 2010; Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells and Caroline Long, Post-Separation Parenting Arrangements and Developmental Outcomes for Infants and Children, Attorney-General’s Department, Canberra, 2010; Dale Bagshaw, Thea Brown, Sarah Wendt, Alan Campbell, Elspeth McInnes, Beth Tinning, Becky Batagol, Adiva Sifris, Danielle Tyson, Joanne Baker and Paula Arias  Fernandez, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families Who Separated Post-1995 and Post-2006, Attorney-General’s Department, Canberra, 2010; Belinda Fehlberg, Christine Millward and Monica Campo, ‘Post-Separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247. 9 Family Court of Australia, Annual Report 2010–11, Family Court of Australia, Canberra, 2011, pp 70–3, Figures 13.33 and 13.34, available at . 10 ibid., pp 70–2. 11 ibid., p 70. 12 ibid., p 73.

316 AUStralian FAMILY LAW: the contemporary context

cent of all federal family law matters filed (excluding Western Australia (WA) family law matters).13 These data are not reported in the FCoA’s 2011–12 or 2012–13 annual reports. While a continuing problem is that no data are available for the FCCoA, a recent analysis by Bruce Smyth and colleagues14 of administrative data from the FCoA collected by registrars and judicial associates between April 2007 and September 2012 is consistent with the patterns just described. Smyth and colleagues’ analysis of these data found that adjudicated orders for ‘approximately equal amounts of time’ (defined by the FCoA for data collection purposes as between 45 per cent and 55 per cent of time) were made in six per cent of cases in 2007–2008 and 10 per cent of cases in 2009 but then ‘declined sharply’ to three per cent of cases in 2011–2012. The most common outcome in adjudicated cases was for children to spend a majority of time with their mother (64–70 per cent of cases) followed by a majority of time with the father (22–30 per cent of cases). However, as Smyth and colleagues emphasise, these findings need to be read with caution. First, data were once again not collected from the FCCoA, which in 2012–13 determined 87 per cent of all federal family law matters filed, excluding WA (Chapter 2. 2).15 Also, the data collected by the FCoA and analysed by Smyth and colleagues focused on orders for equal time; this means that the figures for majority mother or father time must have included cases where substantial and significant time was ordered. Their findings in relation to adjudicated outcomes were, however, broadly consistent with their analysis of 2002–12 Department of Human Services—Child Support (DHS-CS) data and survey data from the Child Support Reform Study collected in 2006, 2008 and 2009, showing a temporary increase in shared-time parenting just after the introduction of the new child support formula­ mid-2008. Thus while the key finding of their analysis was that shared time arrangements in the broader separating population appear to have plateaued at 15 per cent, they also suggested that an increase in shared time outcomes in litigated cases and child support cases may be a temporary rather than permanent result of legislative reform. Smyth and colleagues suggest a range of reasons for this, including that ‘[e]specially when it was new, the legislation may have nudged parents, their advisers, and even the courts, towards shared-time arrangements in families unable to tailor those arrangements to the children’s needs’, but that over time, family law professionals ‘might have become more comfortable with the need to assess the extent to which shared-time arrangements represent the best outcome for each particular child’, encouraged by developments including research on the 2006 amendments (6.2.2), and most recently by the 2012 amendments (5.7.1).16 In contrast, Justice Strickland and Kristen Murray’s recent analysis of cases commenced after the 2012 amendments took effect and involving allegations of family violence tentatively suggested (given that there are very few such amendment decisions, most so far are interim decisions, and there is as yet no appellate authority) that courts are no less likely

13 Federal Magistrates Court of Australia, Annual Report 2010–11, Federal Magistrates Court of Australia, Canberra, 2011, p 38. 14 Bruce Smyth, Richard Chisholm, Bryan Rodgers and Vu Son, (forthcoming), ‘Legislating for Shared-Time Parenting: Insights from Australia? (2014) 77 Journal of Law and Contemporary Problems. 15 Federal Circuit Court, Annual Report 2012–13, Federal Magistrates Court of Australia, Canberra, 2013, p 39. 16 Bruce Smyth et al., above n 14.

CHAPTER 9: Specific Issues in Parenting Disputes 317

now to order shared time, although they may be less likely (at least at interim stage) to make orders in relation to parental responsibility (Chapters 5 and 8).17

9.2.3 Recent cases Our analysis of recent cases suggests that while divergent approaches can be seen, there is some evidence that, consistent with the FCoA data discussed above, judicial caution is being exercised when making final orders for equal shared time. While less caution appears evident in relation to substantial and significant time outcomes, there is a clear need for systematic research and analysis in this area. There are indications that courts are concerned about making orders for equal shared parental responsibility (ESPR) in cases involving intractable parental conflict, but once again outcomes appear variable. For example, Polites & Strathos,18 decided by Loughnan J in December 2013, involved a dispute over parental responsibility and parenting time by parents in relation to their two children, aged nine and seven at the time of the hearing. Polites19 is of particular interest because of the absence of risk factors typically evident in FCoA cases, which in turn suggested that shared time might be an appropriate option. Indeed, Loughnan J emphasised at the start of his judgment that: It should be recorded at the outset that these proceedings do not involve any of the pathology that usually characterises families requiring a judicial determination of their parenting dispute. Happily, there are no allegations of substance abuse, family violence or mental illness … The parents are competent and loving and the children are healthy, progressing well and enjoy good relationships with their parents. The court is called on to choose between one option or another because the parties were not able to make those choices. The court is left to exercise discretion between acceptable options and there are virtually no questions of principle involved. The issues might more appropriately have been addressed in the Federal Circuit Court.20

In Polites, the mother had been the children’s primary carer before separation in 2010. After separation, the children had remained living with her and had spent time with their father on weekends. The mother had resisted weekend overnight visits because this was tiring and unsettling for the children, especially as the parties lived 40 km apart on different sides of Sydney. However, by the time of the trial, interim consent orders provided for overnight time and ‘[e]ach of the parties [wanted] the children to spend regular, overnight, unsupervised time with the other parent’.21 They also agreed that this should involve the children spending every second weekend, half the school holidays and several other special days with the father. Their key point of disagreement was that the mother resisted the children spending Wednesday evenings on the alternate weeks with the father, once again on the basis that it was tiring and unsettling for them. The parties also disagreed about the children’s weekend activities (the father’s view was that the mother’s enrolment of the 17 Steven Strickland and Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’, (2014) 28 Australian Journal of Family Law 47. 18 Polites & Stathos [2013] FamCA 1002, [2] (Loughnan J). 19 To similar effect, see Mahoney & Barrow [2013] FCCA 1793 (Harman J). 20 Polites & Stathos [2013] FamCA 1002, [2] (Loughnan J). 21 ibid., [45].

318 AUStralian FAMILY LAW: the contemporary context

children in such activities near her home cut across his parenting time) and also regarding who would drive the children between homes (the father considered that this should be shared while the mother’s view was that the father should do it). Indeed, the discussion in the case suggests that while this was not considered to be a high-conflict case, in terms of their parenting approaches there was little that the parents agreed on. On these facts, Loughnan J held that the presumption of ESPR applied and had not been rebutted as not being in the children’s best interests. While the parties showed little willingness to communicate, their capacity to do so was not in doubt: The parties’ communication is poor, to the point of being childish at times and one or both of them cannot get past lingering resentment about some issues. However, the parties are apparently intelligent, loving and capable adults and I can see no reason to depart from the intimation in the legislation promoting equal shared parental responsibility. If they embarrass the children or otherwise fail in their joint obligations to make major parenting decisions then in the future they might need to explore the options of having major decisions made by only one of them or by a court.22

While neither of the parties sought equal time and the family consultant did not recommend it,23 Loughnan J then went on, in accordance with the legislative pathway (Chapter 8), to consider whether orders should be made for equal time, clearly considering himself bound to do so: ‘I must consider whether the children spending equal time with each of the parents would be in their best interests. It appears from the legislation that this consideration is not limited to the proposals before the court’.24 Although of the view that ‘there is nothing about the parents or the children that would suggest that equal time would not be in the children’s best interests’,25 he concluded that it would not be reasonably practicable, due to the locations of the parents’ homes (‘In my view it would be burdensome for the children and could adversely impact on their parenting if they were to regularly travel across Sydney to go to and from school’)26 as well as the lack of communication and goodwill between the parents (‘In my view they have little capacity to implement an arrangement for the children spending equal time between the households. The parties have little or no effective communication and somewhat different parenting styles. The regimes in the two households are quite different’).27 However, Loughnan J found that substantial and significant time would be in the best interests of the children and that it would be reasonably practicable, although also acknowledging that it would require some parental compromise: The parents are intelligent people and should be able to manage the scheduling of suitable time for necessary homework. As between extra-curricular activities and adequate time with the father, the latter must have priority. If something has to give

22 23 24 25 26 27

ibid., [79]. ibid., [86]. ibid., [86]. ibid., [87]. ibid., [89]. ibid., [91].

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way for homework, it might have to be some other activity rather than movement towards substantial and significant time with the father.28

Justice Loughnan thus proposed to make orders reflecting the father’s proposal, which he saw as representing ‘a move towards substantial and significant time’ and an arrangement that ‘is practical and otherwise in the best interests of the children’.29 On one view, these orders seemed appropriate given the individual qualities of the parents in this case and the absence of high conflict, family violence or other risk factors. However, the locations of their homes and their inability to agree or communicate did not resemble in important respects the profile of parents with workable shared arrangements that has consistently emerged in the research (Chapter 5). Substantial and significant time was logistically less disruptive than equal time for the children, but no more ‘reasonably practicable’ in terms of the parents’ unwillingness to communicate. The order for ESPR supports Patrick Parkinson’s observation that while ‘[o]rders for sole parental responsibility are also appropriate in situations of intractable conflict … [i]t proved difficult to translate that into legislation, not least because of the problem of providing a legislative definition of entrenched conflict’.30 No definition is currently provided in the legislation, and intractable parental conflict is not a specific factor in the best interests checklist (section 60CC), although it is relevant to the court’s assessment of several factors in the list. Indeed, Parkinson suggests that ‘[i]n any situation where the track record suggests that it will be very difficult indeed for the parents to agree on aspects of parental decision-making, it is likely to be better to make an order for sole parental responsibility’.31 A more typical case in terms of the FCoA’s caseload is Vargas & Clarke.32 Proceedings were initiated before the commencement of the 2012 amendments and the case was decided by Bell J in February 2014. In Vargas, the parents were in dispute regarding parental responsibility and parenting time in relation to their son, who was almost three years of age at the time of the trial. The proceedings were instituted by the father, who sought sole parental responsibility, that the child live with him, and that the mother (who he disputed was the child’s primary carer) have supervised time with the child at a contact centre. By the time of the trial, the father sought joint parental responsibility and an equal shared time (week about) arrangement. On the basis of considerable material put before the court, including a report of Dr P, a clinical psychologist and clinical neuropsychologist and the evidence of Dr F, a psychiatrist (both of which were clearly influential),33 Bell J ordered that the mother have sole parental responsibility for the child and the father have permanent supervised time at a contact centre of two hours per week (subject to availability) as well as mid-week telephone contact. Key factors in this case were the father’s family violence (which had resulted in a final family violence order in relation to his assaults on the mother, in addition to two other 28 ibid., [101]. 29 ibid., [105]. 30 Patrick Parkinson, ‘Violence, Abuse and the Limits of Shared Parental Responsibility’ (2013) 92 Family Matters 7, 15. 31 ibid. 32 Vargas & Clarke [2014] FamCA 109 (Bell J) (Vargas). 33 ibid., [4].

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such orders for assaults on other women);34 his harmful behaviour in relation to the child (involving an ‘obsessive quest to denigrate the respondent at every opportunity he possibly can’,35 including allegations to police and the state child welfare authority that the mother and her eight-year-old child from a previous relationship were abusing the child,36 as well as constant photographing of the child and medical visits, all of which was viewed by the family consultant as harmful to the child)37; his failure to comply with previous orders of the court (breaching the family violence order, failing to return the child after spending time with him, and failing to attend a parenting course and post-separation parenting program as recommended by experts and ordered by the court); and his inability to put the child’s needs before his own (including the behaviour already described and failing to pay child support);38 and the apparent escalation in his negative behaviour:39 I must say that in my 38 years of experience in this Court, I was staggered at the selfish, self-centred view of the applicant who would do anything to blacken the name of the respondent in relation to the child … In my view, the applicant has failed in any way to endeavour to encourage a relationship between the respondent and the child. He has not put the child’s welfare first; he considers his own position more important than that of the child. His obsessive, narcissistic and paranoid personality can in no way allow this child to develop in a proper manner. Generally his conduct is such that as Dr F has said the child can come to psychological harm. I also find he has failed to maintain the child notwithstanding he has the capacity to do so.40

In contrast, while the expert evidence suggested that the mother ‘has significant personality vulnerabilities herself ’41 arising independently of the father’s conduct, she presented no risk to the child’s welfare.42 On these facts, Bell J concluded that ESPR should not be ordered, although without indicating whether the presumption of ESPR was not applicable or rebutted: Generally I found the applicant’s conduct towards the child and his view of the respondent quite disturbing and I have no hesitation in saying that, as far as I am concerned, considering that the parties do not communicate whatsoever, that in fact there could be no question of joint parental responsibility.43

Given his conclusions regarding the damaging impact of the father’s conduct on the child, it was not surprising that Bell J did not go on to specifically consider making an order for shared time between the father and the child despite the father having asked for this (Goode:44 Chapter 8), and that no reference was made in the case by the parties or Bell J to the research debate regarding overnight stays for children under the age of four 34 35 36 37 38 39 40 41 42 43 44

ibid., [18]. ibid., [63]. ibid., [50]–[59]. ibid., [59]. ibid., [67]–[71]. ibid., [61]. ibid., [76] and [86]. ibid., [44]. ibid., [77]. ibid., [82]. Goode & Goode [2006] FamCA 1346, [65] (Bryant CJ, Finn and Boland JJ).

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(Chapter  6). Nevertheless, Bell J still viewed himself as being required to consider whether any parenting time should be ordered.45 Making clear that he was influenced by ‘evidence of the Contact Centre wherein the child does enjoy his time with the applicant and grudgingly the evidence by the respondent’,46 Bell J concluded that there should be ongoing supervised contact. While Vargas47 offers support for the suggestion that greater caution is likely to be exercised in relation to ordering shared time where risk factors are present it is also evident, as the AIFS observed in 2009,48 that a wide variety of arrangements is ordered depending on the circumstances and the exercise of judicial discretion, and that orders for shared time continue to be made in case involving family violence and high conflict, despite judicial acknowledgement that these are contra-indicators of workable shared time (Chapter 5). For example, in Rodway & Rodway,49 Altobelli FM (as he then was) made orders for ESPR of two children (‘Y’, a daughter aged 16 from the mother’s previous relationship and ‘X’, the parties’ daughter aged seven) that the children live with the mother, and that the younger child spend substantial and significant time (four nights per fortnight, half the school holidays and other special days) with the father. This was consistent with interim orders made a year earlier. The father sought orders for equal time in relation to the younger child, to be phased in over time, while the mother sought that the existing arrangements be continued. The father initially sought orders in relation to the older child, who did not want any interaction with him. However, by the time of his closing submission ‘he was seeking no orders in relation to [Y]. This was a difficult decision for him to make but, in all the circumstances, it was the appropriate decision to make’.50 A significant aspect of the case was the mother’s allegation that the father had been violent during their marriage, which had ended in late 2010. For example, Altobelli J observed that: Paragraph 146 of the mother’s affidavit of 11 July 2011 is a powerful example of the mother’s evidence in this regard. She deposed: During the marriage Mr Rodway often became angry with me in the presence and hearing of the children and I would often burst into tears, start to shake and go down on my knees while he asked me for an apology. I apologised to Mr Rodway often for things that I had not even done, just to stop him. There was no one I could call or talk to about Mr Rodway’s behaviour towards me and I often went to work the next morning, after taking the children to school, miserable and feeling empty and frozen like a zombie. I felt tightness in my chest, nausea and dizziness all day and found it difficult to concentrate on my work. While I was at work, I would often worry about what would happen that night when Mr Rodway came home and I had to cancel appointments and meetings and pretend that I was sick when I became distressed about my situation with Mr Rodway. This led to a decline in my work and income.51 45 46 47 48 49 50 51

Vargas [2014] FamCA 109, [83]. ibid., [83]. To similar effect, see Ferrer & Oldham [2013] FCCA 1872 (Kemp J). Kaspiew et al., above n 1, p 354. Rodway & Rodway [2012] FMCAfam 903 (Altobelli FM). ibid., [3]. ibid., [23].

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While the father admitted he had been violent, he minimised the impact of his behaviour.52 The mother’s evidence was corroborated by the older child and communicated in the family report: [Y] has memories of her parents arguing and of her father being aggressive towards her—screaming, hitting, calling her names, putting her down and scaring her. At paragraph 36 of the Family Report the Family Consultant records [Y] stating that she does not want to communicate or spend time with her step-father— As she perceives him to have been emotionally abusive towards her.53

While the proceedings were initiated before the commencement of the 2012 amendments, Altobelli FM, deciding the case in September 2012, applied the section 4AB definition of family violence (but not section 60CC(2A)), finding that family violence had occurred and was a significant factor: These findings about family violence are significant and cannot be ignored in the context of deciding what is in the best interests of [X] and what parenting arrangement is reasonably practicable for her. There is no risk to [X] of violence perpetrated by her father, but the family violence does provide a context to understand the conflict between [X]’s parents, their inability to cooperate and trust each other, and [their] enormous … communication problems.54

In these circumstances of past family violence, ongoing inability to communicate and absence of cooperation and trust, Altobelli FM took the view that equal time would not be in the best interests of the child or reasonably practicable:55 The evidence is abundant in terms of the parents’ current, and therefore likely future, incapacity to implement an arrangement for equal time. Likewise the evidence indicates that they do not have the capacity to communicate with each other and to resolve the difficulties that might arise in implementing equal time. The evidence is replete with examples, and even concessions by the [parents] themselves, about the level of conflict that exists between them, the lack of trust and their inability to communicate. In terms of future capacity, the father is certainly optimistic in this regard, but his optimism has no reasonable, objective basis. The past is the best indicator of the future. That is not only a general proposition, but a specific proposition on the facts of this case. The parents could not agree about something as benign as a holiday in Bali, even though they had been there on a previous holiday a few years earlier.56

Despite this, Altobelli FM made orders for ESPR (apparently on the basis that this was what had been requested by the parties) and for substantial and significant time, although acknowledging that the same factors suggested that the latter would not necessarily be workable: The mother’s proposal is for substantial and significant time. Whilst many of the concerns expressed above could just as equally apply to substantial and significant 52 53 54 55 56

ibid., [20]. ibid., [34]–[35]. ibid., [39]. ibid., [69]. ibid., [70].

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time, there is a less chance, in the court’s opinion, of the sorts of difficulties arising because of the fundamentally different nature of substantial and significant time, and equal time. In the circumstances, as the mother appears to at least implicitly concede that substantial and significant time is in the best interests of [X], and is reasonably practicable, that is the decision that the court will make.57

The ‘fundamental difference’ between equal and substantial and significant time—and why less difficulty might arise from orders for the latter than the former—were not explained by Altobelli FM.58 However, the fact that the mother was getting what she had asked for, that the arrangement had been in place for a year, and that there was some indication of an increase in the father’s appreciation of the child’s needs may have been relevant. That the family violence described had occurred before separation may also have been relevant: while a history of family violence remains relevant to assessing what orders will be in the child’s best interests, Altobelli FM’s decision is consistent with the future-focused approach commonly evident in decision making—an approach that arguably pays insufficient regard to the ongoing impact of past violence on those subjected to it.59 In Rodway, the range of contra-indicators of workable shared time, and that the child was ‘very much aware of the parental conflict’,60 was troubling in circumstances where findings were made under section 4AB and the older child did not want to see her step-father. There is also evidence of substantial and significant time outcomes being ordered in cases not involving family violence, but in the absence of support for such orders by the primary carer or evidence that the orders will be workable. For example in Hammond  &  Chapman,61 the parties were in dispute regarding their almost four-year-old child. The mother was the child’s primary carer, and at the time of the trial a court-ordered interim arrangement of two days and one overnight stay per fortnight had been in place for a year. The father applied for orders for more parenting time, beginning with four nights a fortnight and increasing to equal time when the child was six years old. The mother sought orders that the current parenting arrangements continue until the child was four-and-a-half years old, then increasing to four nights per fortnight with the father, and increasing again to five nights per fortnight when she was five-and-a-half years old. A family report funded by the parties recommended that the child live with the mother and spend two nights and one day per fortnight with the father, which might be increased to five nights per fortnight when the child was five years old depending on events, particularly whether the current inability to communicate and cooperate had improved, which the family report writer doubted would occur.62 In Hammond, there was no evidence of family violence or child abuse, the child had ‘a close and loving’63 relationship with both parents and her mother’s two children from a previous relationship, and both parents facilitated the child’s relationship with the other 57 ibid., [76]. 58 To similar effect see Laracy & Laracy [2013] FamCA 61(Watts J). Cf Johnetta & Patsiokis [2012] FamCA 1145 (Stevenson J). 59 Parkinson, above n 30, p 15. 60 Rodway & Rodway [2012] FMCAfam 903, [40]. 61 Hammond & Chapman [2013] FCCA 851 (Howard J). 62 ibid., [33]. 63 ibid., [21].

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parent. The main issue was whether long-term orders should be made, given the child’s young age and the family report writer’s concerns regarding the parents’ inability to communicate:64 My view is that prematurely moving to a shared time arrangement would be unsuited to her development and practically unworkable, due to the parents’ contentious communication.65

While the father claimed that communication had improved since the report was written, taping of changeovers by each of the parents on separate occasions without the knowledge of the other indicted that, ‘When the father knew that taping was occurring he conducted himself in an appropriate manner. When the father was not aware that the taping was occurring he ignored the mother and was non-communicative’,66 leading Howard J to conclude that the mother’s evidence that generally the father was non-communicative during changeovers was to be preferred. In these circumstances, Howard J concluded that it would not be in the child’s best interests to order arrangements progressing to equal time. He further held that, independent of this, the child’s young age and the absence of expert evidence made it impossible to know whether such orders would be in the child’s best interests.67 However, he also expressed the view that equal time would have been reasonably practicable, referring to the point that the parties both lived in Brisbane68 but not the range of factors set out in section 65DAA(5). Justice Howard also decided that he would order ESPR (on the basis that the presumption had not been rebutted as contrary to the child’s best interests)69 and substantial and significant time. In deciding to order shared time, Howard J expressed the view that the family report writer’s recommendations70 should be adopted, and that as a result he would order that the child spend four nights per fortnight with the father once she was four years old, increasing to five nights per fortnight once she was five years old. Yet the report writer had (as noted earlier) in fact expressed doubt regarding whether the parties’ inability to communicate or cooperate would be resolved and his recommendation had made clear that whether time should be increased would ‘depend upon events’: It is my view that given her age, Z should continue to have time with her father during each week and that she would benefit from an extra night per fortnight currently. This could be increased each year by one night per fortnight such that—by five years of age—she could have five nights per fortnight with her father. I think the potential of Z having a shared time arrangement between her parents at that time would depend upon events, and the capacity of the parents at that time.71

While courts understandably seek to reduce the likelihood of further proceedings (Chapter  8), there was little in this case to support the idea that the long-term orders made 64 65 66 67 68 69 70 71

ibid., [38]. ibid., [37]. ibid., [44]. ibid., [49]. ibid., [53]. ibid., [52]. ibid., [51]. ibid., [33] (citing [64] of the family report).

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were in the child’s best interests. Rather, Hammond suggests the use of the presumption of ESPR and orders for substantial and significant time as a compromise position, to give the minority time parent something in cases where the other parent will remain the primary carer. In summary, our analysis of recent cases in which shared time was sought and/or ordered suggests that the evaluation finding holds true, namely that a discretionary approach is evident, with a variety of arrangements being ordered depending on the circumstances.72 It also suggests the danger in viewing recent FCoA data indicating an apparent decline in adjudicated shared time, particularly equal time, cases as conveying the whole story, as it is evident that substantial and significant time is being ordered in circumstances that sometimes involve risk factors for children. The ages of children emerge as a more consistent factor precluding court orders for shared time: while most of the cases involve younger children, Rodway illustrates that where children reach adolescence court orders are unlikely to be made.73

9.3 Religion While ‘[o]rdinarily the religious beliefs of a parent and proposed religious observance by their children are not the subject of detailed evidence’,74 parenting disputes in which religion does arise as an issue continue to pose particular challenges for family law courts. These challenges are likely to have increased following 1996 and 2006 amendments encouraging ongoing parent–child relationships, as implicit in this approach is parental capacity to compromise and faith-based practices is an area where this may be hard to do. When parents’ religious practices and beliefs diverge, both ESPR (which includes decisions regarding the child’s religion) and shared parenting time are likely to be difficult to manage. While ‘religion’ is not specifically referred to in the FLA Part VII objects and principles (section 60B) or in the section 60CC ‘best interests’ checklist, there are now several checklist factors that are relevant when religion is at issue. In any case, since the early days of the FLA, religion has been viewed as relevant to the court’s broad inquiry regarding the child’s best interests.75 The court must therefore balance the impact on the child of exposure to the tenets and practices of a particular faith against the wide range of other considerations to be considered when making orders that are in the child’s best interests. In doing so, courts have struggled to balance the rights of both parents and children to religious freedom. Freedom of religion (including freedom to have no religion)76 is one of the few human rights explicitly guaranteed in the Australian Constitution (section 116), reflecting the high value placed on religious autonomy by Western liberal states. However, a liberal argument can also be made that, given the indeterminacy of the best interests of the child principle, courts should make decisions that will protect ‘the child’s opportunity and 72 73 74 75 76

Kaspiew et al., above n 1, p 354. Rodway &Rodway [2012] FMCAfam 903; Milton & Milton [2012] FamCA 202 (Stevenson J). H & H [2003] FMCAfam 31, [44] (Ryan FM). In the Marriage of Paisio (No. 2) (1978) 5 Fam LR 281. Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 123 (Latham CJ).

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ability to make choices’, which would count ‘against a parent who intends to give the child a very strict religious upbringing which, for all practical purposes, pre-empts the child’s later choice of religion’.77 Given the potential for tension between a parent’s and a child’s right to religious freedom, including a child’s increasing right as they mature to make their own choices, it is not surprising that family law courts have repeatedly stated that they will not prefer one religion over another or a religious upbringing over a non-religious one.78 Consistent with this, courts ‘refrain from making orders that define the religious upbringing of a child and only intervene when it is necessary to do so in order to promote the best interests of the child’.79 The 1978 case of Paisio80 is an early example of these points. In that case, the Full Court said: [E]ven without calling to aid s 116 [of the Australian Constitution] it is clear that on general principles the courts have recognized that it is no part of the judicial function to rule that one form of religion is to be preferred to another. There may be many paths to the top of the mountain. Some would say there is only one, some would say there is no path. Some would say there is no mountain. It would be presumptuous, vain and temerarious for a judge to make a finding of fact on such an issue. It is not for the court to say which religion gives the best benefits.81

Yet despite this, the Full Court dismissed the appeal by the wife, who was a Jehovah’s Witness, against orders awarding the husband custody (that is, daily care: Chapter 6) of the parties’ three children (aged about 16, 15 and eight) and allowing her access (that is, parenting time: Chapter 6). This involved changing the living arrangements of the youngest child, who had remained with her mother since separation while the older children had, consistent with their wishes, gone to live with the husband. The Court did not find fault with the approach of Cook J at first instance, who had been concerned that the strictness and separateness from society of the wife’s faith might be detrimental to the younger child, and especially to that child’s relationship with her siblings: Ultimately it was the relationship between the child and her siblings which seemed most significant to his Honour. He saw great benefits to her in maintaining this relationship and had some doubts that she might take ‘a strong action directed by her religious beliefs against a full contact with and participation in the life of the brother and sister and her father.82 77 Jon Elster, Solomonic Judgments: Studies in the Limitations of Rationality, Cambridge University Press, Cambridge, 1989, pp 137–8. 78 For example, In the Marriage of Paisio (No 2) (1978) 5 Fam LR 281; In the Marriage of Plows (No 2) (1979) 5 Fam LR 590; In the Marriage of E A and E M Grimshaw; J A and H L Arkcoll (First Interveners); G Stevens (Second Intervener) (1981) 8 Fam LR 346; In the Marriage of N (No 2) (1981) 7 Fam LR 889, In the Marriage of Sheridan [1994] FamCA 126; Between: William Malcolm Firth Respondent/Husband and Marilyn Kniest Firth Respondent/ Wife and Herman George Boyer and Annie Kniest Boyer Appellant/Interveners Appeal [1988] FamCA 10 (Simpson, Joske and McCall JJ) (Firth). More recently, see H & H [2003] FMCAfam 31(Ryan FM) and P and L [2006] FamCA 947 (Bryant CJ, Warnick and Boland JJ). 79 H & H [2003] FMCAfam 31, [44] (Ryan FM). 80 In the Marriage of Paisio (No 2) (1978) 5 Fam LR 281. 81 ibid., 283 (Evatt CJ, Asche and Marshall SJJ). 82 ibid., 286.

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The Full Court’s decision thus conveyed that while the Court would not prefer one religion over another, it would nevertheless be prepared in appropriate circumstances to conclude that ‘the doctrines of a particular religion may be so detrimental to children as to necessitate that children should not be in the custody of the parents holding such doctrines’.83 It also illustrated the fundamental point that in parenting cases it is usually a constellation of factors, rather than one single factor, that explains the outcome. In 1988 in Firth,84 a case concerning the Exclusive Brethren, a separatist Evangelical Christian sect, the Full Court similarly held that while one religion would not be preferred over another, religious beliefs and practices could be examined in order to determine the child’s best interests, which must prevail: With this general proposition that it is not for a Court to prefer one religion to another we do not disagree. However, in determining questions of custody and access, depending upon, as they do, a determination of what is in the best interests of the child, or, what future proposals put forward by the parties to a suit will best promote the welfare of the child, it is permissible for a Court to examine the tenets and practices of a particular faith for the purpose of deciding these questions. It is in our view a proper exercise of the discretion vested in a Judge hearing a custody case to take these factors into account and weigh them in the balance together with all other relevant factors in the case. If, when following this approach a court decides that it is detrimental to the welfare of the children for them to be brought up adhering to such practices, this does not constitute a breach of Section 116 of the Constitution, thereby rendering the orders made in consequence invalid.85

In Firth, the wife, who had left the Exclusive Brethren, sought orders for custody of two children of the marriage, aged 10 and 11, who remained within the Exclusive Brethren. The Full Court declined to interfere with Cook J’s first instance orders granting the wife sole guardianship (in essence, sole parental responsibility: Chapter 6) and sole custody of the children, suspending access for at least 12 months between the children and the husband (who had been but was not currently a member of the Exclusive Brethren) and their maternal grandparents (who remained members of the Exclusive Brethren), and making an injunction that the husband and the maternal grandparents not approach the children for the same period. These orders, which were challenged on appeal by the husband and the maternal grandparents, were made even though the children had been brought up as members of the Exclusive Brethren, conveyed ‘firm views’86 that they wished to remain with their grandparents, and had had little contact with the wife for almost five years after both she and the husband left the Exclusive Brethren. Over that period, the children had been in the care of the maternal grandparents and the Exclusive Brethren’s position is that interaction should not occur between members and those who have been ‘withdrawn from’ (that is, excluded from the Exclusive Brethren), which included the mother. In dismissing the appeal, the Full Court emphasised that Cook J had carefully taken into account matters relevant to the children’s best interests, including the children’s settled living arrangements 83 84 85 86

ibid., 284. Firth [1988] FamCA 10 (Simpson, Joske and McCall JJ). ibid., [35]. ibid., [40] (quoting the Appeal Book).

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and wishes (although with ‘some doubts as to how the wishes or the attitudes of the children had been acquired by them’), as well as ‘the general restricted lifestyle and separateness of the Brethren from the normally accepted community activities’, the husband’s ‘malice and desire to hurt the wife rather than to advance in any real or effective way the welfare of the children’, and the wife’s attempts to maintain contact with the children in the face of her parents’ continuing opposition.87 As a result, the Full Court concluded that it was ‘not possible to say that [Cook J’s] discretion miscarried because he failed to give appropriate weight to all other relevant considerations’.88 As discussed in Chapter 6 and mentioned earlier, the 1996 amendments encouraged ongoing contact between separated parents and their children, while the 2006 amendments introduced the presumption of ESPR and encourage shared time outcomes. The compromises required so that parent–child relationships can be maintained present particular issues in the context of separatist or fundamentalist religions. This point is illustrated by cases involving the Exclusive Brethren, which, as Firth indicates, presented difficulty even before amendments encouraging shared parenting because of the Exclusive Brethren belief that ‘they must separate from those who the Brethren believe are impure in faith and morals’,89 extending to a cessation of contact with members (including parents) who have been excluded: [w]hen a person has been ‘withdrawn from’ and ‘put out’ that person is to be treated as no longer Brethren and consequently the … restrictions on eating, socialisation and general association apply to that person as to any non-Brethren.90

The belief that when a parent leaves the Exclusive Brethren they will be viewed as a person with whom their children should no longer associate is in direct conflict with the operation of FLA parenting provisions since 1996. It is therefore not surprising that while cases involving parties who are or were members of the Exclusive Brethren featured in the Australian family law reports pre-2006, they have continued to have strong presence in the case law on religion in parenting disputes since then.91 A further relevant factor, Louise Thornthwaite contends, is the deliberate strategy of factual obstruction, and relentless litigation adopted by the Exclusive Brethren to defeat court orders maintaining relationships with ex-Brethren parents, in response to early decisions of the court, such as Firth.92 87 ibid., [26]–[32]. 88 ibid., [33]. 89 Elspeth & Peter [2006] FamCA 1385, [276] (Benjamin J’s summary of the evidence of an ‘unofficial elder of the Brethren’). 90 ibid. 91 K v K (1979) 5 Fam LR 179 (Toose J); In the Marriage of E A and E M Grimshaw; J A and H L Arkcoll (First Interveners); G Stevens (Second Intervener) (1981) 8 Fam LR 346; Firth [1988] FamCA 10 (Simpson, Joske and McCall JJ); In the Marriage of PA and JA Litchfield (1987) 11 Fam LR 435 (Mullane J); In the Marriage Of: Warren John Mcalpin Respondent/Husband And: Rachel Mary Mcalpin Appellant/Wife [1990] FamCA (Nicholson, Maxwell and Baker JJ); H & H (1998) FamCA 7 (referred to in H & H [2003] FMCAfam 31 (Ryan FM, as she then was)); J & G [2000] FMCAfam 8 (Bryant CFM); and the long litigation beginning with Elspeth and Peter [2006] FamCA 1385 (Benjamin J) and ending with Peter & Elspeth [2009] FamCA  551(Brown  J) (discussed in this section). 92 Louise Thornthwaite, ‘Separatist Religious Sects, the Family Law Act and Shared Parenting: An Examination of Cases Involving the Exclusive Brethren’ (2011) 25 Australian Journal of Family Law 54.

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These themes were evident in the case of Elspeth and Peter,93 involving a father’s application in December 2006 (shortly after the 2006 amendments came into effect) for parenting orders in relation to three children of the marriage aged 8, 13 and 16. The father sought orders for ESPR and that the children live with him. The children and the mother remained within the Exclusive Brethren, while the father had left when he and the mother separated. At first instance the mother argued that it was ‘unrealistic to expect the children to have a meaningful relationship with the father as the children were brought up as members of the Exclusive Brethren and continue in that practice subsequent to separation’.94 The children’s views were that they did not want to see their father. Benjamin J, however, considered that ‘the evidence as it presently stands demonstrates that there is a benefit to the children in spending time with the father provided such time is meaningful’.95 He also considered that the children’s views ‘are, if not wholly, significantly influenced by the expressions of their family and other members of the Brethren’.96 After an exhaustive analysis of the section 60CC factors, Benjamin J ordered that the parents have ESPR (‘I am not satisfied that it would be in the best interests of the children for the parents not to have equal shared parental responsibility’)97 and that the children live with their mother and spend regular time with their father (concluding that while equal time or substantial and significant time would not be reasonably practicable or in the children’s best interests, it would be ‘in the best interests of these three children to spend time with the father on a regular basis’).98 This contact did not occur and there were subsequently contravention proceedings, resulting in suspended sentences of imprisonment for the mother and for two other family members who it was found had aided or abetted the contravention by the mother. However, an appeal by the mother in relation to penalty was successful, and an appeal by the other family members was also successful, the Full Court finding that there was no evidence that they had intentionally aided or abetted the contravention.99 During the period of years in which this litigation occurred, the children’s views opposing any contact with their father became more entrenched and the mother was diagnosed with a terminal illness, with a life expectancy at the time of diagnosis of three to six months. In 2009, Brown J made final orders that the mother have sole parental responsibility in relation to the two younger children (the older child by then being 18 years of age):100 The lack of any parental alliance; the inability to communicate; the gulf between the parents’ aspirations for their children; the security of the children’s lives with their mother and siblings; the father’s continuing criticism of the church and the children’s  93  94  95  96  97  98  99 100

Elspeth and Peter [2006] FamCA 1385 (Benjamin J). ibid., [301]. ibid., [314]. ibid., [279]. ibid., [386]. ibid., [392]. Elspeth and Peter & Ors [2007] FamCA 655 (Faulks DCJ, Kay and Penny JJ). Peter & Elspeth [2009] FamCA 551 (Brown J).

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lives within it; and the fragility of the mother’s health; all mitigate against any other outcome. I am satisfied the presumption of equal shared parental responsibility is rebutted, being contrary to the children’s best interests.101

Brown J also ordered that the father have no contact with the children, on the basis that there was no meaningful relationship between the father and children remaining: Nor am I satisfied that there would be any benefit to J or C in making orders which require them to spend time with their father at this time, or to communicate with him. I take into account the reality that this will mean they have no relationship with him, at least in the foreseeable future. That may come at an emotional cost but [the family report writer’s] evidence satisfies me that the cost of forcing contact on them would be much higher, and would be unsustainable. I cannot find any positive benefit to the children in making orders which require them to spend time with their father; nor any prospect of them having a meaningful relationship with him in the foreseeable future.102

It is difficult to know the extent to which the mother’s terminal illness influenced the final orders. The Exclusive Brethren cases represent an extreme end of the spectrum of disputes concerning religion. A more everyday context in which cases concerning religion arise is that of education and schooling choices. Cohan & Cohan,103 for example, involved an application by a father for parenting orders, including that the parties’ four-year-old daughter attend an orthodox Jewish school. The father observed a strong, orthodox Judaism while the mother observed liberal Judaism in her household. The FCoA was required to decide whether it was in the best interests of the child to be sent to an orthodox Jewish school immediately, including a period in pre-school (as the father proposed and as had been agreed prior to the parties’ separation) or to a more reformist Jewish school at an older age (as the mother proposed). Justice Le Poer Trench accepted the mother’s proposal, on the basis that this would allow the child to be open to both parents’ views and ‘a broader exposure to the general Australian community’, an approach supported by the mother’s submissions.104 However, the father had also conceded that some tension might arise if their daughter attended the Orthodox school while living in her mother’s liberal household,105 and this appeared to be a further relevant factor influencing Le Poer Trench J’s orders that the child live with the mother. Due to the high level of conflict between the parties, Le Poer Trench J made time-limited (three-year) orders that the mother have sole parental responsibility, that the child spend gradually increasing time with the father over the same period, and that the parents be required to agree on any extracurricular activities for the child. Concern regarding the risk that the child might be ostracised as a result of religious schooling arose as a stronger theme in H & H.106 In that case the mother was a Muslim, 101 102 103 104 105 106

ibid., [218]. ibid., [221]. Cohan & Cohan [2007] FamCA 1059. ibid., [164]. ibid., [81]. H & H [2003] FMCAfam 31.

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born in Lebanon, and the father was an Australian-born Catholic Maronite of Lebanese origin. Both parties wanted to expose the child to their respective religions. Though neither party argued their religion should be preferred, the father sought orders that the child be educated in a Catholic Maronite school while the mother proposed that he attend a non-denominational state school. Expert evidence was led about the Australian Lebanese community, the expert reporting that it was expected by both Muslim and Catholic Maronite religions that children would be raised in the religious faith of their father and that both communities would stigmatise a child who followed the religious faith of their mother.107 Federal Megistrate Ryan ordered that the child attend a state school agreed upon by the parents, holding that the child had already been brought up in an environment that did not strictly adhere to either parent’s religion, and that the child: ought not to be exposed to a school community that will mock or reject him because he does not practice his father’s religion. Nor, in my opinion, should he be exposed to a religious education inconsistent with the values that he will be exposed to day by day.108

Federal Magistrate Ryan further found that ‘[b]y carefully selecting an appropriate nongovernment school J need not be exposed to the narrow application of patriarchy from a peer group’.109 In the small number of cases in which religion is raised as an issue by the parties, religion tends to be perceived as a ‘negative’ rather than a ‘positive’ for children. This is to be expected, given that family law courts only intervene when religion is perceived to be harmful to children. Yet our discussion in this section suggests that broader value judgments are also at play, particularly regarding ‘the desirability of the children being brought up in a more libertarian lifestyle such as that enjoyed by the majority of children in Australia today’.110 This approach is consistent with a secular, liberal understanding of children’s best interests, but is unlikely to resonate for parties in whose lives religion is central.

9.4 Aboriginal and Torres Strait Islander children In recent years, considerable scrutiny has been applied to the way that the needs of Aboriginal and Torres Strait Islander families are dealt with in the family law system, including in parenting disputes. In 2006, the Australian Parliament introduced provisions into Part VII intended to better accommodate recognition of family practices in Aboriginal and Torres Strait Islander communities (Chapter 3) and to encourage an increased focus on the need to maintain links with culture. More broadly, in 2010, the Family Law Council made a series of recommendations intended to support more effective responses to Aboriginal and

107 108 109 110

ibid., [42] ibid., [50]. ibid., [52]. Firth [1988] FamCA 10, [50] (Simpson, Joske and McCall JJ).

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Torres Strait Islander families in the family law system.111 This report highlighted the need for strategies originally instigated by the FCoA, including the employment of Indigenous family consultants and liaison staff by the FCoA, to be applied throughout the family system including in courts and FRCs. The report also highlighted a number of impediments to the engagement of Aboriginal and Torres Strait Islander families with the family law system. These include an entrenched and longstanding reluctance among these communities to engage with government agencies and courts because of the historical and contemporary impact of practices associated with colonisation, which still see Aboriginal and Torres Strait Islander people overrepresented in the child protection and criminal justice systems.112 When parenting disputes involving children with Aboriginal and Torres Strait Islander backgrounds arise, there is a strong likelihood that a ‘lack of fit’ will arise between the two-parent model of ‘family’ underpinning FLA Part VII and the child’s current and/or proposed parenting arrangements. As noted in Chapter 4, it is important to understand the diversity among Aboriginal and Torres Strait Islander communities, which are spread throughout urban, regional and remote areas in Australia.113 There is a diversity of cultural, family and linguistic practices among these communities. Family practices in particular vary between Aboriginal and Torres Strait Islander communities and Western family norms, with a greater emphasis among Aboriginal and Torres Strait Islander families on the role played by extended family members and communities in raising children. This point is illustrated, for example, by analysis of the circumstances of Aboriginal children in the Longitudinal Study of Australian Children (LSAC) samples, which highlights that they are significantly more likely to be living in single parent families in households that include extended family members than non-Indigenous LSAC children.114 Indigenous children in regional and remote areas of Australia are underrepresented in this sample, meaning that on average these differences are likely to be even greater if Aboriginal families in these areas were considered. From a family law perspective, the incidence of children having Indigenous and non-Indigenous parents is also significant, with 25 per cent of Indigenous children in the LSAC samples having an Indigenous mother and a non-Indigenous father and 20 per  cent having a non-Indigenous mother and an Indigenous father.115 A further specific context in which Torres Strait Islander practices reveal the poor fit between Western concepts of family and supporting legal frameworks and some Indigenous 111 Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients: A Report to the Attorney-General prepared by the Family Law Council, Attorney-General’s Department, Canberra, 2012. See also Family Law Council, ‘Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Family Law Court, ‘Indigenous Families and the Family Law Courts’, Attorney-General’s Department, Canberra, 2014, available at ; Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future of Families Experiencing Separation: Report of the Family Law Pathways Advisory Group (Pathways Report) Commonwealth of Australia, Canberra, 2001. 112 Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, above n 111 [3.1]. 113 The Family Law Council report contains a useful overview: Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, ibid. [1.2]. 114 Jennifer Baxter, ‘The Family Circumstances and Wellbeing of Indigenous and Non-Indigenous Children’ in Australian Institute of Family Studies (ed.), The Longitudinal Study of Australian Children: Annual Statistical Report, 2012 (2013), pp 149–71, Table 10.2. 115 ibid., p 151.

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practices is ‘customary adoption’.116 A traditional practice among Torres Strait Islander families is that of ‘kupai omasker’, under which children are given to extended family or community members to be raised in those families on the basis that ‘[c]hildren are never lost to the family of origin, as they have usually been placed with relatives somewhere in the family network’.117 This practice of adoption raises legal and practical problems for the receiving parents, as these adoptions are not recognised under Queensland adoption law (being the state law of particular relevance to Torres Strait Islander people). The child’s birth certificate recognises the child’s biological parents rather than the parents raising them. This means that, in practice, receiving parents do not have the legal recognition that would support their parenting role in areas such as health and education. For many years, the FCoA made orders for parental responsibility in favour of receiving parents and this still happens though to a more limited extent. The issue is currently the subject of consideration by the Queensland state government.118 In recent years, significant attention has been paid to the importance of maintaining and strengthening (or, in the case of peoples for whom these links have been lost, recovering) links to family, community, culture and country for the spiritual and social well-being of Aboriginal and Torres Strait Islander peoples.119 The notion of kinship, which may vary across Aboriginal and Torres Strait Islander communities but appears key to all, is highlighted in the following: Kinship systems define where a person fits into the Aboriginal and Torres Strait Islander community, binding them together in relationships of sharing a mutual obligation. Kinship defines roles and responsibilities for raising and educating children, and structural systems of moral and financial support with the community. People living in a traditional setting understand things like the ‘right skin’ and the relationships similar to this, but people living in less ‘traditional settings’ may not know this information. The kinship system is a complex system and often it is the Elders or grandparents within the family who hold this knowledge in its entirety.120

The connection between kinship and culture is intrinsic among Aboriginal and Torres Strait Islander peoples, with immersion within the kinship community being essential to the transmission of culture. Steve Larkins writes that Indigenous Australians: [L]earn and experience our culture and spirituality through our families—whether through knowledge, stories and songs from parents, grandparents, elders or uncles 116 See discussion in Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, above n 111, [5.10]; also Deanne Drummond, ‘Kupai Omasker: Incorporating Traditional Adoption Practices into Australia’s Family Law System’, paper delivered at 6th World Congress on Family Law and Children’s Rights, Sydney, 17 March 2013. 117 Paul Ban, ‘The Rights of Torres Strait Islander Children to Be Raised within the Customs and Traditions of Their Society’, Submission No 46 to Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, Parliament of Queensland, 7 June 2008. 118 See discussion in Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, above n 111, [5.10]. 119 See, e.g., discussion in Family Law Council, ‘Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze’ above n 111, p 20. 120 Secretariat of National Aboriginal and Islander Child Care (SNAICC) Inc, Working and Walking Together: Supporting Family Relationship Services to Work with Aboriginal and Torres Strait Islander Families and Organisations, SNAICC, Melbourne 2010, p 21.

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and aunts; or through the everyday experiences of shared values, meaning, language, custom behaviour and ceremonies.121

When making parenting orders the courts must consider the importance of both culture and kinship to the best interests of children of Aboriginal and Torres Strait Islander background, recognising the unique ways in which cultural knowledge and practices are transmitted through the kinship community.

9.4.1 Cultural recognition and law Alongside the recognition of cultural rights for children in the UN Convention on the Rights of the Child (CRC) (Chapter 6), the UN Declaration on the Rights of Indigenous Peoples122 enunciates the cultural, religious, spiritual and linguistic rights of Indigenous peoples (Articles 11–13) among a range of other rights, including social, political and economic rights. Consistent with this, recognition of Aboriginal and Torres Strait Islander culture and kinship practices was strengthened considerably in the 2006 amendments to the FLA, which introduced a range of provisions relating to the recognition of culture and kinship practices. These included sections 60B(2)(e), 60B(3) and 60CC(3)(h), which recognise the right of Aboriginal and Torres Strait Islander children to maintain connections with their cultures and other who share that culture. Section 60CC(6) provides further explanation of this right, specifying it entails the right: • to maintain a connection with that culture; and • to have the support and encouragement necessary to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views and to develop an appreciation of that culture. A further provision (section 61F) requires courts to consider kinship obligations and child rearing practices relevant to the particular child’s Aboriginal or Torres Strait Islander cultural context when identifying people who have or may exercise parental responsibility for the child. The Family Law Council’s analysis of the impact of these provisions indicated that fuller and better informed considerations of Aboriginal and Torres Strait Islander cultural and kinship practices were evident after these changes, but concerns remained about the way matters were litigated, particularly in relation to the ways evidence about culture and kinship were brought before the court.123 In contrast, Keryn Ruska and Zoe Rathus have offered a less optimistic analysis, noting that the context in which the new provisions were enacted, namely the philosophy of shared 121 Steve Larkins, ‘Strengthening Culture, Strengthening Identity: Keys to Healing for Aboriginal and Torres Strait Islander Children and Young People and Securing Their Social and Emotional Well-Being’ (2010) 17 Family Relationship Quarterly 10. 122 The declaration was adopted by the United Nations General Assembly in September 2007 and Australia adopted it on 3 April 2009. 123 Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, above n 111, 70.

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parenting, has undermined the extent to which courts have recognised wider kinship-based child-rearing practices. They argue that a tendency for biological parents to be favoured over wider kin, particularly in cases where all the parties are Indigenous, reflects the broader context for the 2006 reforms and means that ‘the law still struggles to deal with Indigenous concepts of kinship and the multitude of child-rearing practices observed by Aboriginal and Torres Strait Islander peoples’.124 In the context of court decisions concerning Aboriginal and Torres Strait Islander families, complex issues regularly arise. Issues include the extent to which culture should shape parenting arrangements, particularly in cases where countervailing concerns about family violence and child abuse are relevant. The interaction between the new legislative provisions prioritising protection from harm (for example, section 60CC(2A)) and those supporting connection with culture and community has yet to unfold. The cases also regularly involve a contest between biological parents and extended family members, such as grandparents or aunts, often in situations where the quality of care by a parent may be compromised by substance addiction or other problems. In all of these situations, the way courts approach the question of culture is influenced by the way culture is dealt with at an evidentiary level and the extent to which this evidence supports a well-informed consideration of culture. These points are illustrated in the following discussion of the law and a selection of cases. Chapter 4 addresses the issue of extended kinship and the application of section 61F, including its failure, to date, to affect the court’s interpretation of ‘parent’ for the purposes of the FLA.

9.4.2 Interpretation of the right to enjoy culture As noted earlier, the best interests checklist provides that a court must consider ‘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 the ‘likely impact any proposed parenting order will have on that right’ (section 60CC(h)). The right is posed in the objects (section 60B(3)) in positive terms: (a) to maintain connection with the culture and (b) to have the support, opportunity and encouragement to explore ‘the full extent’ of that culture consistent with the child’s age and developmental level and views and develop ‘a positive appreciation’ of that culture. The FLA section 4 provides, in a somewhat circular fashion that ‘Aboriginal or Torres Strait Islander culture in relation to a child … means the culture of the Aboriginal or Torres Strait Islander community or communities to which the child belongs’ and ‘includes Aboriginal or Torres Strait Islander lifestyle and traditions of that community or communities’.125 The definition recognises the significance of the specificity of the child’s own community. There has been little explicit discussion in the jurisprudence of the court of what is meant by ‘culture’. In a case concerning non-Indigenous parents, Ryan FM

124 Keryn Ruska and, Zoe Rathus, ‘The Place of Culture in Family Law Proceedings: Moving beyond the Dominant Paradigm of the Nuclear Family’ [2010] Indigenous Law Bulletin 32. 125 See also Sheldon & Weir (No 3) [2010] FamCA 1138 on when a child is Aboriginal. Upheld on appeal in Sheldon & Weir [2011] FamCAFC 212.

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stressed that the ‘essence of culture’ was a shared experience and perspective or mode of interpretation within a social group rather than tangible artefacts or cultural elements.126 On the question of the extent to which exposure to culture and community will satisfy the aims of section 60B(3) and 60CC(h)), the Family Law Council observed a ‘broad range of judicial opinion as to what level of exposure to Aboriginal and Torres Strait Islander culture’ would suffice.127 Court determinations of what constitutes adequate cultural exposure in decided cases varies from attendance at National Aboriginal and Islander Day Observance Committee (NAIDOC) week128 and Sorry Day129 events (seen by some as tokenistic), to immersion in culture through spending significant amounts of time on traditional lands.

9.4.3 Examples of cases applying the 2006 amendments Given Aboriginal and Torres Strait Islander family constellations and arrangements for children’s care, important questions arise regarding the application of those amendments to parenting disputes involving them, especially given the emphasis of the amendments on biological parents. To date, the main Full Court decision dealing with the 2006 amendments is Donnell & Dovey. This case concerned a child whose father was a Torres Strait Islander and whose mother was Aboriginal (Wakka Wakka).130 Prior to the mother’s death, when the child was around five years old, the father had only seen the child on four brief occasions. After the mother’s death, the child’s adult half-sister took over his care and he lived with her and her husband for over two years prior to trial. At first instance the Court ordered the child live with the father. In overturning the decision and remitting the matter for rehearing, the Full Court (Warnick, Thackray and O’Ryan JJ) criticised the failure at trial level to address the Indigenous culture and extended family relationships of the sister whose cultural context was urban in contrast to the father’s more traditional Torres Strait Islander lifestyle. The Full Court criticised the trial judge’s failure to consider section 61F when applying the objects set out in section 60B: [W]e have concluded that his Honour should have been aware of, and taken into account, the fact that the 2006 amendments were aimed at ensuring that cases involving indigenous children are no longer determined on the basis of automatic acceptance of ‘modern Anglo-European notions of social and family organisation’. In our view, it should have been apparent that the report writer’s recommendations 126 HR & HJ [2003] FMCAfam 31, [26]. 127 Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, above n 111, p 74. 128 ‘NAIDOC Week celebrations are held across Australia each July to celebrate the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. NAIDOC is celebrated not only in Indigenous communities, but by Australians from all walks of life … NAIDOC originally stood for “National Aborigines and Islanders Day Observance Committee”. This committee was once responsible for organising national activities during NAIDOC Week and its acronym has since become the name of the week itself ’: National Aborigines and Islanders Day Observance Committee, About NAIDOC, . 129 Held on 26 May since 1998: Australian Government, Sorry Day and the Stolen Generations, 22 October 2009, . 130 Donnell & Dovey [2010] FamCAFC 15 (Warnick, Thackray and O’Ryan JJ).

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were firmly based on such notions, the writer having failed to take into account in any way the fact that O is an Aboriginal child.131

The Full Court also found the federal magistrate had relied on research cited by the family report writer on the importance of biological parentage in circumstances where there was reason to question whether such research applied equally to Indigenous children, and had made assumptions about cultural practices that were not supported by evidence. It was also found that the family report writer did not consider the child’s cultural heritage on the mother’s side to the same extent as the father’s cultural heritage132 when making her recommendations. With regard to how evidence about the cultural and kinship traditions of a particular Indigenous community might be adduced, the Full Court held that such may be given by an accepted person from within that community.133 In addition, their Honours held that the evidence ‘need not necessarily be given by an anthropologist, nor need it be the subject of “well recognised peer reviewed research”’.134 The decision in Hort & Verran,135 another appeal case, illustrates some of the circumstances in which competing applications by parents and grandparents arise in cases involving Aboriginal and Torres Strait Islander children. In Hort & Verran, the Full Court (Coleman, O’Ryan and Strickland JJ) considered an appeal from a FMCoA decision of Brown FM that resulted in two children, aged nine and seven, living with their nonAboriginal paternal grandmother who had been caring for them for the past two years. The children’s mother, a Tiwi Islander, was seeking orders for the children to live with her, arguing that this was necessary for them to ensure full enjoyment of their Tiwi cultural heritage. She appealed against the FMCoA orders, arguing that the issue of Aboriginality had been given insufficient weight in the decision. Under the FMCoA decision, the children were to spend time with their mother on weekends and during school holidays and this was considered sufficient to support development of their cultural identity and knowledge, which the federal magistrate held was to be given ‘real weight and significance’.136 This outcome was considered in the best interests of the children, despite acknowledgement by the federal magistrate that the children had been exposed to family violence in the grandmother’s home when their father assaulted her and that the grandmother was not particularly positive about their cultural heritage. The federal magistrate was concerned about the mother’s past inability to provide the children with a stable environment and the past occurrence of family violence in her environment as well. The mother’s appeal on the question of whether her Tiwi Islander heritage was given insufficient weight was rejected. The appeal court held that ‘the learned Federal Magistrate was acutely aware of the need for the children to maintain a real connection with their Tiwi culture’ and of the need to avoid them ‘simply receiving information and knowledge 131 132 133 134 135 136

ibid., [332]. ibid., [331]–[336]. See also Hort & Verran [2009] FamCAFC 214, [120]–[121]. Donnel & Dovey [2010] FamCAFC 15 [228]. Hort & Verran [2009] FamCAFC 214. Verran & Hort and Verran [2009] FMCAfam 1, [269] (Brown FM).

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about their cultural background in a tokenistic or meaningless way’.137 The argument that evidence of a community elder (the maternal grandmother) was insufficient to inform the court of the relevant issues, and that anthropological evidence should have been adduced, was also rejected: ‘The evidence of the maternal grandmother provided an extensive insight into the Aboriginality issue which was so pivotal to the determination of the case before the Federal Magistrate. There was no suggestion before his Honour that the evidence of the maternal grandmother inadequately revealed or explained Aboriginality.’138 On the question of expert evidence and sources of knowledge on Aboriginal and Torres Strait Islander culture, the Full Court’s comments are informative: Whilst there may be cases where anthropological evidence is of assistance, we question the extent to which that could realistically be so when, as occurred in this case, there is available expert opinion evidence from an Elder of a particular Indigenous group or society. It is to be remembered that the cultural heritages of the hundreds of Indigenous tribes in this country vary significantly, and that the culture is preserved and passed on by the Indigenous Elders to whom it is entrusted, via the oral tradition. Thankfully, it is now generally accepted in Australia that Aboriginal peoples can speak for themselves, particularly in relation to their own culture and traditions. The potential for non-Aboriginal Euro-centric impressions or interpretations to usefully inform Courts in relation to Aboriginality must now be limited in ways it was not in earlier times.139

The 2008 first instance decision by Murphy J in Van Rodenberg and Carne140 provides a slightly sharper focus on the question of the balance between protection from harm and cultural identity, and illustrates how these issues raise competing considerations in parenting cases. In this case, the mother was Aboriginal and the father non-Indigenous. There were two daughters of the relationship, aged 10 and 11-and-a-half at the time of trial. For six years, the children had lived with the father and contact with the mother had occurred at a contact centre for the two-and-a-half years leading up to the trial. The selfrepresented mother’s argument focused on cultural recognition, including her desire to inculcate cultural women’s knowledge in her daughters through visits to sacred women’s sites and association with her community more generally. No expert evidence in relation to culture was adduced. The father argued that if the girls lived with the mother they would be susceptible to sustaining emotional and psychological harm because of the mother’s vehement hatred of him. Court orders in earlier proceedings had resulted in the pre-existing arrangements on this basis. Murphy Justice rejected the mother’s application for residence and declined to make any orders in relation to parental responsibility. His Honour made orders that meant the girls remained living with their father but would spend increasing amounts of time with their mother, initially on a supervised basis and then for alternate weekends on an unsupervised basis. He noted that the need for the girls to have both a meaningful relationship with 137 138 139 140

Hort & Verran [2009] FamCAFC 214, [107] (Coleman, O’Ryan and Strickland JJ). ibid., [118] (Coleman, O’Ryan and Strickland JJ). ibid., [121] (Coleman, O’Ryan and Strickland JJ). Van Rodenberg and Carne [2008] FamCA 478.

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their mother and a connection with their Aboriginal culture was important to his decision. He also ordered that the mother undergo further counselling in relation to her attitude to the father. In summary, our consideration of post-2006 amendment parenting cases involving Aboriginal and Torres Strait Islander children suggests that, consistent with increasing social and legislative recognition of the need for children from these communities to maintain substantial connections with their cultures, there is significant emphasis on this question and a tendency for courts to require that evidence, including from family report writers, address these issues in depth and detail. Moreover, it is considered appropriate for such evidence to be supplemented by evidence from community elders rather than anthropological evidence on these points. However, while the cases discussed suggest that increased time with Aboriginal parents is being justified on cultural grounds, this does not translate into court orders for arrangements where children live with their Aboriginal parent where there are countervailing protective concerns. The impact of the 2012 amendments on the way that the balance between cultural recognition and protection from harm will be struck has yet to be seen.

9.5 Applications by people who are not parents Despite their name, ‘parenting disputes’ do not necessarily involve parties who are parents of the child whose parenting arrangements are in dispute. In this section, we consider in more detail the range of issues that arise in such cases.

9.5.1 Eligibility to apply As noted in 8.2.1, it is not only parents, but also grandparents and ‘any other person concerned with the care, welfare or development of the child’ who can apply for parenting orders (section 65C(c)). The legislation also makes it clear that a parenting order can be made in favour of either ‘a parent of the child or some other person’ (section 64C). People who are not parents of a child can have parental responsibility allocated to them to the extent expressly provided for in an order or the extent necessary to give effect to the order (the implication of sections 61C and 61D). People who are not parents can also be allocated parental responsibility under a parenting plan (section 63C(2)(c)), although the parenting plan must have been entered into by the parents of the child (section 63C(1)(b)). In the case of KAM & MJR,141 Burr J held that for an applicant to be regarded as a person ‘concerned with the care, welfare or development of the child’ they must first satisfy the ‘threshold question’, which requires more than being ‘concerned about’ or having a mere ‘interest in’ the child. The Court also held that ‘the degree or strength of nexus’ of the concern depends upon the facts and will be an issue for determination in each case, an approach upheld by the Full Court (Bryant CJ, Boland and Crisford JJ) in Aldridge & Keaton.142 In the past, grandparents were required to meet the threshold test in order to 141 KAM & MJR [1998] FamCA 1896. 142 Aldridge & Keaton [2009] FamCAFC 229.

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apply for a parenting order. However, the test no longer applies to grandparents following the introduction of section 65C(ba) in 2006. Parenting order applications by grandparents are discussed below (9.5.3.1). Eligibility to apply for orders under section 65C(c) is based on an assessment of present circumstances. Thus, if a long period of time has passed in which an applicant has not seen the child, even where the lack of contact is the result of the parent refusing it, they are vulnerable to a finding that their importance to the child has not developed, or has passed and is thus merely ‘historical’.143

9.5.2 Current approach Prior to the 2006 amendments, the case law emphasised that ‘parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare [of the child]’, but that there is no presumption in favour of a natural parent.144 The denial of such a presumption is in sharp contrast to the position in other jurisdictions, such as in many states of the United States (US), where ‘non-parents’ often lack standing to bring applications at all.145 The assertion that there is no such presumption in Australia may, however, serve to mask the true strength of the ‘parent factor’ in decision making under the FLA.146 The 2006 amendments place renewed emphasis on parenthood, both in the objects and principles section (section 60B) and in the primary considerations for determining best interests (section 60CC(2)). These provisions most obviously have an impact in cases where a parent and a non-parent are both seeking orders to have the child live with them. The Full Court has nevertheless stated repeatedly that the provisions do not establish ‘presumptions or preferential positions’147 for the parent, nor ‘a hierarchy of applicants for parenting orders’.148 The Full Court has also provided some guidance with regard to the legislative pathway for non-parents. In Aldridge & Keaton,149 the Court emphasised that consideration of all of the section 60CC best interests factors is relevant, and it is not an error to consider those of them that refer to a ‘parent’ even in relation to the party who is not a legal ‘parent’.150 This is by virtue of section 60CC(3)(m), which allows the court to ‘overcome the strict language of the Act’ through the catch-all of ‘any other fact or 143 See, e.g., Harris & Calvert [2013] FCCA 955; Venkatesan & Pawar [2007] FMCAfam 1109. This issue is discussed in relation to other cases in Jenni Millbank, ‘De Facto Relationships, Same-Sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 160. 144 Rice & Miller [1993] FamCA 87; (1993) 16 Fam LR 970, 977. See also Re C and D [1998] FamCA 98. 145 See Martin Guggenheim, What’s Wrong with Children’s Rights, Harvard University Press, Cambridge MA, 2005, pp 50–96; Jenni Millbank ‘The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family’ (2008) 22 International Journal of Law, Policy and the Family 149. 146 See Mulvany & Lane [2009] FamCAFC 76, [14], [15]. See also Richard Chisholm, ‘Did the 2006 Amendments Downgrade Non-Parents? Aldridge v Keaton’ (2010) 24 Australian Journal of Family Law 123. 147 Valentine & Lacerra and Anor [2013] FamCAFC 53, [43] (Faulks DCJ, Coleman and Strickland JJ). 148 Aldridge & Keaton [2009] FamCAFC 229, [83] (Bryant CJ, Boland and Crisford JJ). 149 ibid. 150 ibid., [79]; Potts & Bims and Ors [2007] FamCA 394, [8]; Mulvany and Lane [2009] FamCAFC 76, [76], [77].

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circumstance that the court thinks is relevant’.151 The lack of clarity with regard to nonparents and the best interests test has, however, been noted: It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that  the legislation does not give some clearer indication of the weight to be attached  to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.152

Yet the current legislative provisions draw a distinction between parents and other caregivers and concerned adults in a way that gives rise to confusion about how to address these claims when they are in contest. For example, in Burton & Churchin,153 the Full Court (Finn, Strickland and Loughnan JJ) held that a failure to apply section 60CC(2)(a) to a parent in written reasons, even when that parent was not an active party in proceedings, constituted an appealable error. In Burton & Churchin, the child’s father had died and the mother had only limited and sporadic daytime contact with her for many years. It was held at trial, and the Full Court agreed, that the mother could not be relied upon to care for the child or consistently participate in her life. The parenting dispute was primarily between the child’s step-mother (her father’s former wife, prior to the child’s birth) and the paternal aunt, though the mother was also a party to the proceedings. The child, aged 10 at trial, had been living with her father prior to his death from a drug overdose, but had spent considerable time with the step-mother. Following the father’s death, the child was placed in the care of the step-mother by the Department of Family and Community Services. The step-mother, with whom the child had previously never lived, applied for sole parental responsibility and for the child to live with her and the child’s step-sister in Sydney. A significant element of the step-mother’s case was that the child should remain in Australia so she could continue the limited contact she had with the mother. The paternal aunt wished to relocate with the child to France, where the father’s family resided. The mother failed to participate in the proceedings at trial or on appeal. The expert evidence indicated, however, that while the child had good relationships with both her step-mother and aunt, the child’s ‘primary attachment figure’ was her mother.154 At trial, Johnston J ordered that the aunt have sole parental responsibility for the child and that the child live with her aunt in France. In making his decision, Johnston J held that section 60CC(2)(a), though it referred only to ‘parents’, applied to the relationship between the child and each of the step-mother and the aunt. He also dismissed the relationship between the child and her mother, holding that the mother’s failure to appear at the hearing meant that she could not be regarded as ‘a serious contestant’ in the dispute 151 152 153 154

Valentine & Lacerra and Anor [2013] FamCAFC 53, [54]; Malcolm & Monroe [2011] FamCAFC 16, [97]. Mulvany & Lane [2009] FamCAFC 76, [15] (Finn J). Burton & Churchin [2013] FamCAFC 180. Burton & Churchin [2013] FamCA 597, [224].

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and that the ‘real contest’ was between the step-mother and the aunt.155 The step-mother appealed on the basis that Johnston J wrongly held that section 60CC(2)(a) applied to both the step-mother and the aunt and, in particular, that it was relevant to consider the benefit of the child of having a meaningful relationship with each of those persons. The Full Court upheld the appeal, holding that the trial judge was in error in applying section 60CC(2)(a) to the step-mother and aunt to consider which of the two was her ‘primary attachment’, and in not addressing the question of which placement would permit her to have the benefit of a meaningful relationship with ‘her only surviving natural parent’. As the court stated: We accept that his Honour did in fact make an error of law when he expressed the view … that the primary considerations in s 60CC(2) ‘also extend to both the stepmother and the aunt for the reason that clearly [the child] has a close relationship with each of them.’ There can be no question (and regardless of what may have been said in other cases) that the words of s 60CC(2), or more accurately s 60CC(2)(a), refer only to the benefit to the child of having a relationship with both the child’s parents. The paragraph says what it means, and there is no canon of statutory construction which would enable it to be rewritten. If this needs to be confirmed then we refer to and adopt what the Full Court said in Donnell & Dovey: ‘In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. That is so because the paragraph refers only to “parents”, and there is no extended definition of that word.’156

The matter was remitted for retrial. In summary, while it is not an error to draw upon the best interests considerations that refer to ‘parent’ when addressing the relationship of a child with a non-parent (by virtue of section 60CC(m)), it is an error to consider a non-parent as a parent. It is also an error to fail to address the ‘parent’ factors in a dispute between non-parents, where a parent has some role in the child’s life, even if only a minor contact relationship.

9.5.3 The variable contexts of non-parent applicants The types of situations in which non-parent claims arise vary widely and include disputes between grandparent/s and a parent;157 mothers and fathers where the father is discovered at some point not to be a genetic parent; and known sperm donors, in particular in cases where children are being raised in lesbian-headed families. In this section we consider case law from each of these situations. It is important to note that there may be very significant differences of approach in cases where the person who is not a parent is seeking time with a child, as distinct from primary residence or parental responsibility, and the approach may also differ markedly if the parents’ family unit is still intact and/or if the application is resisted by both parents. 155 ibid. [186]. 156 ibid. [51]. 157 See Deborah Brennan, Bettina Cass, Saul Flaxman, Trish Hill, Bridget Jenkins, Marilyn McHugh, Christane Purcal and kylie valentine, Grandparents Raising Grandchildren: Towards Recognition, Respect and Reward, Report No. 14/13, Social Policy Research Centre, Sydney, 2013.

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9.5.3.1 Grandparents The presence of grandparents as applicants in family law court proceedings may arise as a result of a grandparent seeking to have (or continue with) a child living with them, as against a parent with impaired capacity, not infrequently when care of the child was relinquished to the grandparent at some earlier stage. In other instances, the grandparent may be making an application for parenting time, perhaps joining the application of their own child against the other parent, or separately asserting a relationship in the face of resistance by the parent who is not their own child. The latter scenario arises also when a parent has died and the deceased parent’s parents, or other close relations, seek to maintain a relationship with the child that is resisted by the surviving parent. Finally, there are applications by a grandparent for time with children who are still in an intact family where the relationship is resisted by both parents (that is, the grandparent’s own child does not support the contact).

9.5.3.1.1  Grandparents and ‘live with’ orders In disputes between grandparents and a parent about where a child will live, often where the parent has suffered impairment through drug use or mental illness,158 it is not uncommon that the grandparents have provided primary care for a prolonged period. In such cases (and consistent with our discussion at 9.6 below), parents can often succeed in regaining residence if they have undertaken treatment or can demonstrate that they are no longer impaired and wish to regain the responsibilities of parenthood.159 However, this is not universally so. For example, in Carlson & Bowden160 the paternal grandmother and her partner applied for parental responsibility for their four-year-old grandchild. The parents had significant drug problems, including heroin addiction, and the father’s criminal history included violence and firearms offences. The child’s father did not file a formal application and he acknowledged in affidavit evidence that he was unfit to be the child’s primary carer. Even though Murphy J found the parties each had their drug addictions currently under control,161 his Honour rejected the mother’s application for parental responsibility and equal time, shared with the grandmother. Instead, Murphy J awarded sole parental responsibility to the grandmother and ordered that the child live with the grandmother and her partner, and spend defined time with each parent. In making these orders, his Honour found the best interests of the child were served by the stability and routine provided by the grandparents and their superior capacity to parent. He stated: I should also make it clear that I am acutely conscious that I propose making orders placing L in the care of a non-parent when the Act, in a number of different, but related, ways, requires me to consider the primary importance of each parent having a vitally important continuing role in L’s life. Ultimately, however, the decision is 158 Leo & Hanson [2010] FAMCA 321; Hort & Verran [2009] FamCAFC 214. 159 Rodeo & Pryor [2011] FamCAFC 180. Another significant factor in this case was that the siblings were separated between the father’s and grandmother’s households. 160 Carlson & Bowden [2008] FamCA 1064. 161 Seventeen months after the trial, the mother reapplied for orders. It was held that though the mother had remained drug free, the ‘material change’ standard required in Rice and Asplund had not been met. Carlson & Bowden [2010] FamCA 432.

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about, and guided by, L’s best interests. In my view, a decision about best interests in any case is arrived at by assessing the nature and value of the mooted relationship between the mooted carers and the child. Time is how divisions in the co-parenting relationship (and court orders) is expressed, but a decision about time in my view follows from a decision about the nature, extent and parameters of the relationship between child and carer, measured by its value (or potential for harm) to the child. Here, by reason of the matters discussed, and findings made above, I am firmly of the view that L will benefit most from maximising the care-giving provided by the grandparents and the relationship flowing from that. I consider that it is clearly in his best interests for him to receive the great bulk of his day to day care and nurturing from them.162

9.5.3.1.2  Death of a parent Another context in which grandparent claims commonly arise is on the death of one of the parents. For example, Valentine & Lacerra163 involved a parental dispute between the child’s father, and maternal aunt and maternal grandmother, following the mother’s death. After the mother’s death the child was in the care of the father and he had prevented the child from seeing the maternal family on several occasions. The father relocated from New South Wales to Victoria, despite interim orders providing for the child to spend weekend time with the maternal family. The aunt and grandmother applied for orders to spend time with the child on the weekends and school holidays. The father did not oppose the child having time with the maternal family, but disagreed slightly as to the length and frequency of this time. Federal Magistrate Harman made orders in line with the maternal family’s proposal, for the child to live with the father in Victoria and spend time with the maternal family during school holidays and on weekends when the child was not interstate. The father appealed on the basis that the trial judge had not given proper weight to his status as sole surviving parent and the only person with parental responsibility. The father argued he ought to be able to parent as he saw fit, including in relation to decisions about with whom the child has a relationship.164 The Full Court (Faulks DCJ, Coleman and Strickland JJ) allowed the appeal on another issue, but rejected the father’s argument, holding that ‘there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent … having regard to the best interests of the child as the paramount consideration’.165

9.5.3.1.3  A parent resisting a claim by their own parent In cases where a parent is resisting an application to spend time with a child brought by the parent’s own parent, the court has tended to defer to the parent’s judgment. For example, in Church & S Overton,166 the maternal grandfather sought orders allowing him to send cards, 162 163 164 165 166

Carlson and Ors & Bowden [2008] FamCA 1064, [217]–[219]. Valentine & Lacerra and Anor [2013] FamCAFC 53. ibid., [36]–[40]. ibid., [43]. See also Burton & Churchin and Anor [2013] FamCAFC 180. Church & T Overton [2008] FamCA 952.

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letters and presents to the children of his three adult daughters,167 as well as to speak with the children monthly and spend time with them for two hours four times a year. The children’s mother submitted that any relationship between the children and the grandfather would cause her great stress and that the grandfather was spitefully using court proceedings to distress her. Ultimately, Benjamin J allowed the grandfather to send letters or cards to each grandchild, but dismissed all other applications. Justice Benjamin held that where parents have a strong view, individually or separately in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility and that ‘in general, parents best know their own children and the dynamics of the family’.168 The Court also held that any determination of a child’s best interests should be informed by family dynamics, and the relationship between the child’s parents and the grandparents.169 In contrast in Jacks & Samson,170 the Full Court (Coleman, Boland and Stevenson JJ) held that there was no error in a trial judge’s determination171 that the child spend three days every four weeks with the maternal grandparents, despite evidence that the prospect of any contact caused the mother great stress and anxiety.172 In Jacks, the maternal grandfather had been emotionally abusive to the mother. One expert report had suggested he suffered from narcissistic personality disorder, while a joint expert opinion found he had narcissistic personality traits.173 It was concluded by the report writers, however, that he posed no risk to the children. The report writers also concluded that the children would benefit from a relationship with the grandparents so that they would have ‘a real experience, without the fantasy and questions associated with a lack of contact.’174 This conclusion ultimately formed the basis for the trial and appeal decisions. While the Full Court concluded that the mother would suffer significant distress if the children were to spend time with their grandparents, greater harm would be done to the children when they inevitably became aware of the fact that, while their grandparents lived nearby, they never saw them. When the relationship between the parents is still intact and a grandparent or other relative brings a claim for time with a child, the question of parental autonomy comes to the fore. In what circumstances will parents’ decisions about who their children spend time with—a decision ordinarily understood as an incidence of parental responsibility—be overruled by a court? The Full Court commented in Valentine & Lacerra that Benjamin J had ‘gone too far’ in Church by suggesting ‘that the commencement of the decision-making process is a presumption that a parent knows best, and the onus is on a non-parent to persuade the Court that the role of the parent should be usurped and their views disregarded’.175 Yet it does appear that where the parents’ relationship is intact, applications by other adults are far less likely to succeed, either because they are perceived as an intrusion into the nuclear 167 The grandfather filed identical applications against all three of his daughters, all of whom opposed the applications. The family had been involved in family litigation in one form or another for more than a decade. 168 Church & T Overton [2008] FamCA 952, [46]–[47]. 169 ibid., [41], [43]. 170 Jacks & Samson [2008] FamCAFC 173. 171 Samson & Jacks [2008] FamCA 176. 172 Jacks & Samson [2008] FamCAFC 173. 173 Compare this with the single judge decision of Moore J in Potts v Bims and Ors [2007] FamCA 394, [61]–[65], [69]. 174 Jacks & Samson [2008] FamCAFC 173, [66]. 175 Valentine & Lacerra [2013] FamCAFC 53, [42].

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family, or because the stress and disruption associated with contact outweighs any benefit that might be gained.176

9.5.3.2 Putative fathers Mistaken paternity has always occurred, but is now much easier to identify as a result of readily available, inexpensive, and highly accurate commercial DNA testing.177 The question of paternity and parentage testing (see Chapter 4) most frequently arises in the context of contested child support applications (see Chapter 11), in cases where the man named by the mother as the father denies paternity. However, it also arises in contested children’s cases when the mother, in the course of proceedings, denies that the father is a genetic parent or, less commonly, when a man from outside the family unit alleges that he is the genetic father of children who have been assumed to be those of the woman’s male partner.178 In these cases the child has usually grown up believing the man they have been raised by is the father and the man may well have thought so too. In Mulvany & Lane,179 the child, aged five, had lived with and known H as his father from birth to age four, when the parents separated. The mother was seeking to relocate to Hong Kong and claimed that H was not the child’s biological parent, which DNA testing during the course of proceedings confirmed. The mother submitted that because the legislature intended to distinguish between parents and non-parents, the focus of the analysis should be on the benefit to the child of having a meaningful relationship with his mother. Federal Magistrate Howard accepted this, saying that ‘the only “relevant” primary consideration is the benefit to the child of having a meaningful relationship with the mother’ (section  60CC(2)(a)).180 His Honour then posed this question, using it as a heading for the subsequent discussion: ‘What outcome will best ensure that [the child] has a meaningful  relationship with his mother?’ Focusing almost exclusively on this question, Howard FM concluded that the mother should be permitted to relocate, though the child would have considerable contact with H, both in Australia and Hong Kong. H appealed on the basis that while the federal magistrate was correct in holding that section 60CC(2)(a) related only to the mother, he had incorrectly treated a meaningful relationship between the child and the mother effectively as ‘a consideration which trumped or prevailed over all other additional considerations including the child’s relationship with the Appellant Father’.181

176 Oldfield & Oldfield [2012] FMCAfam 22, [110]; Danes & Danes [2013] FMCAfam 281. In an extreme case, the maternal grandparent was a declared vexatious litigant (Bemert & Swallow [2009] FamCA 5) and was ordered to pay costs (Bemert & Swallow (No. 2) [2009] FamCA 708). 177 For a study of how these situations arise and women’s responses, see Lyn Turney, ‘Paternity Secrets: Why Women Don’t Tell’ (2005) 11 Journal of Family Studies 227. 178 For cases where a male third party seeks orders that he is a genetic parent of children living with the mother, see Letsos & Vakros [2009] FMCAfam 897; Vakros & Lestos [2012] FamCAFC 40; Tryon & Clutterbuck [2007] FamCA 580; Clutterbuck & Tryon & Anor [2008] FMCAfam 784; Tryon & Clutterbuck (No 2) [2009] FamCAFC 176; Tryon & Clutterbuck [2010] FamCAFC 80; Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229. 179 Mulvany & Lane [2009] FamCAFC 76 (May and Thackray JJ, Finn J in agreement). 180 ibid., [36]. 181 ibid., [60].

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In allowing the appeal, the Full Court (May and Thackray JJ, Finn J in agreement) held that while Howard FM was correct to conclude that H was not a ‘parent’ within the meaning of the FLA, he ‘erred in the way in which he allowed that conclusion to affect the process of reasoning by which he reached his decision.’182 In addition, Finn J criticised the federal magistrate for treating the husband as a ‘parent’ for the purposes of various paragraphs of s 60CC(3) (the ‘additional considerations’) while not treating him as a parent for the purpose of the ‘primary consideration’, stating that this unexplained and apparently inconsistent approach was ‘a significant flaw in his Honour’s reasoning’.183 A similar criticism was made by May and Thackray JJ: In our view, his Honour was quite right to consider and make findings in relation to all of the relevant ‘additional considerations’ in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a ‘parent’. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a).What occurred instead is that the father was treated as a ‘parent’ for some purposes but not others.184

This conclusion has been criticised by Richard Chisholm on the grounds that it fails to acknowledge the legislative distinction between parents and non-parents. As Chisholm explains: The Federal Magistrate had held, and May and Thackray JJ accepted, that the father was not a ‘parent’. It seems to follow inexorably that s 60CC(2)(a), which only refers to ‘parents’, cannot include him. It would have been plainly wrong for the Federal Magistrate to have held that the husband was a ‘parent’ within the meaning of the paragraph. What their Honours seem to be suggesting is that the Federal Magistrate might have interpreted the word ‘parent’ wherever it occurs in s 60CC as meaning not only a parent but a person who has acted as a parent. With respect, that would be a difficult argument to make. The provisions of Pt VII distinguish at various points between parents, grandparents, persons with whom a child has been living, and ‘person concerned with the care, welfare or development of the child,’ and the Act goes to the trouble of saying that a parent includes an adoptive parent. This is difficult to explain if ‘parent’ has a wide and flexible meaning capable of including the husband in the circumstances of Mulvany. In my view it is reasonably clear that while the primary consideration in para (a) is indeed limited to people that fall within the legal definition of ‘parents’, various of the additional considerations allow the court to take into account other significant people.185

The decision in Mulvany suggests that a putative father who has acted as a parent, but subsequently been discovered not to be a genetic father, should be addressed under the provisions that refer to parents if it is in the child’s best interests to do so. Further, it is wrong to assume that ‘primary considerations’ will outweigh additional considerations. 182 183 184 185

ibid., [75]. ibid., [7]. ibid., [78]. Richard Chisholm, ‘When a “Father” Turns Out Not To Be, Does the Act Give Priority to the (Biological) Mother? Mulvany v Lane’ (2010) 24 Australian Journal of Family Law 128.

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Indeed, the reasoning of the Full Court appears to suggests ‘that the weight or significance to be given to a factor is unaffected by whether it falls within the category of “primary” or “additional”’.186 While assessing the importance of a relationship from the perspective of the child who has been cared for and raised by a social parent is appropriate, such an approach is not consistently applied. For example, in the child support context, men in the same situation as H in Mulvany are excused from any future obligation for child support (and may indeed be able to recoup previous payments made following separation, but not prior to it: see Chapter 11). The decision to treat some social parents ‘as’ parents, but not others, may also reveal underlying value judgments about the role of gendered parenting and the heteronuclear family (see discussion in Chapter 4).

9.5.3.3 Known sperm donors As discussed in Chapter 4, known sperm donors present unique issues for family law. While section 60H clarifies that sperm donors are not legal parents, when a sperm donor is known and has an (often limited) relationship with the child, courts are reluctant to permit mothers to bar them from having an ongoing relationship with the child. Known donors are usually considered non-parents due to section 60H.187 However, they are frequently awarded time with their genetic children. In fact, in all of the Australian cases of which the authors are aware, known sperm donors have been successful in seeking orders for time with their genetic child, with judges often struggling to see past the genetic relationship.188 In more recent years, cases demonstrate a somewhat more nuanced consideration of the nontraditional roles various adults play in arrangements between known donors and lesbianled families, addressing in particular the significance of the security of the caregiving unit in which the child is living. Overall, however, the cases indicate a strong trend towards ordering that children spend time with their genetic fathers, even when conceived via sperm donation. In one of the first cases to expressly deal with the legal status of a known donor, the 2002 case of Re Patrick (discussed in Chapter 4), Guest J made orders for a child, aged two years, to spend time with the man who had donated his sperm to a lesbian couple for the purposes of conception.189 The donor had spent limited time with the child prior to the hearing. Even though the sperm donor was found not to be parent for the purposes of the FLA, Guest J referred to him as ‘the father’ throughout and held that the child would have much to gain from a relationship with him. In the more recent case of Wilson and Anor & Roberts and Anor (No. 2),190 Dessau J also made orders for a sperm donor and his male partner to spend time with a two-year-old 186 ibid. 187 See, e.g., Re Patrick [2002] FamCA 193. 188 See, e.g., Re Patrick [2002] FamCA 193; R & J and Anor [2006] FamCA 1398; Wilson and Anor & Roberts and Anor (No. 2) [2010] FamCA 734; Groth & Banks [2013] FamCA 430; Reiby & Meadowbank & Anor [2013] FCCA 2040. 189 Re Patrick [2002] FamCA 193. Note that this was decided prior to 2008 when second female parents became recognised as parents under the FLA. 190 Wilson and Anor & Roberts and Anor (No 2) [2010] FamCA 734.

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child, who had lived with his mothers since birth. The men had played a significant role in the child’s life, spending time with him from birth, often without the presence of his mothers. The child’s mothers argued that the level of conflict existing between the parties meant any contact between the men and the child would be contrary to the child’s best interests. Justice Dessau found that the child was conceived with the intention that the sperm donor and his partner contribute to his care and upbringing, and held that the child would benefit from a relationship with the two men. Though Dessau J ordered that the child should spend time with the two men, parental responsibility was awarded to the mothers as the child’s ‘primary attachment figures.’ The judge also held that the women should not be prevented from relocating overseas at a later point. Similarly in the recent case of Reiby v Meadowbank & Anor,191 a known sperm donor sought orders for equal shared parental responsibility and graduated time, increasing to five nights a fortnight with the two-year-old child. Justice Small considered the benefit of a meaningful relationship with the man under section 60CC(3)(m), and concluded that while time with the donor was in the child’s best interests, it did not follow that overnight contact should be ordered. Ultimately, Small J concluded that the child should have time with the donor in short blocks ‘to allow [the child] to benefit from knowing and having a genuinely meaningful relationship with the Applicant, while at the same time recognising that her primary family consists of the Respondents and her’.192

9.6 Parental mental illness As our discussion in Chapter 8 and earlier in this chapter has indicated, parental capacity is of key relevance to the court’s determination of the child’s best interests. Given the nature of the family law courts’ caseload (Chapter 6), it is not surprising that concerns regarding parental incapacity are frequently evident. In this section, we focus on parental mental illness to illustrate the procedural and substantive challenges that may be faced by courts when deciding cases involving parental incapacity. Increasingly, parental mental illness (along with the often related problem of substance abuse) is being acknowledged as a significant issue arising in cases heard by the family law courts, and in the family law system more broadly. The Family Law Council noted in 2009 that ‘[it] is recognised increasingly that separation and divorce contribute to mental health problems and suicide and vice versa … Over the past decade allegations of violence in the Family Court are often accompanied by allegations of substance abuse and poor mental health’.193 In 2014, the Chief Justice of the FCoA, Diana Bryant, stated that the Court’s caseload ‘is now comprised of the most difficult and complex disputes; many of which involve a party or parties with physical and/or mental disabilities’.194 In 2013, Chief Judge 191 Reiby & Meadowbank & Anor [2013] FCCA 2040. 192 ibid., [234]. 193 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Attorney-General’s Department, Canberra, 2009, p 27. 194 Chief Justice Diana Bryant, ‘Submission in Response to the Australian Law Reform Commission Issues Paper 44’, Submission No. 22 to ALRC Inquiry into Equality, Capacity and Disability in Commonwealth Laws, 17  January  2014.

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John Pascoe observed that the incidence of mental health issues in that Court’s caseload appeared consistent with that in the broader community: In 2007 the Australian Bureau of Statistics conducted a survey on the prevalence of mental disorders in Australia. Of the 16 million Australians aged 16–85 years, the ABS found, 45 per cent had suffered from a mental disorder at some point in their lives [ABS, National Survey of Mental Health and Wellbeing, 2007]. Anecdotally this figure would appear consistent with the prevalence of mental illness among litigants who appear before the Federal Circuit Court. Litigants who present with a mental disorder present one of the Court’s greatest challenges, especially in the highly emotional areas of family, migration and human rights law.195

While our focus here is on cases that reach the family law courts, AIFS evaluation findings conveyed that mental ill-health is also a significant issue in the broader separating population.196 Half of the mothers and around one-third of the fathers interviewed for the Longitudinal Study of Separated Families (LSSF) W1 (Chapter 6) indicated that at least one of the following was apparent within their family before separation: mental ill-health, use of drugs and alcohol, and/or gambling or other addictions. Of these, mental ill-health problems and use of alcohol or other drugs were the most prevalent, and there was a significant overlap between reports of these two issues. Parents who reported these issues were also more likely to report that the other parent had physically hurt them and engaged in emotional abuse: ‘In other words, family violence seemed to be pervasive among families in which both mental health and addiction issues were present’.197 Conversely, the evaluation team also emphasised that mental health and substance abuse issues were also evident in a significant minority (about one in five) of cases where family violence was not reported. In family law proceedings, issues presented by parental mental illness (and impaired parental capacity more generally) are particularly evident in (but are not limited to)198 the context of parenting disputes. They often arise in applications concerning non-parents, especially grandparents, who are seeking parenting orders in cases where one or both parents have had a long period of impaired capacity and the children have been in the informal care of others as a result (9.5.1). However, they also often arise in disputes between parents regarding the care of their children (Vargas,199 discussed at 9.2.3, is an example). For family law courts, family law professionals and parents themselves, parental mental illness raises significant procedural and substantive issues.200 At a procedural level, if a parent is incapable of understanding the nature and possible consequences of John Pascoe, ‘Litigants with Mental Illness’ (2013) 23 Australian Family Lawyer 21. Kaspiew et al., above n 1, pp 28–9. ibid., p 30. See also Family Law Council, Improving Responses, above n 193, p 27. A recent example in relation to property litigation is Burns & O (a solicitor) [2010] FamCAFC 124 (O’Ryan J, on appeal from the FCoA). 199 Vargas & Clarke [2014] FamCA 109 (Bell J). 200 Pascoe, above n 195. 195 196 197 198

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the proceedings the court may appoint a case guardian to act on their behalf,201 but this occurs infrequently, and has been described as a process ‘fraught with difficulty’ that ‘in most instances is unsuccessful’.202 Particular challenges arise in cases where mental illness is apparent but undiagnosed, the parent does not accept that their mental health is of concern, and/or either or both parents are unrepresented: ‘All too often mentally ill litigants are unrepresented. The problems faced by mentally ill litigants are only compounded when they are self-represented’.203 As discussed in Chapter 3, self-represented litigants are not uncommon in family law litigation, presenting considerable challenges for courts, in terms of creating a ‘level playing field’ and containing the duration of proceedings.204 Litigants with mental health issues may also be extremely vulnerable.205 Indeed, widespread community misunderstanding and stigmatisation regarding mental illness (from which courts are not immune)206 ‘creates a real access to justice problem’207 for litigants so affected, both in finding a lawyer to represent them208 and where there is lack of representation. The significance of the issues raised is demonstrated by the family law courts’ joint implementation of a Mental Health Support Program in 2006 to improve mental health support for clients, focusing on referrals (including the development of better links with mental health services), development of protocols for staff, staff training and support, and evaluation.209 While evaluation has been positive, concerns remain and are likely to continue in the context of legal aid cuts.210 In terms of outcomes, parental incapacity is more likely to result in orders that a child will spend less time with that parent. As noted earlier (9.2), the FCoA’s 2010–11 Annual Report concluded, on the basis of data collected on shared time outcomes over that year, that ‘[w]hen a child is not given significant time with a parent, the reasons often have to do with violence and abuse (including substance abuse), or result from mental health problems

201 Family Law Rules 2004 (Cth) r 6.08; Federal Circuit Court Rules 2001 (Cth) r 11.8. For a recent example, see Marin  & Salmon [2013] FamCAFC 88. On the role of litigation guardians in family law courts see Bryant, above n 194; Brendan Ashdown, ‘Legal Capacity and Case Guardians’ (2014) 4 Family Law Review 25. 202 Pascoe, above n 195, p 25. 203 Pascoe, above n 195, p 22. 204 In the Marriage of N and ML Johnston [1997] FamCA 32, [121] (Ellis, Baker and Lindenmayer JJ). In that case, the Full Court set out guidelines regarding the obligations of judges when hearing parenting cases involving selfrepresented litigants. Further guidelines were laid down by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348 (Nicholson CJ, Coleman and O’Ryan JJ). In essence, courts must assist a self-represented party to present their case without providing strategic advice, and must also be mindful of the interests of the other party, including the risk of additional legal costs arising from a longer trial and the risks for them of crossexamination by their self-represented ex-partner, particularly in cases involving family violence. The guidelines are summarised in: Chief Justice Diana Bryant and Deputy Chief Justice John Faulks, ‘The “Helping” Court Comes Full Circle: The Application and Use of Therapeutic Jurisprudence in the Family Court of Australia’ (2007) 17 Journal of Judicial Administration 93, 103. 205 Pascoe, above n 195. 206 ibid., p 22. 207 ibid. 208 ibid., p 24. 209 Clare Witnish and Catherine Caruana, ‘Facilitating Psychological Support for Family Law Court Clients’ (2010) 16 Family Relationships Quarterly 17. 210 Pascoe, above n 195, p 24.

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affecting a parent’.211 However, parental mental illness does not necessarily lead to less time with the child, the key question for the court being what orders will be in the child’s best interests. An important issue will be the extent to which the parent’s mental illness is being addressed, monitored and controlled, so that the court can feel confident that the child’s safety and well-being will not be jeopardised by orders made in that parent’s favour. Specifically, AIFS researchers have summarised the risks that may be posed to children by uncontrolled parental mental illness as follows: Children of parents with an uncontrolled mental illness face a high risk of physical neglect. Basic needs may not be met, such as having regular healthy meals and clean clothes. Parents may fail to attend to children’s emotional needs, which can instil a sense of isolation and possible mistrust in children. There are risks of physical and psychological abuse by parents, if symptoms of illness contribute to the parent being violent, reactive or punitive … Children may become ‘parentified’ and assume the role of a carer for an ill parent or sibling. This can cause significant emotional stress and disrupt a child’s general development … Problems in a child’s cognitive development may also arise due to the parent’s inconsistent and neglectful behaviour.212 (references omitted)

However, the key word here is ‘uncontrolled’. In Payne & Payne213 the Full Court cited the judgment of Le Poer Trench J at first instance, who said that that ‘[t]he Court has long accepted that parents with a mentally ill health history can continue to expect that they will be permitted to be involved in the parenting of their children subject to adequate protection for the children and subject to it being otherwise in the children’s best interests.’214 A parent with a diagnosed mental illness may succeed in contested proceedings, including for majority time, if they can demonstrate that their condition is appropriately managed. For example, in Bostoi & Bostoi,215 a father appealed to the Full Court against parenting orders of Stevenson J in relation to the parties’ two children aged 14 and 10, to the effect that the parties have ESPR and that the children live with their mother and spend substantial and significant time with their father. After hearing evidence from the mother’s treating psychiatrist, Stevenson J ‘accepted that the mother has a psychiatric illness characterised by paranoia with brief, reactive psychotic episodes and that her condition is exacerbated by stress’,216 but concluded that although in the past the mother’s ‘compliance with the medication regime was not complete and there were times when she was quite psychiatrically unwell … the evidence established that after the separation of the parties the mother had been psychiatrically stable’.217 The father’s mental health was also an issue 211 Family Court of Australia, Annual Report 2010–11, Family Court of Australia, Canberra, p 73. 212 Leah Bromfield, Alister Lamont, Robyn Parker and Briony Horsfall, Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Abuse and Mental Health Problems, Issues Paper No. 33, NPC Issues, 2010, p 11. 213 Payne & Payne [2009] FamCAFC 13 (May, Boland and Dessau JJ). 214 ibid., [80] (May, Boland and Dessau JJ). 215 Bostoi & Bostoi [2011] FamCAFC 132 (Coleman, Ainslie-Wallace and Murphy JJ). 216 ibid., [12]. 217 ibid., [11].

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at trial, with Stevenson J concluding that while the father did not have a mental illness or personality disorder, his parenting capacity was limited by his controlling nature and lack of insight: I am not satisfied that the father suffers from any mental illness. I am satisfied that he does not have a personality disorder. I am persuaded that he is a controlling, dominating person who lacks real empathy with the children. I accept entirely that he loves and is devoted to the children but the issue is his insight into and capacity to meet their emotional needs. In my view, these personality traits impact adversely on the father’s capacity to understand or appreciate the children’s emotional needs and to separate his own perceptions from theirs. I have a real concern that his controlling character will bring him into conflict with them as they mature.218

On appeal, the father argued (among other things) that Stevenson J had paid insufficient regard to evidence relating to the mother’s mental illness. In dismissing the appeal, the Full Court referred to Stevenson J’s findings indicating not only that the mother’s condition was well-managed, but that the father had contributed to the mental health problems she had experienced in the past: I am satisfied, and I find that the mother’s psychiatric state has no adverse impact on her parenting of the children while she is in her current, well controlled condition. I  am persuaded that the stress of life with the father, particularly while cohabiting with his parents, exacerbated her condition. She is now freed from these sources of stress and has displayed no psychiatric symptoms since the separation. Of course, I cannot say that the mother will suffer no future psychotic episodes. I can and do, however, weigh this risk against the other considerations which I am required to take into account in determining what orders are in the best interests of the children.219

In Bostoi, the mother had taken steps to address her mental illness and this was supported by the evidence of her treating psychiatrist. In contrast, a parent who avoids or contests diagnosis may be seen as lacking insight and resistant to treatment that would be beneficial to their parenting capacity (Vargas, discussed above, provides examples). In addition, Bostoi underlines once again the range of factors contributing to parenting decision making: in that case, the father’s own compromised parenting capacity was clearly a significant factor.

9.7 Disputes as to where a child will live In this section, we look at two key contexts in which disputes as to where a child should live arise: relocation and international child abduction. Relocation disputes arise when a parent (or, occasionally, another interested person) is proposing to change the location of a child’s residence and where that change is opposed by the other parent (or, again, another interested person). Sometimes the proposed location is in another country, but often an interstate or even intra-state move will be proposed and opposed. In such a case the parent proposing the move may apply to one of the family 218 ibid., [35] citing the judgment of Stevenson J. 219 ibid., [121].

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law courts for permission to do so, or the parent opposing it may seek orders restraining the move. In a case where a parent has taken a child to or from Australia and has acted unilaterally (that is, without the court’s or another parent’s consent), an application under the Convention on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention)220 for the immediate return of the child may arise. As we will see, a judge deciding a relocation dispute has a significant degree of discretion, and there is little consensus in the psychological and other research about what outcomes best serve children’s interests. For these reasons, outcomes of judicially determined relocation disputes are notoriously unpredictable, although unilateral relocation within Australia that is the subject of an application to an Australian court is likely to result in the return of the child on an interim basis so that a court can have before it all the evidence needed to make a decision about the relocation dispute on a final basis. In contrast, applications under the Hague Child Abduction Convention nearly always result in the return of the child to the country from where that child was taken, with the courts of that country then left to determine a relocation dispute if one remains. However, as we will also see, there are exceptions to the rule requiring the return of children under the Hague Child Abduction Convention. It is also not unknown for courts faced with a unilateral domestic relocation to allow that relocation on an interim basis. In  interim domestic relocation cases, the guiding consideration is the ‘best interests of the child’; in Hague Child Abduction Convention applications it is not. While both the FCoA and the FCCoA have jurisdiction to determine relocation matters in Australia and frequently do, the Chief Justice and Chief Judge of those respective courts have published a protocol, which provides that disputes involving an international child abduction or international relocation should ordinarily be commenced in, or transferred to, the FCoA.

9.7.1 Relocation disputes In this section, we begin with some broader context in relation to relocation disputes, before considering the general approach of courts to relocation decision making and in interim relocation cases, followed by a discussion of particular issues that arise in relocation cases.

9.7.1.1 Context In the early years of the FLA, while there was no presumption in favour of relocation, courts fairly readily made decisions allowing a primary caregiver to relocate even long distances with a child. The Full Court in Re: B and B: Family Law Reform Act 1995221 provided an overview of this case law and summarised its effect as follows: Until the 1995 amendments there has been, we think, a consistent line of authority about the approach to cases of this sort. The essential points were that these were 220 Convention on the Civil Aspects of International Child Abduction, concluded 25 October 1980, [1987] ATS 2 (entered into force 1 December 1983 (Australia 1 January 1987)). See Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis, Hart, Oxford, 2013. 221 Re: B and B: Family Law Reform Act 1995 [1997] FamCA 33 (Nicholson CJ, Fogarty and Lindenmayer JJ).

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cases under Part VII which were determined in accordance with the welfare of the children as the paramount consideration. They were discretionary judgments. Against that criterion the trial Judge was required to evaluate the various factors which were specific to the particular case. In approaching that task it was appropriate for the Court to take into account other factors to which the judgments above have made reference, for example, the three matters referred to in Holmes’ case. Secondly, a theme which ran through these cases was the general right to freedom of movement, a right which a person who had the daily care of the child may exercise provided always that that was consistent with the children’s welfare. Where that person was unable to relocate that may result in significant financial or emotional hardship to that parent and often to other members of that household, including the children whose welfare was required to be protected.222

Similarly, in the United Kingdom (UK) until very recently, emphasis on the right to freedom of movement and on not interfering with the reasonable choices of the ‘custodial parent’ remained good law.223 Even today in the UK, restrictions on movement within the country (as opposed to overseas) are only made in exceptional circumstances.224 In contrast, in Australia in more recent times, and particularly since the shared parenting reforms in 2006, obtaining court permission to relocate has become more fraught due to increasing emphasis in legislation, case law and expert evidence on ongoing, significant involvement of both parents in their children’s lives. This is even though, at the same time, more and cheaper travel options and the ready availability of electronic communication such as Skype and FaceTime have arguably reduced (at least to some extent and for some families) the difficulties and costs of maintaining relationships across distance. Reluctance to allow relocation has also been evident despite increased understanding of the gendered dimensions of relocation disputes, recognition of the importance of mobility in an increasingly globalised world, and concern about significant limitations on a person’s freedom to live where they choose to. Also important in this context is the (related) insight that there are significant limitations in the extent to which courts can and should interfere with the decisions that individuals make about their personal lives. Of course, family law courts do this every day by making decisions about whom children should live and spend time with (Chapter 8); they are sometimes asked to make even more specific decisions—for example, about where children go to school (for examples see 9.3), and whether or not they are immunised.225 Relocation decision making as it takes place today, however, arguably involves a higher degree of scrutiny and assessment than any other kind of parenting decision a court has to make.

222 ibid., [7.43] 223 The key case was Payne v Payne [2001] EWCA Civ 166. The decision in K v K (Relocation: Shared Care Arrangement) [2011] EWCA CIV 793 arguably marks a change in approach that will make international relocations more difficult. 224 See Robert George, ‘Re F (Children) (Internal Relocation) [2010] EWCA Civ 1428’, [2011] 1 FLR 1382 (2011) 33 Journal of Social Welfare and Family Law, 169. 225 For example, Duke-Randall & Randall [2014] FamCA 126 (Foster J).

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Indeed, Lisa Young has recently described decision making about relocation (and parenting more generally) as increasingly ‘interventionist’.226 By this she means an approach which: moves away from resolving disputes by choosing between parenting proposals proffered by the parties, and looks more broadly to the wide range of parenting options available.227

This might give rise to both practical and ideological concerns: to what extent can we be confident that a judge, with all the resource and other constraints that apply in litigation, is able to make good decisions in circumstances of this complexity of choice, and to what extent do we believe it is appropriate that parents are told how to live their lives simply because they have separated from their child’s other parent? Young’s argument is that the ‘interventionist approach’ to which she refers, while offering the potential to ‘deliver more equitable treatment of parents’ in fact ‘provides a veneer of neutrality which only serves to obscure further the particular impact relocation decision making has on women.’228 As just noted, the gendered impacts of such decision making have been increasingly noted by researchers. For example, in 2012 Marilyn Freeman and Nicola Taylor offered the following summary: (1) (2) (3) (4)

It is nearly always mothers who apply to a Court to relocate with their children, and fathers who oppose this. If the application is refused, it is nearly always mothers who face a diminution in their freedom of movement and potentially in their economic and social prospects. If the application is granted, it is nearly always fathers who are affected by the impact of geographical distance on their future contact with their children. There is a disparity between the onus on a primary carer (usually a mother) and a non-resident parent (usually a father) to seek permission to relocate. Legal disputes do not normally arise when it is the contact parent who is the one who decides to move away from his children—even though this creates the same distance barriers to contact as when the resident parent seeks to relocate.229

In some cases, relocation disputes will involve a mother who seeks to return to her country of origin. The effects on this group of not being able to relocate were conveyed in Marilyn Freeman’s qualitative research in the UK, in which two-thirds of the 32 mothers interviewed were seeking to ‘go home’: Mothers in countries which are not their homes, where they do not have family around them, and, at times, cannot work or access state support, want to go home when their relationships with the fathers of their children break down. They feel aggrieved at ‘being imprisoned’ often for sporadic contact with fathers, but also at shared care arrangements awarded post separation when these had not existed before.230 226 Lisa Young, ‘Resolving Relocation Disputes: The ‘Interventionist’ Approach in Australia’ (2011) 23 Child and Family Law Quarterly 203. 227 ibid., 205. 228 ibid., 206. 229 Marilyn Freeman and Nicola Taylor, ‘The Gender Agenda and Relocation Disputes’ (2012) International Family Law 184, 186. 230 Marilyn Freeman, ‘International Family Mobility: Relocation and Abduction: Links and Lessons’ (2013) International Family Law 41, 43.

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As these examples begin to illustrate, there is a growing body of research into relocation decision making in Australia and elsewhere. In summary, while the research has developed our understanding of the complexity of relocation disputes, it does not provide clear answers to the many questions they give rise to.231 Recent Australian empirical research involving interviews with parents and children involved in relocation disputes has certainly added to the relevant body of knowledge, but provides no ready answers,232 and similar observations apply to the research conducted in other jurisdictions. Rob George, for example, has carried out comparative empirical research into relocation disputes and the way they are dealt with in by English and New Zealand courts.233 He identifies fascinating differences in the ways that English as compared with New Zealand participants (judges, barristers, solicitors, and child welfare experts) assess the factors that are important in relocation decision making, despite the fact that the ‘two countries share many background features’ and ‘both base decisions about relocation on the welfare principle’.234 This was evident in participants’ approaches to a hypothetical relocation scenario: The English participants … focused on the importance of the mother’s well-being, and of the stability of her new relationship, to [the child’s] overall welfare, and thought that the relationship with the father could be adequately preserved through careful on-going contact arrangements after relocation. The New Zealanders, by contrast, questioned the motivation for the relocation and rejected the suggestion that refusing permission to move would have any serious consequences for the family; the mother’s attitude to contact was seen as a crucial factor pointing against the relocation.235

George concludes: ‘These findings demonstrate vividly that answers based on the welfare principle are capable of producing hugely varied results, depending on who is asked the question.’236

9.7.1.2 General approach to relocation decision making Despite ongoing discussion as to whether there should be a specific legislative approach to relocation disputes,237 there remain no specific provisions in the FLA dealing with such disputes, which fall to be determined under the general provisions that apply to the making 231 See Mark Henaghan, ‘Relocation Cases—The Rhetoric and the Reality of a Child’s Best Interests—A View from the Bottom of the World’ (2011) 23 Child and Family Law Quarterly 226, 235–8. 232 See Juliet Behrens and Bruce Smyth, ‘Australian Family Law Court Decision on Relocation: Parents’ Experiences and Some Implications for Law and Police’ (2010) 38 Federal Law Review 1; Juliet Behrens, Bruce Smyth and Rae Kaspiew, ‘Australian Family Law Court Decisions on Relocation: Dynamics in Parents’ Relationships across Time’ (2009) 23 Australian Journal of Family Law 22; Patrick Parkinson, Judy Cashmore and Judi Single, ‘Mothers Wishing to Relocate with Children: Actual and Perceived Reasons’ (2011) 27 Canadian Journal of Family Law 11; Patrick Parkinson, Judy Cashmore and Judi Single, ‘The Need for Reality Testing in Relocation Cases’ (2010) 44 Family Law Quarterly 1; Patrick Parkinson and Judy Cashmore, ‘When Mothers Stay: Adjusting to Loss after Relocation Disputes’ (2013) 47 Family Law Quarterly 65. 233 Robert George, Relocation Disputes: Law and Practice in England and New Zealand, Hart Publishing, Oxford,  2014. 234 Robert George, Ideas and Debates in Family Law, Hart Publishing, Oxford, 2012, p 121. 235 ibid., p 125. 236 ibid. 237 Family Law Council, Relocation: A Report to the Attorney-General Prepared by the Family Law Council, AttorneyGeneral’s Department, Canberra, 2006.

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of parenting orders.238 Thus, the legislative pathway that we outlined in Chapter 8 applies to relocation disputes as it does to other parenting disputes.239 There is one general principle that receives some emphasis in relocation disputes but is rarely referred to in other parenting disputes. This is that the best interests of the child remain the paramount, but not sole, consideration.240 Thus, parents’ rights to freedom of movement under section 92 of the Australian Constitution and international law are also relevant. These rights must, however, give way to children’s best interests where they are inconsistent.241 Decision making on relocation disputes is therefore discretionary, and there is no presumption either for or against relocation. Case law since the 2006 amendments has confirmed that this remains the law. For example, in M and S,242 Dessau J said: Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.243

It is also clear that a court cannot require a person who wishes to relocate to demonstrate ‘compelling reasons’ for the relocation before they will be allowed to do so.244 Further, a court must examine the proposals of the parties, but is not bound by those proposals: it should consider the possibility that the non-resident parent could relocate as well.245 Nonetheless, the requirement in the 2006 shared parenting reforms, if an order for equal shared parental responsibility is to be made, to consider whether ‘equal time’ or ‘substantial and significant time’ is in the best interests of children and reasonably practicable is likely make a decision allowing relocation less likely. A relocation of any significant distance in circumstances where the evidence is that the other parent will not relocate themselves will clearly make either of these parenting patterns difficult, if not impossible. Having said this, ‘substantial and significant time’ may still be possible across considerable distance. This is particularly the case if the parent remaining in the old location is willing and able to travel to the new location on a regular basis to spend time with the child there. 238 See also Susan Boyd, ‘Relocation, Indeterminacy and Burden of Proof: Lessons from Canada’ (2011) 23 Child and Family Law Quarterly 155. 239 A v A: Relocation Approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ). 240 AMS v AIF [1999] HCA 26; 199 CLR 160; U v U [2002] HCA 36; 211 CLR 238, [159] (Kirby P). See also A v A: Relocation Approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ). 241 Re: B and B: Family Law Reform Act 1995 [1997] FamCA 33, [9.65] (Nicholson CJ, Fogarty and Lindenmayer JJ); A v A: Relocation Approach [2000] FamCA 751, [93] (Nicholson CJ, Ellis and Coleman JJ). 242 M and S [2006] FamCA 1408 (Dessau J). 243 ibid., [39] (Dessau J). 244 AMS v AIF [1999] HCA 26; (1999) 199 CLR 160. 245 U v U [2002] HCA 36; (2002) 211 CLR 238.

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Even if a court is not inclined to make an order for equal shared parental responsibility, or to make an order for equal time or substantial and significant time, it will still be concerned about the impact of the relocation proposal on one of the primary considerations in section 60CC, namely the benefit to the child of having a meaningful relationship with both of their parents (section 60CC(2)(a)). It will also be influenced by one of the stated objects in section 60B, namely ‘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’ (section 60B(1)(a)). In the first edition of this book, published soon after the 2006 amendments, we suggested that a court might take an approach that involved considering the relocation proposal first, concluding relocation was in a child’s best interests, with the consequence that equal time (and possibly substantial and significant time) was then not practicable. This is not the approach that has been taken in the case law. In the Full Court case of Taylor & Barker,246 Bryant CJ and Finn J held that relocation should not be considered as a separate and discrete issue, but should ‘continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant section 60CC matters.’247 Chief Justice Bryant and Finn J also observed that the legislation provides no guidance as to when the court should consider the relocation proposal.248 They went on to indicate that: the options of the child spending ‘equal time’ or ‘substantial and significant time’ with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an ‘equal time’ or ‘substantial and significant time’ arrangement.249

In McCall & Clark,250 the Full Court (Bryant CJ, Faulks DCJ, Boland J) affirmed that there remains no presumption in favour of or against relocation, but confirmed that if equal shared parental responsibility has been awarded in a case involving an application for relocation, the court must still consider making orders for equal or substantial and significant time.251 In relation to the impact of relocation on the benefit to the child of a meaningful relationship, the comment of Kay J (sitting as a single judge on appeal from a decision of a federal magistrate) in Godfrey & Sanders252 is often quoted: The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of 246 Taylor & Barker [2007] FamCA 1246 (Bryant CJ, Faulks DCJ and Finn J). 247 ibid., [60] (Bryant CJ and Finn J; Faulks DCJ dissenting). See also Sealey v Archer [2008] FamCAFC 142, [63] (Bryant CJ, Finn and Thackray JJ). 248 Taylor & Barker [2007] FamCA 1246, [61]–[62] (Bryant CJ and Finn J; Faulks DCJ dissenting). 249 ibid., [83] (Bryant CJ and Finn J; Faulks DCJ dissenting). 250 McCall & Clark [2009] FamCAFC 92 (Bryant CJ, Faulks DCJ, Boland J). 251 ibid., [69] (Bryant CJ, Faulks DCJ, Boland J). 252 Godfrey & Sanders [2007] FamCA 102 (Kay J).

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the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case … It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.253

The observations of Kay J were referred to by the Full Court in McCall & Clark254 and similar observations were made by the Full Court (Thackray, O’Ryan and Benjamin JJ) in Champness & Hanson:255 The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2) (a) directs the Court to consider ‘the benefit to the child’ of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.256

9.7.1.3 General approach in interim relocation cases Courts are sometimes asked to make interim relocation decisions. This may occur where one parent has relocated without the permission of the other parent or a court and is now seeking to stay in the new location until a final decision can be made, or in a context where the party seeks to relocate before a final decision can be made. The general principles outlined in Chapter 8 in relation to interim decision making also apply to interim relocation determinations. One case that is frequently relied on and referred to in interim relocation applications is the decision of Boland J sitting as a single judge on appeal from a decision of Federal Magistrate Brewster (as he then was) in Morgan and Miles.257 The mother who appealed in this case had unilaterally moved with the children approximately 140 km away from the small town where she, the father and the children had previously lived following the father instituting legal proceedings to restrain such a move. Federal Magistrate Brewster ordered her return. The mother appealed and her appeal was dismissed. In commenting on the approach that should be taken to interim relocation decisions, Boland J said: I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an ‘unauthorised’ relocation has occurred. 253 254 255 256 257

ibid., [33], [36] (Kay J). McCall & Clark [2009] FamCAFC 92, [116] (Bryant CJ, Faulks DCJ, and Boland J). Champness & Hanson [2009] FamCAFC 96 (Thackray, O’Ryan and Benjamin JJ). ibid., [103] (Thackray, O’Ryan and Benjamin JJ) (emphasis in original). Morgan & Miles [2007] FamCA 1230 (Boland J).

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As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases. [citations omitted]258

This approach makes it difficult to obtain an interim order allowing relocation, unless there are circumstances that might be regarded as an ‘emergency’. These might include a unique offer of employment (particularly in circumstances where the parent pursuing it has no alternative employment), escape from violence, or a parent’s inability to remain in Australia due (for example) to a lack of a visa.259 The cases discussed in the next section provide some examples of these factors in operation. Practices between registries differ, but an alternative to seeking an interim hearing and determination is to seek that the matter be set down for an expedited final hearing. At   various times, some registries have had special ‘relocation lists’ in which relocation matters receive particular (and sometimes more timely) attention. For example, the Melbourne Registry of the FCCoA currently has a relocation list.

9.7.1.4 Particular issues in relocation cases In this section we discuss some particular issues that arise in relocation cases, including the framing of primary carer’s proposals, violence, and the relevance of the distance of the proposed move. A further matter taken into account by courts in determining whether or not relocation is in a child’s best interests but not considered further here is the presence of extended family and emotional support to the relocating parent. Courts have recognised that this may have important benefits in supporting the parenting capacity of the primary carer and to the child directly, especially when a child is very young with high dependency needs. This has been influential in a number of cases where the mother’s isolation has led to depression and impaired parenting capacity.260 Yet another factor that may have an impact in a case is the level of support that the parent opposing the relocation is able to provide to the children and, if necessary, the other parent. 258 ibid., [86]–[88] (Boland J). 259 See, e.g., Papageorgio & Nicolau [2014] FamCA 31 (Rees J). 260 See, e.g., MRR v GR [2010] HCA 4; (2010) 240 CLR 461 (Chapter 7); Rose & Baudin [2012] FamCAFC 171 (Coleman, Ainslie-Wallace and Austin JJ); Sheldon & Weir [2011] FamCAFC 212 (Coleman, May and Loughnan JJ).

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9.7.1.4.1  Framing of the primary carer’s proposals A parent who is asking the court to allow her to relocate with the child will need to give evidence about what she will do if not allowed to do so. Strategically, this is likely to place her in a difficult position. As Lisa Young points out, if her ‘alternate proposal’ is that if the court will not allow her to relocate, she will remain and continue to provide primary care for the child, this ‘immediately presents the court with a neat solution and appears to make the mother’s case for leaving less strong’.261 In contrast, if the court has to choose between allowing the mother to take the children, and changing a long-standing care arrangement, it may well prefer the former. However, as Young further observes, ‘there is a danger for a mother in saying, under cross examination, that if unsuccessful, she would leave anyway without the child—such words might be taken to indicate a lack of commitment to parenting. Indeed, the simple prospect of losing the case and care being moved to the other parent would be enough to scare many mothers off taking such a strategic position’.262 In any case the mother’s evidence must be truthful and so the decision is not strictly a strategic one. Orders preventing relocation are not generally framed in such a way as to explicitly restrict a parent themselves from relocating or to require a parent themselves to relocate. In Sampson & Hartnett (No 10),263 the Full Court, while upholding an appeal from a decision of Moore J that compelled the mother to relocate back to Sydney from Geelong, found that the Court did have power to make such an order using its injunctive powers but should do so ‘no more than is strictly necessary to secure the best interests of the child’.264 This appears to be the first case where this power was recognised.265 Young uses this as an example of the new ‘interventionist approach’.266

9.7.1.4.2  Family violence Further issues surround the relevance of family violence to relocation. As the Australian Law Reform Commission’s 2010 Family Violence report (Chapter 5) observed, ‘[r]elocation may be of particular significance in cases involving family violence as the victim may wish to relocate in order to escape from the violence’.267 Consistent with this, in Behrens, Smyth and Kaspiew’s study of litigated relocation disputes, mentioned earlier, approximately 80 per cent of the relationships in the sample ‘could, on the basis of the information in the judgment, be characterised as high-conflict or abusive, with allegations of violence being raised in nearly 70 per cent of cases’.268 261 Young, above n 226, p 210. 262 ibid. 263 Sampson & Hartnett (No 10) [2007] FamCA 1365 (Bryant CJ, Kay and Warnick JJ). 264 ibid., [58] (Bryant CJ and Warnick JJ). 265 For commentary on this case see Richard Chisholm, ‘To What Extent Can the Court Make Orders That Inhibit a Parent’s Right to Relocate?’(2008) 22 Australian Journal of Family Law 154; Young, above n 226. 266 Young, above n 226. 267 Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, Final Report, Australian Law Reform Commission and NSW Law Reform Commission, Sydney, 2010, [15.29]. 268 Rae Kaspiew, Juliet Behrens and Bruce Smyth, ‘Relocation Disputes in Separated Families Prior to the 2006 Reforms’ (2011) 86 Family Matters 72, 73.

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However, the impact of violence in relocation disputes extends beyond the most obvious case of a person applying to relocate to escape from violence. In some cases a perpetrator of violence may be using the court system in an attempt to maintain the control exerted during the relationship using family violence. A parent who has escaped a violent relationship may need access to resources and support, a factor that has been acknowledged in some decisions. For example, Richards & Parsons269 involved a mother’s appeal from orders of Federal Magistrate Brewster (as he then was) restraining her from relocating from Canberra to Brisbane. The Full Court (Finn, Coleman and Strickland JJ) overturned the orders (and remitted the matter for retrial) on the basis of the undesirable circumstances in which the mother had been placed as a result of the orders, including closer proximity to the father who had been extremely violent to her during their relationship: [T]he mother had been in Brisbane for a period of some months before the father commenced proceedings; the extreme violence which had characterised their relationship and which would always be likely to cast a shadow over any future dealings between them; the relative certainty of her housing arrangements in Brisbane compared to the uncertainty of such arrangements in the Canberra area; and the father’s lack of commitment to his child support obligations.270

The Full Court held that, in failing to have sufficient regard to the above matters and in finding that these matters were outweighed by the need for ‘the child to develop and maintain an optimal relationship with the father’, the decision was ‘plainly wrong’ and required intervention.271 Nonetheless, anecdotal evidence suggests that it can be more difficult to obtain an order allowing relocation where the parent who seeks to relocate is making allegations of family violence and/or abuse, particularly where it is not her case that her and the children’s immediate physical safety depends on that relocation. This is because of the court’s concern about the mother’s willingness and ability to facilitate a relationship between the children and the father across distance. It is possible that the 2012 amendments, by removing from the additional considerations previous reference to a parent’s willingness and ability to facilitate and encourage a close and continuing relationship with the other parent, and by prioritising the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2A); Chapters 5 and 8), will make some difference in this area, although it is not yet clear whether or not that is the case. Certainly there are a number of recent examples of trial decisions restraining relocation in circumstances where there were findings of family violence, and where a decision was made not to order equal shared parental responsibility,272 but as noted earlier (8.2) very few decisions have been in relation to proceedings instituted after the commencement of the 2012 amendments on 7 June 2012. An early example is McAllister & Day,273 in which the  mother had unilaterally relocated from Queensland to South Australia, taking with 269 270 271 272 273

Richards & Parsons [2013] FamCAFC 74 (Finn, Coleman and Strickland JJ). ibid., [48]. ibid., [48]. See, e.g., Harris & Duerr [2014] FamCA 127 (Forrest J) and Johnson and Knight [2014] FamCA 107 (Bells J). McAllister & Day [2012] FMCAfam 863 (Brown FM). See further Strickland and Murray, above n 17.

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her the parties’ two-year-old child. The mother’s position was that she sought to escape the father’s violence and that living with family members in South Australia provided the security she needed. Her allegations included that he had threatened to disfigure her with a knife if she left him, and that on another occasion when she tried to leave him he ‘picked up a garden shovel, which he waved in the air whilst screaming “you’d better take this with you and start digging your own hole.”’274 Federal Magistrate Brown made interim orders ordering that the mother return the child to Queensland and that the child live with the mother, along with an injunction restraining the father, concluding that while the case was finely balanced, the risk of the mother being exposed to family violence could be dealt with in this way, especially given the conditions attached to the father’s parole (following his release from prison, having been convicted of cultivating and possessing cannabis). The interim nature of the proceedings and the mother’s lack of corroborative evidence were also relevant factors in this case, making it impossible to draw any general conclusion one way or the other about the impact of the amendments, although their impact on Brown FM’s approach to relocation cases appeared to be limited: ‘In my view, the recent amendments do not more easily authorise the unilateral relocation of children extreme distances away from the other parent concerned, in the situations of crisis, which often surround the breakdown of intimate relationships’.275

9.7.1.4.3  Distance of the proposed move While it might be thought that the distance of the proposed move would be a critical factor in the outcome, the case law makes it clear that the distance involved in the relocation is only one factor to be considered. Further, empirical analyses of the case law show no clear link between distance and outcome.276 In Morgan and Miles,277 (9.7.1.3) Boland J (sitting as a single judge on appeal) commented: it is not distance per se which should be the determinative [criterion]. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.278

The judgment of the Full Court in Cales & Cales279 (May, Boland and Cronin JJ) also underlines the importance of considering the full range of circumstances, rather than just 274 McAllister & Day [2012] FMCAfam 863, [109] (Brown FM). 275 ibid., [124]. 276 See Patricia Easteal, Juliet Behrens and Lisa Young, ‘Relocation Decision in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law 234, 241–2. 277 Morgan & Miles [2007] FamCA 1230 (Boland J). 278 ibid., [91]. 279 Cales & Cales [2010] FamCAFC 237 (May, Boland and Cronin JJ).

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the distance. In Cales, a mother appealed against parenting orders, including an order that restrained her from moving to the Hunter Valley or anywhere outside a 30 km radius of the Sydney GPO. The Full Court confirmed that the court has the power to make an order restraining the removal of children from a particular location, but found the trial judge, Cohen J, had erred in not properly considering the practical and economic aspects of the move and whether a meaningful relationship could be maintained between the father and the children if the children resided in the Hunter Valley. By contrast, in Adamson & Adamson280 the Full Court (Ainslie-Wallace J) rejected an appeal from the mother, against orders made by Scarlett J restraining her from moving outside the Sydney metropolitan area to the country, approximately three hours away from the father’s place of residence. The mother sought to relocate in order to be closer to her parents and because of difficulty meeting existing financial responsibilities including considerable mortgage payments. The Full Court upheld the finding that the distance involved would affect current parenting arrangements (where the father had overnight and weekly contact with the children) and that this was not in the children’s best interests.281 These cases illustrate our earlier point that outcomes are difficult to predict. International relocations are ‘exquisitely difficult’,282 especially in circumstances where a child enjoys a close and loving relationship with both parents. In Hunt & Planey,283 the Full Court (Ainslie-Wallace, Murphy and Le Poer Trench JJ) dismissed an appeal by the father against orders allowing the mother (who was originally from the US) to relocate to the US with the parties’ four-year-old daughter. At trial, Johnston J had accepted clinical evidence that the mother had been diagnosed with an adjustment disorder with depression and traumatic stress; that the mother felt lonely and isolated in Australia; that she had few friendships in Australia; that she had family and friends in the US; and the mother has been unable to obtain employment in Australia. The mother was the child’s primary carer and there was no dispute that the child did and would continue to live with the mother. The Court accepted that overseas relocation would mean that ‘the child’s meaningful relationship with her father would be diluted and her security of attachment to him, which depended upon regular interactions, would be weakened’.284 However, the Full Court stated that the mother’s mental health and its effect on the best interests of the child was the central issue during the trial.285 The Court upheld the trial judge’s finding that the mother’s ‘very serious mental health condition’ would continue if she were to remain in Australia and that it was not in the child’s best interests to live in the primary care of her mother, who would not be able to fully function as a parent in Australia.286

9.7.1.5 Recent international developments Decision making in relocation disputes presents significant challenges and legal systems in many countries are grappling with the tension between the benefits of predictability 280 Adamson & Adamson [2013] FamCAFC 157 (Ainslie-Wallace J). 281 [2013] FamCAFC 157. 282 Hunt & Planey [2013] FamCAFC 160, [8] (Ainslie-Wallace, Murphy & Le Poer Trench JJ. 283 ibid. 284 ibid., [8]. 285 ibid., [11]. 286 ibid., [12].

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and those of a highly individualised approach.287 There have been various recent attempts to suggest approaches that may have more predictable and consistent results. There have also been various international developments that are designed to facilitate cooperation between countries to promote good decision making. In March 2010 a group of judges and other experts from various countries, including Australia met in Washington DC to discuss cross-border family relocation and developed the Washington Declaration on International Family Relocation.288 This Declaration recommends against presumptions for or against relocation, and emphasises that ‘in all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration’. It nonetheless recognises the benefits of ‘a more uniform approach internationally’, and recommends a series of factors to be taken into account in the exercise of judicial discretion. These are similar to many of the factors in FLA section 60CC. However, it is of interest that the factors include ‘where relevant to the determination of outcome, the reasons for seeking or opposing the relocation’. They also place perhaps more emphasis on past arrangements than the Australian case law does. Included in the list is ‘issues of mobility for family members’. It is not clear whether this is intended to draw attention to freedom of movement and/or whether it extends to consideration of whether a parent seeking to restrain the move could also relocate. In 2013, Canadian family law academic Nicholas Bala suggested the development of international relocation guidelines including a presumption against relocation if: • a child spends roughly equal time in the care of each parent (that is, at least 40 per cent); • a parent has unilaterally relocated; • a child has expressed a clear and consistent wish not to leave; • a parent seeking relocation has made ‘clearly unfounded’ allegations of child abuse; or • an existing order or separation agreement precluded relocation. Conversely Bala suggests a presumption in favour of relocation if: • a parent opposing relocation does not have an established and significant relationship with the child; • a child expresses a clear and consistent wish in favour of relocation; or • a parent opposing relocation has perpetrated acts of child abuse.289 Although an interesting proposal that seeks to clarify decision making in relocation cases, it is noteworthy that Bala’s lists do not include many of the key features discussed 287 See Susan Boyd, ‘Relocation, Indeterminacy and Burden of Proof: Lessons from Canada’ (2011) 23 Child and Family Law Quarterly 155; Nicholas Bala and A Wheeler, ‘Canadian Relocation Cases: Heading towards Guidelines’ (2012) 30 Canadian Family Law Quarterly 271; Patrick Parkinson, Judith Cashmore and Judi P Single, ‘The Need for Reality Testing in Relocation Cases’ (2010) 44 Family Law Quarterly 1; Robert George, above n 233. 288 Available at . 289 Nicholas Bala, ‘Moving Closer to International Relocation Advisory Guidelines’ (2013) International Journal of Family Law 47.

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above, such as whether the move is ‘back home’, the presence of financial and emotional support, the role of violence directed at a parent and the issue of the practicability of maintaining contact over longer distances. In Australia, Patrick Parkinson and Judy Cashmore290 have developed a series of highlevel ‘Principles for the development of relocation policy’ along with ‘Three fundamental questions’. Their principles recommend against presumptions, caution ‘about special provisions on relocation’, and proceed on the basis that ‘good faith should be irrelevant to decision-making’. Similar to the Washington Declaration, Parkinson and Cashmore recommend that the law in Australia in relation to reasons for moving should be reconsidered. Their argument is that: The reasons for moving matter. In particular, it is legitimate for courts to examine how well thought through are the plans to move, and whether the suggested advantages of such a move will actually materialize.291

They further argue that ‘relocation cases are best determined by reference to a series of questions, rather than by reference to presumptions or bright lines’ and that the three fundamental questions that should be explored are: 1. How close is the relationship between the non-resident parent and the child and how important is that relationship developmentally to the child? 2. If the relocation is to be permitted, how viable are the proposals for contact with the non-resident parent? 3. If the relationship between the child and the non-resident parent is developmentally important to the child and is likely to be diminished if the move is allowed: a. What are the viable alternatives to the parents living a long distance apart? b. Is a move with the primary caregiver the least detrimental alternative? The focus on the quality of the relationship between the child and the non-resident parent in this set of questions is, in our view, welcome. Importantly, as Parkinson and Cashmore note, ‘Even if one assumes that the father–child relationship has the potential to be of great importance developmentally to the child, that does not necessarily mean that in the circumstances of the case before the court, the father has the capacity or willingness to fulfil that potential’.292 On the other hand, the third question seems to emphasise an optimal relationship, over a meaningful relationship, and this does not give sufficient attention, in our view, to the insights from the case law outlined at the beginning of this section. An instance of positive international cooperation of relevance to relocation relates to the ability to register and enforce parenting orders made in one country in another. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of 290 Patrick Parkinson and Judy Cashmore, ‘Reforming Relocation Law—An Evidence-Based Approach’, forthcoming, (2014) Family Court Review. 291 ibid. 292 ibid.

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Children (Hague Child Protection Convention;293 see also Chapter 3), while concluded in 1996, only entered into force in 2002 (see also Chapter 3). It is only recently that significant numbers of states have become parties to the Convention (the Convention has been in force in Australia since 2003 and the UK since 2012, but is not in force, for example, in the US and NZ). The Hague Child Protection Convention creates a mechanism for the registration and enforcement of overseas parenting orders. This is particularly important in a case in which a court makes an order allowing relocation to another country which is party to the Convention and making orders for the non-relocating parent to spend time with the child. Recently in Cape & Cape,294 the Full Court (Finn, Thackray and Aldridge JJ) had its first opportunity to consider the Hague Child Protection Convention in the context of a father’s appeal from a trial judge’s decision not to stay a decision allowing relocation of the mother to Germany pending an appeal by the father. The Full Court made an order permitting the mother to relocate with the child to Germany pending the outcome of the father’s appeal once she had served on the father and the independent children’s lawyer proof that she had obtained recognition of the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany and the Family Court of Western Australia (pursuant to Article 24 of the Hague Child Protection Convention); or that she has obtained a declaration of enforceability from a court of competent jurisdiction in Germany of the relocation orders and the orders of the Full Court (pursuant to Article 26 of the Hague Child Protection Convention); or that she had registered the relocation orders and the orders of the Full Court in a court of competent jurisdiction in Germany (pursuant to Article 26 of the Hague Child Protection Convention). Experience with the Hague Child Protection Convention is somewhat limited, and anecdotal evidence suggests there have been some difficulties in its prompt and effective use in other countries.

9.7.1.6 Concluding remarks in relation to relocation Judicial decision making in relocation disputes is unpredictable, and is likely to remain so. The trend in international thinking is clearly against legislative presumptions or rules that would be likely to increase predictability. Even if there were such presumptions there would remain plenty of room for argument in legal disputes (does the presumption apply? should it be rebutted?) and those opportunities are likely to be taken in many cases given the usual high stakes involved. Lists of factors to consider and questions to ask would do little to provide more certainty. Empirical evidence seems to give rise to more questions, rather than settling them. Ultimately, as NZ family law academic Mark Heneghan has written, ‘What is at stake in relocation disputes is the allocation of power, and how issues are framed is crucial to how that power will be distributed’.295 Our analysis suggests that, in Australia, mothers who seek to relocate with their children are in an invidious position. In practical terms, they need to present themselves as 293 Concluded 19 October 1966, entered into force 1 January 2002 (Australia 1  August 2003), . 294 Cape & Cape [2013] FamCAFC 114 (Bryant CJ, Thackray and Walters JJ). 295 Henaghan, above n 231, p 249.

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parents who are compromised in some way: lonely, isolated, depressed, homesick, in need of support from family or friends in the place to which they want to move, or struggling financially with unaffordable housing or having no employment unless they move. Indeed, if a mother applying to relocate with the children presented herself as coping well where she was, it is doubtful that a court would make orders that she could relocate. It would appear that, particularly following the 2006 amendments, it has become harder to get a court decision allowing relocation than it was previously, at least in the first instance. This represents a power shift away from the parent who is providing the majority of the care of a child. Such a shift is of course justified if it promotes the best interests of the child. There is no particular reason to be confident, however, that it does. Different kinds of trends have been identified, including towards the courts taking a more interventionist approach in particular by exploring a wide range of possible outcomes. This trend implies a shift in power away from the parties and to the courts. In the current family law decision making context this is likely, as Young would argue, to have an impact more negatively on women than on men.

9.7.2 International child abduction: The Hague Child Abduction Convention A relocation dispute may follow an application for the return of a child under the Hague Child Abduction Convention.296 As we outline below, the Hague Child Abduction Convention operates on the basis that it is in the general best interests of children for them to be returned to their place of habitual residence if they have been unlawfully abducted, and for the court in that place of habitual residence to determine any application as to where they should live. Where a parent has acted unilaterally to take a child either to or from Australia, or to keep a child in or outside Australia, an application may be made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (the Regulations), which have been made under the FLA (section 111C) to implement the Hague Child Abduction Convention, if the other country involved is also a party to the Hague Child Abduction Convention. The Hague Child Abduction Convention has a much longer history than the Child Protection Convention, having been concluded in 1980 and entering into force in 1983. There is now a long history of its application in Australian courts. As we explain below, the Hague Child Abduction Convention and the institutional framework that underlies it provide a readily accessible response for parents whose children have been taken out of the country where they were previously living. This response is not available if the child has been abducted to or from a country that is not a Hague Child Abduction Convention country. There is an updated list of Hague Child Abduction Convention countries on the website of the Attorney-General’s Department.297 A number of Australia’s near neighbours, and a number of countries from where large numbers of immigrants come, are not parties to the Hague Child Abduction Convention. In cases 296 Hague Child Abduction Convention, above, n 220. See Schuz, above n 220. 297 Attorney-General’s Department, Australian Government, International Child Abduction and Child Access,.

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of abductions to non-Hague Child Abduction Convention countries, Australian parents are likely to face very considerable difficulties securing the return of children, which may involve seeking legal advice in the country to which the child has been abducted. Australia does have bilateral agreements that will facilitate resolution with Egypt and Lebanon (countries that are not parties to the Hague Child Abduction Convention). If a child has been abducted to Australia from a non-Hague Child Abduction Convention country and an application for parenting orders is made in Australia, a court will need to determine whether or not it will exercise jurisdiction here, or refuse to do so on the basis that the matter is properly determined in the country of origin. The key case is the High Court of Australia (HCoA) decision in ZP v PS,298 in which the Court determined that the ‘clearly inappropriate forum’ test for the exercise of jurisdiction is not applicable to a ‘custody case’ where a child is within the jurisdiction. Rather, the decision about whether or not to exercise jurisdiction should depend on an assessment of the welfare of the child.

9.7.2.1 Outline of the Hague Child Abduction Convention The Hague Child Abduction Convention is intended to provide for the return of children under the age of 16 years299 who have been wrongfully removed from, or retained outside, their country of habitual residence. The Hague Child Abduction Convention is intended to ensure that disputes about parenting orders in relation to such children can be resolved in the country of habitual residence of the child, with respect for the laws of that state.300 There are administrative and institutional arrangements in place in Hague Child Abduction Convention countries that enable a parent to apply to the Central Authority in their own country, which will then take responsibility for forwarding that application to the Central Authority in the country to which the child has been abducted. The Central Authority then acts on behalf of the parent. In Australia, the International Family Law Section of the federal Attorney-General’s Department performs the functions of the Central Authority under the Hague Child Abduction Convention (and also the 1996 Hague Child Protection Convention: 9.7.1.5). These arrangements are provided for in Articles 6–10 of the Hague Child Abduction Convention and implemented by the Regulations. Thus, substantive Hague Child Abduction Convention provisions requiring the prompt return of a child are supported by equally important procedural mechanisms that facilitate the use of those provisions. An Australian parent does not incur any costs for the Australian Central Authority to undertake work on their behalf in Australia, although many people will choose to engage a private lawyer to assist in the preparation of the necessary documentation: ‘The effectiveness of the Convention’s operation in an individual country will very much depend on the resources that the individual contracting state has provided to its Central Authority, the availability of legal advice and the jurisdiction and methods of the courts to deal with these matters quickly’.301 298 ZP v PS [1994] HCA 29; (1994) 181 CLR 639. 299 Hague Child Abduction Convention, above n 296, Article 4. 300 LK v Director-General, Department of Community Services [2008] HCA 12. See Richard Chisholm ‘The High Court Rules on Habitual Residence’ (2009) 23 Australian Journal of Family Law 71. 301 Alexandra Harland, ‘All Hague Convention Countries Are Not Created Equal’ (2010) 1 Fam L Rev 101, 102.

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The effect of the Hague Child Abduction Convention and the Regulations were described by Jordan J in Emmett and Perry:302 The Family Law (Child Abduction Convention) Regulations impose upon the court a primary obligation to promptly return children wrongfully removed or retained. Matters coming before this court are not to be treated as competing claims for interim custody. Proceedings under the regulations are to be heard in a prompt and summary way and it is only in exceptional circumstances that a court would give consideration to refusing the application of the Central Authority for the return of the children. Regulation 16 does vest in the court a discretion to refuse to return children if certain conditions are established. The onus of establishing those preconditions rests upon the party resisting the order for return of the children and that onus must necessarily be a heavy one.303

The Hague Child Abduction Convention operates on the basis of deterring abduction and ensuring prompt return to the country of habitual residence, rather than on the basis of the best interests of particular children. So, Article 19 provides: ‘A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue’.304 This approach encourages predictability and certainty of outcome in Hague Child Abduction Convention cases, which is in sharp contrast to other parenting matters. Having said this, with the exception of the recent high profile decision concerning the four Italian girls to which we refer further below,305 appeals to the High Court concerning Hague Child Abduction Convention decisions have been generally successful, and it has arguably taken a more liberal view over time than the Family Court of the scope of the exceptions.306 In 2010, Kirby J in extra-judicial writing noted that: not a single case which has come before the High Court of Australia in more than a decade, has the order of that court affirmed the order of the Family Court of Australia, the specialised federal court dealing with cases under the Convention. Decisions of the Family Court, ordering the return of the child to the country designated, have been uniformly reversed with consequential orders requiring either reconsideration of the case by the Family Court or actual dismissal of the application for a return order.307

The notion of Hague Child Abduction Convention applications involving a ‘summary process’ has also been qualified over time. In MW v Director-General, Department of

302 Between: Darryl Emmett Husband and: Penelope Anne Perry Wife And: Director-General Department of Family Services and Aboriginal and Islander Affairs Central Authority And: Attorney-General of the Commonwealth of Australia Intervener [1995] FamCA 77 ( Jordan J). 303 ibid., [10] ( Jordan J). 304 Hague Child Abduction Convention, above n 296. 305 Department of Communities, Child Safety and Disability Services & Garning (Discharge Application) [2012] FamCA 839 (Forrest J). 306 De L v Director-General Department of Community Services (NSW) [1996] HCA 9; DP v Cth Central Authority;JLM v Director-General NSW Department of Community Services [2001] HCA 39; MW v DirectorGeneral, Department of Community Services [2008] HCA 12; LK v Director-General, Department of Community Services [2008] HCA 12. 307 Michael Kirby, ‘Children Caught in Conflict: The Child Abduction Convention and Australia’ (2010) 21 Australian Family Lawyer 2, 6.

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Community Services308 Gummow, Heydon and Crennan JJ cautioned against prompt but inadequate disposition of return applications. They found that the focus on a ‘summary process’ is ‘apt to mislead’ since ‘prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another.’309 In the 2011 case of Zotkiewicz & Commissioner of Police (No 2),310 the Full Court (May, Thackray and Moncrieff JJ) acknowledged that: the High Court has now made clear on a number of occasions that it should not be assumed that all applications under the convention will be dealt with ‘on the papers’. The potential consequences of a return order are serious for both the child and the parent who removed the child (commonly the primary carer). It is therefore important that applications are determined by a principled adjudication of factual differences, rather than by glossing over differences, or determining the dispute by reference to less controversial matters.311

9.7.2.2 Application of the Hague Child Abduction Convention: Key elements The Hague Child Abduction Convention and the Regulations that implement it in Australia require the following key requirements to be met if an order is to be made for the return of a child: 1. There has been a ‘wrongful removal or retention of a child’ (Article 3). 2. The child was ‘habitually resident’ in a Contracting State immediately before the wrongful removal or retention (Article 4). 3. The child must be under the age of 16 years (Article 4). Exceptions to the requirement to return the child operate where the following circumstances are satisfied: 1. The person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or r­ etention, or had consented to or subsequently acquiesced in the removal or retention (Regulation 16(3)(a)).312 2. There is a grave risk that their return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Regulation 16(3)(b)).313 308 MW v Director-General, Department of Community Services [2008] HCA 12, [50] (Gummow, Heydon and Crennan JJ). 309 ibid., [49] (Gummow, Heydon and Crennan JJ). 310 Zotkiewicz & Commissioner of Police (No 2) [2011] FamCAFC 147 (May, Thackray and Moncrieff JJ). 311 ibid., [88] (May, Thackray and Moncrieff JJ). 312 See Director-General, Department of Child Safety & Milson [2008] FamCA 872 (O’Reilly J). 313 HZ & State Central Authority [2006] FamCA 466 (Kay, Coleman and Warnick JJ). Cf McDonald & DirectorGeneral, Department of Community Services [2006] FamCA 1400 (Kay, Warnick and Boland JJ); Kilah & Director-General, Department of Community Services (No. 2) [2008] FamCAFC 122 (Bryant CJ, Finn and Thackray JJ).

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3. The child strongly objects to being returned and has attained an age and degree ofmaturity at which it is appropriate to take account of its views (Regulation 16(3)(c)).314 4. The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (Regulation 16(3)(d)).315 There is a further exception to the requirement to return the child, if an application for a return of the child is made more than one year after the day on which the child was first removed to, or retained in, Australia, and the person opposing the return of the child establishes that the child has ‘settled in his or her new environment’ (Regulation 16(2)). The impetus towards return is very strong in the framework established by the Regulations. Even if an exception is made out, this does not automatically prevent return but merely grants the decision maker the discretion to do so. If the application is not brought with a year of the child’s removal or retention, the threshold to oppose return is lower (Regulation 16(1) and (2)).316

9.7.2.2.1  ‘Wrongful removal’: Rights of custody A removal is only wrongful if it is in breach of ‘rights of custody’ and if ‘at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal’ (Article 3, adopted through Regulation 3(2)). ‘Rights of custody’ is defined to include ‘rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child’ (Article 5, replicated in Regulation 4(2)). The effect of the Hague Child Abduction Convention in Australia was greatly expanded with the 1996 amendments, which included giving all parents parental responsibility for children in the absence of court orders (Chapter 6). Every parent who has parental responsibility for a child has ‘rights of custody’ under the Hague Child Abduction Convention even if they do not live with the child and spend little or no time with the child. Similar changes in other countries have extended the rights of biological fathers such that, in the absence of orders removing such rights, most legal parents have ‘rights of custody’.317 It is important to be aware of the gendered impact of this change to the approach to abduction cases, which was not necessarily contemplated at the time of the drafting of the Hague Child Abduction Convention. As in relocation cases, a significant proportion of abduction cases concern mothers wanting to return to their ‘home country’ after having

314 In re F (Hague Convention: Child’s Objections) [2006] FamCA 685 (Bryant CJ, Kay and Boland JJ). 315 Drawn from the Article 20 of the Convention. Director-General, Department of Families, Youth and Community Care & Bennett [2000] FamCA 253 (Kay, Coleman and Barlow JJ); A & GS & Ors [2004] FamCA 967 (Finn, May and Carmody JJ). 316 See McDonald & Director-General, Department of Community Services [2006] FamCA 1400 (Kay, Warnick and Boland JJ) where the application was made more than 18 months later. 317 See Director-General, Department of Family and Community Services & Raddison [2012] FamCAFC 41 (Bryant CJ, Coleman and Murphy JJ); Soysa & Commissioner of Police [2011] FamCAFC 39 (May, Thackray, and AinslieWallace JJ).

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lived abroad with a partner.318 As noted by Lady Hale LJ (as she then was) in her dissenting judgment in the UK decision of TB v JB (Abduction: Grave Risk of Harm):319 when the Hague Convention was first drafted, the paradigm abductor was not the children’s primary carer, but the other parent who ‘snatched’ them away from her. Hence a deliberate distinction was drawn between rights of custody and rights of access. Summary return was not the remedy to protect mere rights of access. Now, however, in 72% of cases, the abductor is the primary carer: the parent who has always looked after the children, upon whom the children rely for all their basic needs, and with whom their main security lies. The other parent is using the Hague Convention essentially to protect his rights of access. He can do this because ‘rights of custody’ include the right to veto travel abroad, and most such parents now enjoy that right. But return to the home country may be a sledge hammer to crack a nut, because however much the children need contact with the other parent, they need a secure happy home with a competent and caring parent even more. There is often good reason to believe that the home country will allow them all to emigrate. It is therefore regarded as a real risk by the Hague Conference that spurious Art 13(b) defences will be raised in such cases: there is equally a real risk that the courts of the requested states will either succumb too readily to such defences, out of the kindness of their hearts and a natural reluctance to do anything which does not appear to them to be in the best interests of the children, or alternatively become unsympathetic and fail to recognise those few which should succeed.320

Bozin-Odhiambo’s 2012 survey of Australian family law practitioners’ self-reports of Hague Child Abduction Convention cases in which they had acted found that the majority of abductors were reported to be primary carer mothers. Lawyers reported that the primary motivation for the abduction was: a need to flee domestic violence and/or child abuse (45.5%); a desire to return to their homeland (72.7%) coupled with longing to return to family and social support networks (63.6%); and a desire to improve their economic situation (36.4%).321

9.7.2.2.2  Habitual residence The test for habitual residence was set down by the HCoA in LK v Director General, Department of Community Services.322 The test encompasses past and present intentions of the parents but also ‘permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.’323 The Court unanimously held that, in circumstances where the intentions of the parents are examined, the possibility of ambiguity or uncertainty in one or both parents’ intentions must be acknowledged since individuals do not always act with a clearly formed Marilyn Freeman, ‘Relocation and the Child’s Best Interests’ (2010) International Family Law 247. TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515. ibid., [43] (Lady Hale LJ). Danielle Bozin-Odhiambo, ‘Re-Examining Habitual Residence as the Sole Connecting Factor in the Hague Convention Child Abduction Cases’ (2012) 3 Family Law Review 4, 11. 322 LK v Director General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582. 323 ibid., [24] (French CJ Gummow, Hayne, Heydon and Kiefel JJ). 318 319 320 321

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view of what the future will hold.324 The Court affirmed that use of the term ‘to identify the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality.’325 In Zotkiewicz & Commissioner of Police (No 2)326 the Full Court (May, Thackray and Moncrieff JJ) reiterated the proposition that ‘in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”’327 and that where there is conflicting evidence about the parties’ intentions the court must not accept the untested evidence of one party. Given highly mobile populations, it is questionable whether the child’s ‘habitual residence’ identifies the appropriate return base. Bozin-Odhiambo argues that the ‘test for determining a child’s habitual residence … does not necessarily yield a jurisdiction which represents the child’s home environment’ and that this flies in the face of the intent of the Hague Child Abduction Convention.328 She gives the example of a UK decision in which a child was summarily returned from the UK, the country of citizenship and usual residence of the family, to Germany where the father had been temporarily seconded for work.329

9.7.2.2.3  Grave risk Settled case law has established that ‘grave risk’ and ‘intolerable situation’ are to be considered distinctly. In DP v Commonwealth Central Authority330 the HCoA rejected the notion that ‘grave risk’ should be ‘construed narrowly’. The onus of establishing ‘grave risk’ is on the person opposing return and requires ‘clear and compelling evidence’.331 Therefore such cases are more likely to involve expanded evidence, including oral evidence of the person opposing return and expert evidence. The risk encompasses both physical and psychological harm. Although expressed as being a risk to the child, over time case law (discussed below) has developed to also consider the risk to a parent where their safety and parenting capacity are affected in such a way that their interests and those of the child are clearly interrelated. In early case law mothers who were victims of domestic violence and fled a country with the child or children in order to escape that violence were often denied the protection of

324 ibid., [34]. 325 ibid., [24]. See also Richard Chisholm, ‘The High Court Rules on Habitual Residence’ (2009) 23 Australian Journal of Family Law 71. 326 Zotkiewicz & Commissioner of Police (No 2) [2011] FamCAFC 147. 327 ibid., [74] (May, Thackray and Moncrieff JJ). 328 Danielle Bozin-Odhiambo, ‘Re-Examining Habitual Residence as the Sole Connecting Factor in the Hague Convention Child Abduction Cases’ (2012) 3 Family Law Review 1. 329 Re R [2003] EWHC 1986. 330 DP v Commonwealth Central Authority [2001] HCA 39; 206 CLR 401. 331 ibid., [43] (Gaudron, Gummow and Hayne JJ). The Court has taken contrary approaches as to whether an Australian government travel warning about a country of return’s general state of safety (as opposed to circumstances particular to the case) constitutes a ‘grave risk’: Genish-Grant & Director-General Department of Community Services [2002] FamCA 346 (travel warning did constitute grave risk); Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 (travel warning did not constitute grave risk).

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this exception.332 Suzanne Christie has noted that Australian courts have focused much attention on examining the standard of the formal legal system’s response to domestic violence in the country of habitual residence to assess whether there is a grave risk posed by return. Christie argues that this factor is beside the point in circumstances where the criminal justice response has not worked previously or where the offender has demonstrated disregard for the laws of the country of habitual residence, such that ‘the best protection of the child/children from risk may be geographical’.333 Recent decisions show a greater attention to, and acknowledgement of, the role of domestic violence in creating ongoing risks to children.334 The psychological risk to children posed by the impaired capacity of a mother who has been primary caregiver if they are returned and she must relocate is a relevant factor under this exception.335 In Harris & Harris,336 the Full Court (Bryant CJ, Finn and Boland JJ) cautioned that a trial court should separately assess the risk of a child being exposed to violence and being themselves the direct subject of violence in order to properly address rather than conflate the distinct elements of psychological and physical harm under this exception.337 However, the Full Court upheld the trial decision to deny return to Norway based upon the cumulative considerations of grave risk posed by the domestic violence and the ‘intolerable situation’ faced by the mother who had no emotional support network, and no Norwegian language skills, employment prospects, or housing there.

9.7.2.2.4  Intolerable situation An example of this ground being applied is McDonald v Director-General, Department of Community Services,338 in which the Full Court (Kay, Warnick and Boland JJ) found that the father’s violence towards the mother had led to her suffering post-traumatic stress disorder that would resurface if she and the child were sent back to the country of habitual of residence. The Full Court also found that questions of appropriate financial and housing arrangements were not adequately addressed and that the trial judge had not determined if the child was being returned to a tolerable situation. On account of these findings the Full Court allowed the appeal and reversed the order requiring the mother to return to Belgium. 332 Miranda Kaye, ‘The Hague Convention and the Flight from Domestic Violence: How Women and Children Are Being Returned by Coach and Four’ (1999) 13 International Journal of Law, Policy and the Family 191. And see, in the US context, Taryn Lindhorst, Battered Women, Their Children, and International Law: The Unintended Consequences of the Hague Child Abduction Convention, Northeastern University Press, Boston, 2012. 333 Suzanne Christie, ‘The “Grave Risk” or “Intolerable Situation” Defence in Cases of Domestic Violence Under the Hague Child Abduction Convention: When Will Risk to a Parent Amount to Risk to a Child?’ (2013) 3 Family Law Review 191, 197. 334 Harris & Harris [2011] FamCAFC 113 (Bryant CJ, Finn and Boland JJ); State Central Authority v Perkis [2010] FamCA 6 (Bennett J). Although cf HZ & State Central Authority [2006] FamCA 466 (Kay, Coleman and Warnick JJ); Dept of Communities (Child Safety Services) & Lugge [2012] FamCA 67 (Murphy J). 335 De L v Director-General Department of Community Services (NSW) [1996] HCA 9 (Gummow J); Harris & Harris [2011] FamCAFC 113 (Bryant CJ, Finn and Boland JJ); Director-General, Department of Families v RSP [2003] FamCA 623 (Ellis, Finn and May JJ). 336 Harris & Harris [2010] FamCAFC 221(Bryant CJ, Finn and Boland JJ). 337 Suzanne Christie suggests that the Full Court was ‘perhaps unduly critical’ on this point as ‘[i]t is not a long bow to draw to state that risk to an unchallenged primary carer constitutes risk to a child’: Chrisie, above n 333, 194. 338 McDonald & Director-General, Department of Community Services [2006] FamCA 1400 (Kay, Warnick and Boland J). See also Secretary of the Attorney-General’s Department & McDonald [2013] FamCA 8.

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9.7.2.2.5  Child’s objection The Regulations provide that, for this exception to apply, not only must the child object to being returned but also that ‘the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes’ (Regulation 17(3)(ii)), and that ‘the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views’ (Regulation 17(3)(iii)). In Re F (Hague Convention: Child’s Objections),339 the Full Court (Bryant CJ, Kay and Boland JJ) held that a mature child’s expression of an extremely strong objection to being returned will meet the requirement of the exception, even where this may unfairly reward the abducting parent. In this case, the Full Court overturned an order for return. In the period between the trial and appeal, the then 12-year-old child had been taken, under warrant, to the airport twice and refused to board the plane despite some ‘mild force’ used by the Australian Federal Police.340 Prior to Re F, the Family Court had generally held that a child’s objection had to be specifically in relation to returning to another country, not to leaving the care of the abducting parent.341 However in Re F the Full Court considered that there may be cases where ‘the two factors are so inevitably and inextricably linked that they cannot be separated’.342 In contrast, in HZ & State Central Authority,343 the Full Court (Kay, Coleman and Warnick JJ) upheld a trial decision to disregard the very strong views of an eight-year-old child who objected to returning to Greece, on account of the child’s young age. The HCoA has recently determined the question of whether procedural fairness requires that children subject to removal should be separate parties to the proceeding or whether their interests should otherwise be legally represented. The case in issue involved four children, subject to a removal order, aged between nine and 16. The HCoA held that, while the court must be sufficiently apprised of the existence or strength of a child’s objection, and the maturity of the child, a child’s views in Hague proceedings can be adequately assessed by the appointment of a family consultant, who reports to the court and the parties.344

9.7.2.2.6  Human rights An exception to the return of the child may be based on a finding that it ‘is not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms’ (Regulation 16(3)(d)). Writing extra-judicially, Michael Kirby has said: A legitimate source of anxiety about an international treaty providing for the rapid return of a child to another country, to be subject to the orders of the courts of that 339 Re F (Hague Convention: Child’s Objections) [2006] FamCA 685 (Bryant, Kay and Boland JJ). 340 Unusually in this matter, three years had elapsed between the abduction and the Full Court hearing. Orders were made for return to New Orleans in 2004. One of the reasons that the original orders were not carried out was the occurrence of Hurricane Katrina. 341 See, e.g., Agee and Agee [2000] FamCA 1251 (Finn, Holden and Guest JJ). 342 Citing Balcome LJ in Re R (Child Abduction: Acquiescence) (1995) 1 FLR 716. 343 HZ & State Central Authority [2006] FAMCA 466, [76]–[77] (Kay, Coleman and Warnick JJ). 344 RCB (as Litigation Guardian of EKV, CEV, CIV AND LRV) v The Honourable Justice Forrest and Ors [2012] HCA 47; (2012) 247 CLR 304.

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country, is the common knowledge that, in some nations, cultural and legal norms are observed that are significantly different from one’s own. Thus, in some countries the rights of women might be subordinated by law to those of men. Very strong feelings concerning religion and apostasy (refusing to acknowledge the rights of persons to change their religion or to abandon that religion) may sometimes make it appear risky to order the return of the child to the country from which it was abducted.345

Yet this provision has been rarely argued and never upheld in Australian case law. For example, Director-General, Department of Families, Youth & Community Care v Bennett346 concerned a Torres Strait Islander child whose mother argued a need to educate the child in her cultural heritage. The fact that the UK (where the child was being returned) had no specific acknowledgement of the importance of Indigenous culture in its legislative framework was held not to meet the exception. The Full Court (Kay, Coleman and Barlow JJ) found that the 16(3)(d) exception is extremely narrow and limited to circumstances where the return of the child ought not be permitted by fundamental principles of Australian law, and to the ‘the rare occasion that the return of a child would utterly shock the conscience of the court or offend all notions of due process.’347

9.7.2.2.7  Settled in the new environment Regulation 16(2) provides that a less stringent test is to be applied if the application is made for return of a child more than one year and a day after they have been first wrongfully removed or retained. In this instance the onus is on the person opposing return to demonstrate that the child has ‘settled in his or her new environment’. If this is established, like the other exceptions, the court still has the discretion to order a return but it is no longer mandatory. There has been a divergence of judicial views as to whether ‘settled’ should be read liberally or narrowly. In Graziano & Daniels 348 the Full Court (Baker, Nygh and Gunn JJ) held that the test ‘must be more exacting than that the child is happy, secure and adjusted to his surrounding circumstances’.349 Rather, two elements were required: that the child is physically settled and emotionally adjusted. This was subsequently doubted by a differently constituted Full Court in Director-General, Department of Community Services & M and C and Anor (Nicholson CJ, Holden and Dessau JJ).350 In the 2013 case of Department of Family and Community Services & Raho,351 Le Poer Trench J explicitly held that requiring both physical and emotional adjustment was an impermissible ‘gloss’ on the Hague Child Abduction Convention and followed the approach of Department of Community Services v M and C and Anor that the word should be given its ordinary meaning. 345 Kirby, above n 307, p 4. 346 Director-General, Department of Families, Youth & Community Care v Bennett [2000] FamCA 253. 347 ibid., [56–[58] (Kay, Coleman and Barlow JJ). See also the Family Law (Child Abduction Convention) Regulations 1986; Between: State Central Authority Applicant and Rebecca Anne Mccall, Wife [1994] FamCA 156 (Treyvaud J). 348 Graziano & Daniels (1991) 14 Fam LR 697 (Baker, Nygh and Gunn JJ). 349 ibid., 704 (Baker, Nygh and Gunn JJ). 350 Department of Community Services & M and C and Anor [1998] FamCA 1518 (Nicholson CJ, Holden and Dessau JJ). 351 Department of Family and Community Services & Raho [2013] FamCA 530.

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9.7.2.2.8  Discharge of a return order The Regulations provide that an application may be made to discharge a return order by the Central Authority, an applicant or a respondent (Regulation 19A(1)). The court may only discharge a return order, or part thereof, if one or more of the following applies: • all parties consent (Regulation 19A(2)(a)); • since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out (Regulation 19A(2)(b)); • exceptional circumstances justify the discharge (Regulation 19A(2)(c)); and/or • the application for discharge is made more than one year after the return order was made or any appeal in relation to the return order was determined.352 While a finding on one of these factors is required to enliven the court’s discretion to discharge an order, the court may still exercise such discretion to decline the application. For example, in Soysa and Commissioner, Western Australia Police353 Thackray CJ in the Family Court of Western Australia rejected the argument for the applicant mother that the best interests of the child should be taken into account in determining whether it is ‘impracticable’ for an order to be carried out, or in finding whether ‘exceptional circumstances’ exist,354 but also made clear that once such a finding has been made, and the discretion enlivened, best interests will be relevant to the exercise of that discretion.355 ‘Impracticable’ has been interpreted as ‘unmanageable’356 but not as requiring the order to be actually impossible to carry out.357 The threshold for ‘exceptional’ circumstances is high. Thus in Garning,358 ‘unsurprising’ consequences such as the children’s growing attachment to Australia after a passage of time since the order was made, could not qualify as ‘exceptional’. In Garning, the mother had unlawfully retained the four children in Australia and, after engaging in a prolonged series of proceedings and unsuccessful appeals,359 evaded the return order when the children ‘were taken into hiding by an adult or adults known to them’.360 Justice Forrest, in dismissing the mother’s second application for a discharge 352 This provision replaced the original in 2007, which had specified two years. 353 Soysa and Commissioner, Western Australia Police [2012] FCWA 28. 354 ibid., [86] (Thackray J). 355 See also Garning v Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839, [18] (Forrest J). 356 State Central Authority & Ustinov (No 4) [2008] FamCA 987, [11] (Dawe J). 357 Soysa and Commissioner, Western Australia Police [2012] FCWA 28, [149] (Thackray CJ); Garning & Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839, [18] (Forrest J). 358 Department of Communities, Child Safety and Disability Services & Garning (Discharge application) [2012] FamCA 839 (Forrest J). 359 See Department of Communities (Child Safety Services) & Garning [2011] FamCA 485; Department of Communities (Child Safety Services) & Garning [2012] FamCA 342; Department of Communities, Child Safety and Disability Services & Garning (No. 2) [2012] FamCA 353; Garning & Department of Communities, Child Safety and Disability Services [2012] FamCA 354; Garning & Department of Communities, Child Safety and Disability Services (No 2) [2012] FamCA 482; Garning & Director-General, Department of Communities, Child Safety and Disability Services and Ors (Discharge of Return Order) [2012] FamCA 565; Department of Communities, Child Safety and Disability Services & Garning and Ors (Stay Pending Discharge Application) [2012] FamCA 699; Garning & Dept of Communities (Child Safety Services) [2012] FamCAFC 35; RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest [2012] HCA 47. 360 Garning & Department of Communities, Child Safety and Disability Services (Discharge Application) [2012] FamCA 839, [7] (Forrest J).

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order, rejected in strong terms her arguments that the passage of time qualified as either impracticable or exceptional circumstances under Regulation 19A.

9.7.2.3 Concluding comments in relation to international child abduction Unlike decision making in other parenting matters, decisions about whether or not to order the return of a child to the child’s place of habitual residence under the Hague Child Abduction Convention are expressly not about that individual child’s best interests. This makes decision making more predictable. Nonetheless, there remains plenty of scope for argument that the requirements for a return order are not met, that one of the exceptions applies, or that the return order should be discharged. Where appeals against return orders have been heard in the HCoA, they have sometimes been successful. In summary, the Hague Child Abduction Convention provides an example of how a rule-based approach to making decisions about children may nevertheless result in significant complexity. This should not surprise us, however, given the nature of these disputes.

9.8 Conclusion In this chapter we have focused on a number of particular issues that arise as, or in the context of, parenting disputes, in order to extend our discussion of the legal framework in Chapter 8. Throughout our discussion, some common themes have emerged. In particular, despite what, in our view, is an unnecessarily complex and tortuous legislative pathway created by the 2006 amendments, the destination reached by decision makers at the end of that process remains unpredictable. The issues explored in this chapter demonstrate particularly clearly the complexity of post-separation family circumstances, but also the likelihood of disagreement about how children’s interests are best protected and promoted in those circumstances. Given this complexity it appears that the need to follow the prescribed legislative pathway is likely to distract from, rather than further, children’s best interests. While there is a growing body of empirical evidence relating to the kinds of disputes explored in this chapter, that evidence provides no easy answers. Even if it did, research necessarily generalises and categorises, while the court’s focus must be on the interests of a particular child in the particular circumstances of the case. Yet this is not a value-free endeavour: decisions prioritise some matters over others, and in doing so may empower one parent over the other, and may also shift power more generally as between mothers and fathers. It seems clear that, as a result of a number of factors, including the 2006 amendments, there has been a shift in favour of maintaining relationships between parents and children when parents separate that has favoured the interests of fathers rather than the interests of mothers. One of the areas where this is particularly evident is in relocation cases: the cases discussed reveal how difficult it can be to establish a case for relocation in the post2006 context. This shift is, however, also evident more subtly in other areas, although approaches are not uniform. One such area is in relation to the involvement of sperm donor

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fathers, with court decisions consistently equating children’s best interests with ongoing involvement of their biological fathers even when this was not part of what was agreed and/ or is undermining of the child’s immediate family unit. Views will of course differ as to whether or not these shifts are positive for children. If over time those norms supported less gendered actual patterns of care, both during relationships and after separation, that would in our view be a positive change. If gendered patterns of care remain so that women continue to do most of the actual caring before as well as after separation, but with diminished levels of recognition, independence and support, then the shift is more problematic. Given the limited influence of law on post-separation behaviour in the broader separating community (Chapter 6), it is difficult to see how its reach could extend to pre-separation behaviour. Legislation that in effect imposes a higher expectation of shared parenting on separating parents than was likely to have been evident while their relationship was intact, or is evident in the broader separating population, is likely to be desirable from the point of view of minority time parents seeking more time with their children, but may be so problematic in other respects that its value for children is questionable—a point repeatedly suggested by the adjudicated cases discussed throughout this chapter.

CHAPTER

10

Introduction to Financial Disputes 10.1 Introduction 382 10.2 Understanding post-separation financial disadvantage  383 10.2.1 The financial impacts of relationship breakdown  384 10.2.2 Wider reasons for women’s financial disadvantage  386 10.2.3 Other factors limiting private support  389 10.2.3.1 Limits of private capacity to provide financial support  390 10.2.3.2 Community attitudes regarding financial obligations to family members 391 10.3 Wealth sharing within intact families and on relationship breakdown  393 10.3.1 Financial arrangements in intact families  393 10.3.2 Financial arrangements on relationship breakdown  397 10.3.2.1 What factors influence financial arrangements?  397 10.3.2.2 The relevance of family violence  399 10.3.2.3 Links between parenting and financial arrangements  401 10.3.2.4 Trade-offs: Property, child support and maintenance  403 10.3.2.5 Children’s views of post-separation financial arrangements  404 10.4 Law and policy in relation to financial disputes on relationship breakdown: An overview 406 10.5 Conclusion 408

10.1  Introduction Throughout Chapters 11 to 15 we focus on the legal framework relevant to the resolution of financial disputes on relationship breakdown, looking first at parents’ responsibility to financially support their children (Chapter 11), followed by property division (Chapters 12–14) and maintenance for spouses and separated de facto partners (Chapter 15). Family law, however, operates in a wider social and policy context that needs to be understood in order to appreciate the issues it addresses and to assess the adequacy of the outcomes reached. That wider social and policy context, as it relates to post-separation financial disputes, is the focus of this chapter. We begin by providing an overview of empirical research on the economic consequences of separation and divorce, focusing on recent Australian research. This is followed by a relatively brief discussion of the broader range of systemic factors contributing to women’s 382

CHAPTER 10: Introduction to Financial Disputes 383

greater economic disadvantage as a group compared to men, along with two other factors limiting private financial support after separation, namely the likelihood that there will be insufficient wealth to satisfy the needs of the parties and their children, and the hierarchical and contingent sense of financial obligation that exists within families. We then build on this discussion by considering empirical research about the extent to which financial sharing actually occurs within intact and separated families. In the context of our consideration of financial sharing on relationship breakdown, we introduce some key research issues in the area of post-separation financial disputes. Finally, we provide a broad overview of the current legal framework for resolution of post-separation financial disputes and how it has changed over time, to set the scene for our more detailed investigation in Chapters 11–15. Our focus throughout this chapter is on marital and de facto relationships. This reflects our emphasis in Chapters 11–15 on the Family Law Act 1975 (Cth) (FLA) framework. We acknowledge, however, that the economic fallout of relationship breakdown is not confined to married and de facto partners—a point increasingly recognised by state legislation (4.2.2) and also by the fact that it is parenthood rather than relationship status that has increasingly linked law to families.1 This is well-illustrated by the evolution of post-separation parenting laws (Chapter 6) and by child support law and policy (Chapter 11).

10.2  Understanding post-separation financial disadvantage In this section, we consider a range of empirical research and data relevant to understanding post-separation financial disadvantage, which is particularly likely to be experienced after relationship breakdown by women and dependent children living with them. An understanding of post-separation financial disadvantage is a necessary building block for understanding and thinking carefully about the operation of law and policy in this area. It is especially important to appreciate that the financial impacts of intimate partner relationship breakdown are far-reaching, extending to all areas of family law and well beyond. Most importantly, the financial consequences of relationship breakdown have significant negative impacts on children’s well-being: ‘Indeed, a fundamental insight provided by recent work suggests that—besides parental conflict—it is the economic fallout from divorce that drives many of the negative consequences of divorce for children’.2 For adults, ‘separation typically creates an economic crisis since the money that supported one family is usually insufficient to meet the costs of two newly formed households, one of which often includes children’.3 The financial crisis of relationship breakdown is also costly to the Australian community more broadly. These costs are primarily borne by 1 John Dewar and Stephen Parker, ‘English Family Law Since WWII: From Status to Chaos’ in Sandford Katz, John Eekelaar and Mavis Maclean (eds), Cross-Currents: Family Law and Policy in the US and England, Oxford University Press, Oxford, 2000. 2 Bruce Smyth and Ruth Weston, Financial Living Standards after Divorce: A Recent Snapshot, Research Paper No. 23, Australian Institute of Family Studies, Melbourne, 2000, p 1. 3 Ibid, p 1. See further Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation: Report of the Family Law Pathways Advisory Group, Commonwealth of Australia, Canberra, 2001.

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governments (and ultimately taxpayers) and non-government organisations.4 They include Parenting Payment (Single) (available on a means-tested basis to resident parents after relationship breakdown), and a wide range of other costs including ‘costs of the [family law courts], community counselling programs, emergency accommodation and some public housing’,5 and more recently, Family Relationship Centres (FRCs) (7.4 and 7.5). The costs of relationship breakdown, then, extend well beyond the purely financial, into many other aspects of the personal well-being of those affected, with significant flow-on costs to the broader community.

10.2.1 The financial impacts of relationship breakdown A great deal of empirical research has been conducted in Australia and other Western countries over the past 30 years on the financial consequences of divorce for men, women and children. In essence, the research has consistently found that women are particularly likely to experience financial hardship after divorce, at least in the short to medium term. This has implications for children, given that the usual scenario after separation is still for children to live with their mothers for most of the time (6.2). Most recently, David de Vaus and colleagues analysed data from the first 10 waves (2001–10) of a longitudinal survey of Australian households—the Household, Income and Labour Dynamics in Australia (HILDA) survey.6 De Vaus and his colleagues sought to examine the financial consequences of separation for spouses and de facto partners over the short to medium term, including changes in living standards and the extent of financial recovery after separation for men and women. Their analysis indicated that negative financial circumstances—namely, a decline in household income and increased reliance on government benefits—were more likely to be experienced by women than men after separation. Specifically, de Vaus and colleagues found that, after separation, women’s household income fell sharply in the short term. Although women’s household income increased in the six years following separation, they still ‘fell behind’ women who did not separate.7 While all women who separated experienced an initial drop in household income, the drop was ‘substantially larger’ for women with dependent children living with them at the time of separation, their recovery in income was ‘much slower’ and ‘the gap in income six years after separation is still substantially greater than it was pre-separation’.8 Gradual recovery appeared linked to women’s increased employment after separation, particularly for those 4 Human Rights and Equal Opportunity Commission (HREOC), Striking the Balance: Women, Men, Work and Family, Discussion Paper, Human Rights and Equal Opportunity Commission, Sydney, 2005, p 76. 5 ibid. 6 Davis de Vaus, Matthew Gray, Lixia Qu and David Stanton, ‘The Economic Consequences of Divorce in Australia’ (2014) 28 International Journal of Law, Policy and the Family 26. See also Rosalie McLachlan, Geoff Gilfillan and Jenny Gordon, Deep and Persistent Disadvantage in Australia, Staff Working Paper, Productivity Commission, Canberra, 2013, pp 140–3 and Chapter 3, , and Vu Son, Bryan Rogers and Bruce Smyth, ‘The Impact of Major Child Support Reform on the Financial Living Standards of Separated Families in Australia’ (2014) (forthcoming) 29 Australian Journal of Family Law. 7 ibid., 32. 8 ibid., 34.

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with dependent children.9 Women’s increased reliance after separation on government benefits was also evident: after separation, the proportion of household income from government benefits doubled for women without dependent children, while for women with dependent children it initially increased from 23 per cent pre-separation to 43 per cent post separation, then reduced gradually, and after six years remained a little higher than what it was pre-divorce.10 In contrast, after separation, men’s household income increased,11 they ‘experienced a substantially faster rate of increase in income post-divorce than had they remained married’,12 and the proportion of their household income from government benefits fell after separation for men with dependent children and increased only slightly for men without dependent children. These patterns are consistent with earlier research, including research on men’s and women’s post-divorce living standards by Bruce Smyth and Ruth Weston of the Australian Institute of Family Studies (AIFS) and published in 2000.13 Smyth and Weston’s analysis was based on data drawn from the AIFS Australian Divorce Transitions Project (ADTP), which involved telephone interviews conducted in late 1997 with a random national sample of 650 Australians who had divorced in the previous 10 years. Their analysis suggested that the position had not changed since the 1980s,14 the consistent finding both in Australia and other Western countries being that men are financially better off after marriage breakdown, while women are disproportionately worse off.15 This was despite significant social and economic change since the 1980s that may have been expected to improve the position of divorced women and their children, including the introduction of the Child Support Scheme (CSS). Smyth and Weston found that sole parent families headed by women, and older divorced women living alone, typically experience a ‘drastic fall in living standards’ post-divorce, with many in this group remaining financially disadvantaged in the longer term.16 Of the men in the sample, older and younger men living alone were the most disadvantaged, along with younger sole fathers.17 Other AIFS research published at around

  9 ibid., 34–5. 10 ibid., pp 38–9. 11 ibid., p 32. 12 ibid., p 42. 13 Smyth and Weston, Financial Living Standards after Divorce, above n 2. 14 Ruth Weston, ‘Income Circumstances of Parents and Children: A Longitudinal View’ in Kathleen Funder, Margaret Harrison and Ruth Weston, Settling Down: Pathways of Parents after Divorce, Australian Institute of Family Studies, Melbourne, 1993, p 135. 15 Richard Neely, ‘The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed’ (1984) 3 Yale Law and Policy Review 168, 179; A Sørenson, ‘Estimating the Economic Consequences of Separation and Divorce: A Cautionary Tale from the United States’ in Lenore Weitzman and Mavis Maclean (eds), The Economic Consequences of Divorce: The International Perspective, Clarendon Press, Oxford, 1991; Ruth Weston, ‘Changes in Household Income Circumstances’ in Peter McDonald (ed.), Settling Up: Property and Income Distribution in Australia, Prentice-Hall of Australia, Australian Institute of Family Studies, Sydney, 1986, p 100. See also Gavin Wood, Chris Chamberlain, Alpherin Babacan, Mike Dockery, Grant Cullen, Greg Costello, Andi Nygaard, Alice Stoakes, Marc Adam and Kate Moloney, The Implications of Loss of a Partner for Older Private Renters, Report No. 16, Australian Housing and Urban Research Institute, Melbourne, 2008, pp 41, 89 (who found that, after relationships end, women are also more likely than men to lose home ownership status, ‘a finding that seems contrary to popular perception’). 16 Smyth and Weston, Financial Living Standards after Divorce, above n 2, p 1. 17 ibid., p 18.

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the same time highlighted two main ways out of poverty for women following divorce: re-partnering, and assistance to re-enter the workforce.18

10.2.2 Wider reasons for women’s financial disadvantage A fundamental point to emerge from research on the financial consequences of separation and divorce (including research conducted by the AIFS in the 1980s and 1990s)19 is that the losses experienced are not caused solely by these events. Rather, a number of broader systemic factors continue to contribute to women’s generally more vulnerable financial position compared with that of men,20 despite significant shifts over the past four decades in women’s education, workforce participation and the ways in which gendered roles within families are configured (6.2.2). The factors include, and are evidenced by, the ongoing gender pay gap (meaning ‘the difference between women’s and men’s average weekly full-time equivalent earnings, expressed as a percentage of men’s earnings’) between men and women in Australia, which in March 2014 was 17.1% and ‘has hovered between 15% and 18% for the past two decades’.21 The gender pay gap is in turn ‘influenced by a number of interrelated work, family and societal factors, including stereotypes about the work men and women “should” do, and the way women and men “should” engage in the workforce’,22 including social encouragement to women (however subtle) to tailor their workforce participation around their domestic and childcare commitments, and time spent out of the workforce having and caring for children.23 Other factors contributing to the gender pay gap are women’s traditional segregation into lower paying industries and jobs compared to men, lack of women in senior roles (partly due to their need for part-time and flexible roles because they still take on most of society’s unpaid caring work), women’s more precarious attachment to the workforce (due largely to their unpaid caring responsibilities), and direct and indirect discrimination,24 with the result that ‘men and women who share the same workforce skills are actually paid differently’.25 Because of their more interrupted working lives, women are also less likely than men to enjoy other employment-related financial advantages that provide

18 Jody Hughes, ‘Repartnering after Divorce: Marginal Mates and Unwedded Women’ (2000) 55 Family Matters 16, 21. 19 In the 1980s: Peter McDonald above n 15; Funder et al., above n 14. In the late 1990s: the ADTP, the findings of which were published in several papers referred to this chapter. 20 See further McLachlan, Gilfillan and Gordon, above n 6. See also Australian Human Rights Commission, Accumulating Poverty: Women’s Experiences of Inequality over the Life Cycle: An Issues Paper Examining the Gender Gap in Retirement Savings, Australian Human Rights Commission, Sydney, 2009, available at ; AMP.NATSEM, ‘She Works Hard for the Money: Australian Women and the Gender Divide’ (AMP.NATSEM Income and Wealth Report No 22, August 2009), . 21 Workplace Gender Equality Agency, Australian Government, ‘Gender Pay Gap Statistics’, March 2014, p 2, . The national gender pay gap is calculated by the Agency using Australian Bureau of Statistics data on average weekly full-time earnings. 22 ibid. 23 Australian Human Rights Commission, above n 20, Introduction. See also Human Rights and Equal Opportunity Commission, above n 4. 24 ibid. 25 AMP.NATSEM, above n 20, p 1.

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financial security,26 including superannuation savings27 (14.5.1) and asset accumulation more generally.28 ‘In other words, women are disadvantaged as earners by their gender, this is exacerbated when they have children and take time out of the workforce to care for them, which in turn reduces their present and future earning capacity’.29 The marked differences between men’s and women’s (particularly mothers’) paid and unpaid work patterns have been consistently underlined in Australian research. In particular, it is clear that the arrival of children reduces women’s employment to a much more significant extent than men’s: ‘women tend to withdraw from employment or spent fewer hours in employment following parenthood while men tend to remain in employment’.30 A recent analysis of data from the first 11 waves of HILDA (2001–11) found that: a first birth does affect the likelihood of leaving employment for women but not for men. For women who are in employment, time spent in paid employment is reduced by almost half following a first birth and is reduced by a further six hours per week following a second birth, but slowly increases with time following a birth. For men, time spent in paid work is not reduced after the first birth but work hours are significantly lower by two hours following a second birth.31

These patterns appear to be continuing32 notwithstanding the introduction of ‘Parental Leave Pay’ in Australia from 2011 (providing eligible working parents (usually mothers) with up to 18 weeks’ pay at the National Minimum Wage to care for a newborn or recently

26 For example, Julia May, ‘Middle Class, Hard Working and Homeless’, The Age (online), 8 April 2014, , referring to Institute for Social Science Research, Older Women’s Pathways out of Homelessness in Australia, report for the Mercy Foundation, Institute for Applied Social Science Research, University of Queensland, February 2014, . 27 Prue Cameron, What’s Choice Got to Do with It? Policy Brief No. 55, Australia Institute, Canberra, 2013, available at . 28 Therese Jefferson and Rachel Ong, Profiling Gender Differentials in Asset and Debt Portfolios in Australia, Working Paper, Centre for Research in Applied Economics, Curtin Institute of Technology, Perth, March 2014), . The authors analysed data from the 2006 HILDA survey, finding that ‘women’s holdings of solely owned assets are lower than men’s in all age groups and across all types of assets for which data are available’ (p 16). See also S Austen, T Jefferson and R Ong, ‘The Gender Gap in Financial Security: What We Know and Don’t Know about Australian Households’ (2014) Feminist Economics, DOI:10.10 80/13545701.2014.911413 published online 9 May 2014. 29 Margaret Harrison, Kathleen Funder and Peter McDonald, ‘Principles, Practice and Problems in Property and Income Transfers’ in Funder et al., above n 14, p 196. 30 Michele Haynes, Lachlan Heybroek, Belinda Hewitt and Janeen Baxter, Parenthood and Employment Outcomes: The Effect of a Birth Transition on Men’s and Women’s Employment Hours, paper prepared for the HILDA Survey Research Conference, Melbourne, 3–4 October 2013, p 24, . 31 ibid., p 2. 32 See further Ben Moham, ‘Parental Leave Scheme Overlooks the Fathers’, The Age (online), 14 March 2014, . On the tendency of fathers not to take parental leave entitlements, see Human Rights and Equal Opportunity Commission, above n 4, pp 20–1.

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adopted child; currently $641.05 per week before tax),33 and ‘Dad and Partner Pay’ from 2013 (providing eligible working fathers or partners with up to two weeks’ governmentfunded pay based on the rate of the National Minimum Wage after a child is born or adopted; currently $641.05 per week before tax).34 Although these are positive initiatives, the financial benefits offered are short-term and the less extensive support offered by ‘Dad and Partner Pay’ reflects, rather than challenges, existing gendered patterns of care. As discussed in Chapter 6, most women now work part time after having children. Women’s employment rates are also strongly linked to the age of their children (mothers with older children are much more likely to be employed than mothers with infants and pre-school aged children).35 As a result, the arrival of children has negative implications for women’s wages and wage growth. A recent analysis of data from the first eight waves (2001–08) of HILDA concluded that: [A]n unexplained motherhood wage penalty of around four per cent for one child and eight per cent for two or more children, is found. Further analysis suggests that the wage penalty emerged over time through reduced wage growth, rather than through an immediate wage decline after the birth of a child. This reduction in wage growth is consistent with discrimination but also with a reduction in mothers’ work effort.36

As also discussed in Chapter 6, with women’s increasing workforce participation men have taken on some increased responsibility for domestic tasks and caring for children—although the most recent research indicates that change has been incremental and that women retain most responsibility in these areas.37 The likelihood that low-income mothers will be working a ‘double shift’ (Chapter 6) has increased following the introduction of ‘welfare-to-work’ rules from 1 July 2006, which in essence require parents applying for Parenting Payment (a  government income support payment for low-income parents including sole parents; from 1998 this payment has covered what was previously called the Sole Parent Pension)38 33 Department of Human Services, Australian Government, Parental Leave Pay, 2014, . While in Opposition, Prime Minister Abbot proposed a paid parental leave scheme under which a woman would be entitled to receive her full wage for six months, including superannuation. In April 2014, the maximum payment for new mothers in the proposed scheme has been dropped from $75,000 to $50,000: Emma Griffiths, ‘Paid Parental Leave: Tony Abbott Reduces Threshold from $150,000 to $100,000’, ABC News (online), 30 April 2014, . 34 Department of Human Services, Australian Government, Dad and Partner Pay, 2014, , 22 April 2014. See also Australian Government, Department of Social Services, Paid Parental Leave: Dad and Partner Pay: Minister’s Foreword, 2014, . 35 Alan Hayes, Ruth Weston, Lixia Qu and Matthew Gray, Families Then and Now: 1980–2010, Australian Institute of Family Studies, Melbourne, 2010, p 6. 36 Tanya Livermore, Joan R Rodgers and Peter Siminski, The Effect of Motherhood on Wages and Wage Growth: Evidence for Australia, Working Paper No. 10–12, University of Wollongong Economics Series, November 2010, p 2 . 37 Lyn Craig, Killian Mullan and Megan Blaxland, ‘Parenthood, Policy and Work-Family Time in Australia 1992– 2006’ (2010) 24(1) Work, Employment and Society 27. 38 Ministerial Taskforce on Child Support, In the Best Interests of Children—Reforming the Child Support Scheme, Commonwealth of Australia, Attorney-General’s Department, Canberra, 2005, pp 73–4.

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to seek part-time work of at least 15 hours per week once their youngest child turns six (if partnered) or eight (if single) (Chapter 11). Indeed, Federal Government policy currently conveys some mixed messages to mothers regarding their participation in paid employment. Paid parental leave does not sit well with the high cost of childcare, which, despite government subsidies,39 makes participation in the paid workforce difficult for many women.40 While women are likely (at least partly as a result of welfare-to-work) to increase their workforce participation as their children grow older, and also after separation, in doing so they are also likely to be disadvantaged by time spent out of the paid workforce and by their ongoing responsibilities for children. Research by Janine Baxter and Jenny Chesters on family-friendly work policies found that ‘what women need most is control over the length and scheduling of their working hours’41 but opportunities for this are likely to be reduced following the Global Financial Crisis (GFC) and economic downturn, and may also be affected by fathers’ ability and willingness to commit to reliable parenting (including shared) time arrangements.42 The gender pay gap both encourages and reinforces the prevailing gendered division of unpaid care and domestic work.

10.2.3 Other factors limiting private support Our discussion so far suggests some significant challenges for law and policy when attempting to formulate approaches that will lead to ‘fair’ and adequate financial settlements on relationship breakdown. In particular, it would seem unreasonable to expect private financial settlements—in the form of child support payments, property division and/or spousal or partner maintenance—to address the financial disadvantage likely to be experienced by women, given that relationship breakdown contributes to but is not the sole cause of that disadvantage. Given the systemic factors at play, it is not surprising that governments and taxpayers pick up a significant part of the cost of meeting women’s and children’s needs. Indeed, an ongoing theme in the area of family law financial disputes is the balance to be struck between private and public sources of support. This is particularly evident in the child support context (Chapter 11), and to a lesser extent in the general principle that an applicant’s eligibility for government benefits is not taken into account when determining whether to make property or maintenance orders in her favour (Chapters 13 and 15). 39 In particular Australian Government Child Care Benefit and Child Care Rebate, . 40 A recent study by the Productivity Commission has found that ‘[f ]amilies with one child in full-time day care are devoting about 9 per cent of their disposable incomes to childcare fees even though the federal government spends more than $5 billion a year subsiding parents’: Matt Wade, ‘Childcare Eating up Nine per Cent of Families’ Income Despite Subsidies’, The Age (online), 9 December 2013, ; Productivity Commission, Australian Government, Childcare and Early Childhood Learning, Issues Paper, Productivity Commission, Canberra, December 2013, pp 20–2, . See also Chapter 16, n 3. 41 Janine Baxter and Jenny Chesters, ‘Perceptions of Work–Family Balance: How Effective Are Family-Friendly Policies?’ (2011) 14 Australian Journal of Labour Economics 139. 42 Veronica Meredith, Penelope Rush and Elly Robinson, Fly-in-Fly-Out Workforce Practices in Australia: The Effects on Children and Family Relationships, Information Exchange Paper No. 19, Australian Institute of Family Studies, Child Family Community Australia, 2014, p 14, .

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In this section we look at two further issues relevant to the points just made. They are (1) the usually modest financial circumstances of separating couples; and (2) the conditional and contingent nature of financial obligations within families.

10.2.3.1 Limits of private capacity to provide financial support When looking at the law and policy surrounding the resolution of post-separation financial disputes, it is important to keep in mind that there are usually significant limits on the extent to which private transfers via child support, property division and spousal or de facto partner maintenance can be used to resolve the financial disparity typically faced by separating couples, especially given that two households are more expensive to run than one and that financial problems are a predictor of relationship breakdown.43 Nevertheless, men are generally in a stronger position to provide financial support than women. The limited financial and other resources typically available to meet the needs of the parties and their dependent children post-separation were recently underlined by de Vaus and colleagues’ analysis of longitudinal HILDA data (10.2). They found that those who separated were younger, had a lower level of educational attainment, and had lower incomes, assets and employment rates than those who remained married.44 Data collected in the child support context convey a similar picture of payers (usually fathers) who are often on low incomes and recipients (usually mothers) who, as a group, have even lower incomes (Chapter 11). These patterns are not new: in the late 1990s low asset marriages (defined as marriages with assets valued at $114,000 or less, excluding superannuation) comprised 46 per cent of the AIFS’s ADTP (see 10.2) nationally representative sample, while high asset marriages (assets valued at $268,500 and over, once again excluding superannuation) comprised 21 per cent of the sample.45 Most recently, the AIFS Longitudinal Study of Separated Families (LSSF) Wave 3 involving telephone interviews in late 2012 with 9,028 parents separating after the 2006 amendments (comprising 5,755 members of the original sample (interviewed in late 2008) and a ‘top-up’ sample of 3,273 parents) found that the value of assets described varied greatly among parents, including 19.6 per cent with no assets to divide, 1.3 per cent with only debts (with a median debt level of $38,000), and 43 For example, AIFS Research by Ilene Wolcott and Jody Hughes examining what divorced men and women perceive to be the main reason for the breakdown of their former marriage: 13% reported external pressures (including financial problems). The majority (71%) mentioned affective dimensions in their marriage (for example, communication problems) as the main reason for divorce, and 16% mentioned abusive behaviours: Ilene Wolcott and Jody Hughes, Towards Understanding the Reasons for Divorce, Working Paper 20, Australian Institute of Family Studies, 1999. See also Bruce Bradbury and Kate Norris, ‘Income and Separation’ (2005) 41 Journal of Sociology 425, which draws on HILDA data to find that income support recipients are more than twice as likely to separate as nonrecipients of income support. More recently, see Relationships Australia and Credit Union Australia, Relationships Indicators Survey 2011: Issues and Concerns for Australian Relationships Today, 2011, p 14 ; House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, To Have and To Hold: Strategies to Strengthen Marriage and Relationships, 1998, chapter 4, pp 53–4, available at . 44 De Vaus, et al., above n 6, pp 30, 42. 45 Grania Sheehan and Jody Hughes, Division of Matrimonial Property in Australia, Research Paper No. 25, Australian Institute of Family Studies, Melbourne, 2001, pp 9–10.

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18.5 per cent with net assets of under $40,000. One-third said they had net assets worth at least $140,000 and 10.9 per cent reported net assets of over $500,000.46 Higher asset pools were described by previously married parents than by parents who had been in de facto relationships (10.3.1). In summary, although there are instances in which separating spouses and de facto  partners are ‘income-rich and asset-poor’, the more usual position is both low-to-medium wealth and income-earning capacity. The likely results are that the state (and thus  the taxpayer) will continue to bear much of the cost of relationship breakdown, particularly for women and children given their commonly greater financial disadvantage.

10.2.3.2 Community attitudes regarding financial obligations to family members Important questions also surround the extent to which community attitudes regarding financial obligations for family members differ depending on the particular relationship (for example, parent–child, husband–wife, de facto relationships) and are influenced by family transitions such as separation and re-partnering, as well as other factors (for example, age, cultural background and financial position). Attitudes are significant because they are likely to influence the way that law and policy shifts are received (or not) in the broader community and may also influence law and policy shifts (see, for example, the child support context: Chapter 11). Our focus now is the more general issue of attitudes regarding financial obligations to family members. Particularly significant here is United Kingdom (UK) research conducted by Janet Finch and Jennifer Mason in the late 1980s and early 1990s.47 Although Finch and Mason gave little attention in their research to family responsibilities after relationship breakdown, their study was important because it highlighted that while parents’ ongoing responsibility to help their children was endorsed more strongly and consistently than any other type of family responsibility, even then the sense of obligation was related more to the development of that commitment than to a biological link.48 In other words, their research suggested that a sense of family obligation, even to biological children, was contingent rather than automatic. In contrast, as we shall see, the legal obligation to financially support a child results largely, and automatically, from biological links. This suggests an apparent gap between formal law and social practices, at least at that time.49 More recently, research on attitudes on financial obligations to family members after divorce was conducted in the United States in the late 1990s by Marilyn Coleman and 46 Lixia Qu, Ruth Weston, Lawrie Moloney, Rae Kaspiew and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, pp 92–3. 47 Janet Finch, Family Obligations and Social Change, Polity Press, Cambridge, 1989; Janet Finch and Jennifer Mason, Negotiating Family Responsibilities, Tavistock Routledge, London, 1993. 48 Finch and Mason, above n 47, pp 166–9. 49 See further John Eekelaar, ‘Uncovering Social Obligations: Family Law and the Responsible Citizen’ in Mavis Maclean (ed.), Making Law for Families, Hart Publishing, Portland, 2000, p 19.

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Lawrence Ganong. They collected data from more than 6,500 adults in the State of Missouri using a vignette technique (that is, asking for responses to a short story or scenario about hypothetical characters in specified circumstances).50 Coleman and Ganong’s research provided two particularly important insights relevant to this and the following chapters on financial disputes. First, their research identified and articulated an apparent hierarchy of financial obligation to family members that operates post-divorce. Although their research did not extend to spousal and de facto partner support obligations, it suggested that a higher sense of financial obligation exists in relation to the support of children compared to adults, and that divorce is viewed as ending the obligation to support non-genetic kin (especially young step-children and former in-laws; remarriage rather than divorce was identified as the key event ending obligations to older step-children).51 Second, they found that although the main sense of responsibility of adults post-divorce is to their biological children and themselves, this also depends on the context. The notion that a broad sense of obligation to financially support one’s biological children exists, but that underneath this attitudes are diverse and contingent, appears consistent with Australian research on attitudes to child support conducted in 2005 by Bruce Smyth and Ruth Weston of the AIFS.52 Smyth and Weston’s study drew on telephone interviews with a general population sample of 1,001 men and women, and also with a national random sample of 620 separated/divorced men and women. Their analysis suggested that while there is now general community support for the idea that child support should always be paid, regardless of the gender or financial circumstances of the non-resident parent, a diverse range of community attitudes exists regarding circumstances in which this obligation should or should not be modified. Most obviously, they found that for non-resident fathers the view that child support should always be paid was generally more conditional. For example, non-resident fathers were more likely than other groups to believe that child support should not be payable if the resident parent was preventing contact or moved interstate or overseas,53 and should be reduced if the non-resident parent had a child with another partner.54 As Coleman and Ganong conclude, the existence of such divergent and conditional  attitudes, combined with diversity of family forms, raises significant problems when it comes to policy formulation and implementation. Most obviously, it helps explain why any given reform in the area of family law financial disputes is likely to be welcomed in some quarters and criticised in others. The issue is usually one of several competing interests. 50 Marilyn Coleman and Lawrence Ganong, ‘Changing Families, Changing Responsibilities?’ (2000) 80 National Forum 34, 36–7. See further Lawrence Ganong and Marilyn Coleman, Changing Families, Changing Responsibilities, Erlbraum, Hillsdale, 1999. 51 Lawrence Ganong and Marilyn Coleman, Changing Families, Changing Responsibilities, Erlbraum, Hillsdale, 1999, pp 152–3 and 155. 52 Smyth and Weston, A Snapshot of Contemporary Attitudes to Child Support, Research Report No. 13, Australian Institute of Family Studies, Melbourne, 2005, p 28. In the UK to similar effect, see Carol Smart, Vanessa May, Amanda Wade and Clare Furness, with Kaveri Sharma and Jason Strelitz, Residence and Contact Disputes in Court—Volume 2, Research Paper No. 4/05, Department of Constitutional Affairs Research Series, 2005, pp 20–1. 53 Smyth and Weston, A Snapshot of Contemporary Attitudes to Child Support, above n 52, pp 48–52. 54 ibid., pp 46–7.

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10.3  Wealth sharing within intact families and on ­relationship breakdown So far, we have provided some broader empirical context regarding the financial consequences of relationship breakdown. With that material as a backdrop, we now focus more specifically on what empirical research tells us about how wealth is shared during relationships and divided when relationships break down. Given that very few separating couples litigate their financial disputes (Chapters 11 and 12) yet may be influenced to some extent by what (they think) the law says,55 taking into account how people actually think and behave in relation to money is an important part of understanding the likely relevance and effectiveness of law and policy in this area. In summary, the research suggests that, in intact relationships, married couples and de facto couples with children usually pool their finances. However, there is also research suggesting that an ethic of sharing is more strongly expressed in attitudes than behaviours and financial sharing within families is conditional, depending on the particular family relationship and the wider circumstances. After separation, when the partnership no longer exists, individual entitlement is likely to be more strongly asserted, but other factors such as children’s needs and fault are also relevant to the financial arrangements made. The legal framework, particularly the FLA, allows scope for all of these matters to have influence. In doing so, it reflects the complexity of financial attitudes and behaviours in both intact and separated relationships while providing no clear indication of whether the ‘partnership’ approach likely to be adopted while the parties were together or the ‘individualistic’ approach likely to manifest on relationship breakdown should hold sway in decision making after separation.

10.3.1 Financial arrangements in intact families The empirical evidence (which has to date focused mainly on married couples) suggests that the general tendency is for spouses in intact marriages to take a communal approach to their financial arrangements. This is supported by a body of AIFS research indicating a very strong tendency of married couples to pool their incomes and to have joint bank accounts.56 The picture of wealth sharing in intact marriages becomes more complicated when we factor in older research suggesting that women are more likely than men to adopt an ethic 55 Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. As noted in Chapter 6, a large body of theory and research has engaged with the extent to which this metaphor is apt, e.g., John Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 Modern Law Review 467; Ira Ellman, ‘Why Making Family Law Is Hard’ (2003) 35 Arizona State Law Journal 699. 56 For example, Ruth Weston, ‘Financial Arrangements and Personal Income’ in Peter McDonald (ed.), Settling Up: Property and Income Distribution on Divorce in Australia, AIFS, Prentice-Hall of Australia, Sydney, 1986, p 131; Helen Glezer and Eithne Mills, ‘Controlling the Purse Strings’ (1991) 29 Family Matters 35; Helen Glezer, ‘Cohabitation and Marriage in the 1990s’ (1997) 47 Family Matters 5. This body of literature is discussed in more detail in Belinda Fehlberg and Bruce Smyth, ‘Pre-Nuptial Agreements for Australia: Why Not?’ (2000) 14 Australian Journal of Family Law 80.

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of cooperation and sharing in their personal relationships.57 In other words, wives may be more inclined than husbands to assume that their relationship involves sharing. There is also research indicating that, even among couples with a philosophy of sharing, a sense of ‘ownership’ or entitlement is associated with having directly earned the money: usually this favours the husband.58 The result is that, despite an overt ethic that ‘we share’,59 husbands are more likely than wives to have overall financial control and greater access to money for personal spending in intact relationships, and ultimately the marriage partnership is likely to be an economically unequal one. This gap between the ‘public’ image of ‘jointness’ and the underlying reality of financial power and control in couple relationships emerged from Saba Waseem’s review of literature on within-household attitudes and behaviours regarding money: The ideology of money in marriage is thus one of privacy and of jointness; it is supposed to be jointly controlled by the husband and wife, with the marital unit controlling its strict boundaries. While this dominant view is being challenged by the ideology of the individual’s rights to what they earn, it continues to shape thinking in research and policy. Drawing on a distinction between management of household finances and real control over them, the literature reports a dissonance between ideology and practice. Most studies find that management and control roles within the household [in essence, to the effect that women may manage but are unlikely to control household finances] are largely gendered and have little or no relationship to household income levels, education, age, or even the wife’s contributions to the household income.60

In contrast to marriage, less is known about wealth sharing in intact heterosexual de facto relationships, and much less again regarding wealth sharing in same-sex de facto relationships, or domestic relationships more broadly. We do know, however, that separating de facto partners are likely to have significantly lower asset pools to divide than those separating from marriage, and comprise a more diverse group. This is supported by recent AIFS LSSF Wave 3 findings: the median value of assets of formerly cohabiting couples was $60,000 compared to $250,000 for formerly married couples.61 The researchers observed that these differences were not surprising as, compared to the formerly married, de facto couples ‘were younger and had a shorter duration of living together and thus had less to bring into the relationship and a shorter time to accumulate assets’.62 Consistent with this, 57 Carol Gilligan, In a Different Voice, Harvard University Press, Cambridge, MA, 1982, pp 42, 159. 58 For a discussion of empirical studies on this point see Belinda Fehlberg, Sexually Transmitted Debt: Surety Experience and English Law, Clarendon Press, Oxford, 1995, chapter 2. 59 Recent Australian statistical data indicate that women and men say that daily financial decisions are usually either made by women (more women than men are likely to say this) or by the couple (more men than women are likely to say this), and that major financial decisions are shared. Women with Year 12 or lower levels of education are more likely to leave major financial decisions to their partner. See Bruce Heady, Diana Warren and Glenys Harding, Families, Income and Jobs: A Statistical Report of the HILDA Survey, Melbourne Institute of Applied Economic and Social Research, University of Melbourne, 2006, pp 59–60. 60 Saba Waseem, Household Monies and Decision-Making, Research Paper No. 23, Social Research Policy Series, Department of Family and Community Services, 2004, p 26. See also Fehlberg, Sexually Transmitted Debt, above n 58, chapter 2. 61 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46, pp 93–4. The sample included a small number (n = 5) of de facto same-sex couples. 62 ibid., p 93.

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they also found that the family home was the main asset of formerly married (77.5 per cent) but not de facto (37.4 percent) couples. Similarly, AIFS research in the late 1990s found that owning or purchasing a home was less likely among those in heterosexual de facto relationships compared with marriages,63 and also suggested that financial pooling was less common among heterosexual de facto couples than married couples. Specifically, research by Helen Glezer and Eithne Mills in 1991, drawing on data gathered from 1,100 men and women living in couple relationships, found that ‘[w]here there was more than one income, those who were cohabiting were significantly more likely to keep their incomes entirely separate than those who were married: 24 per cent compared with 6 per cent’.64 Glezer reached similar conclusions in 1996, on the basis of a survey of almost 2,000 Australian men and women, which found that cohabiting couples were less likely to have joint bank accounts (54 per cent) than married couples (90 per cent).65 Consistent with this, Edith Gray and Ann Evans’ analysis of 1997 data from the Negotiating the Life Course survey (a nationally representative Australian panel survey) found ‘support for the argument that the institution of marriage affects income sharing. Married people are less likely to keep their incomes totally separate and are more likely to have their incomes totally combined’.66 However, Evans and Gray also found that ‘[o]ther factors that impact on income sharing include length of relationship, presence of children, purchasing a home, age, and the independence in relationship attitude’.67 This finding encourages caution when drawing simple ‘cause and effect’ conclusions from relationship status. Caution should also be exercised in assuming that research findings based on data collected in the 1990s still hold. Since then, the pace of social change is such that cohabitation has become increasingly common, including among older couples, and most couples now cohabit before marrying (89 per cent in 2010, compared to 56 per cent in 1992).68 Any differences between financial arrangements in marital compared to de facto relationships may increasingly have more to do with the greater diversity of de facto relationships than 63 Helen Glezer, above n 56, p 9. The article reports findings from the AIFS Australian Family Life Course Study, to the effect that married couples (86%) were more likely to own or be purchasing their own home than cohabiting couples (66%). 64 Glezer and Mills, above n 56. 65 Glezer, above n 56, 8. See also Supriya Singh and Jo Lindsay, ‘Money in Heterosexual Relationships’ (1996) 32 Journal of Sociology 57. Supriya Singh and Jo Lindsay’s 1996 research found that there was little financial pooling among the cohabiting couples in their sample (who were all never married and without children). They described money in marriages as ‘joint and conditional’ and money in cohabitations as ‘separate and calculable’ (p 57). 66 Edith Gray and Ann Evans, ‘Do Couples Share Income? Variation in the Organisation of Income in Dual-Earner Households’ (2008) 43 Australian Journal of Social Issues 441, 450. 67 ibid., p 448. 68 In 2010, de facto relationships were still most common among younger people (one-fifth of people aged 20–9 years lived in de facto relationships, compared with nearly one-tenth of people aged 40–9 years), but the proportion of people aged 20–9 years living in a de facto relationship had doubled since 1992, and the rate for people aged 40–9 years has also nearly doubled during this time: Australian Bureau of Statistics, 4102.0— Australian Social Trends, March Quarter 2012: Love Me Do, 2013, .

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with relationship status of itself. Ruth Weston of the AIFS has explained the differences this way: These differences do not necessarily indicate any sinister or unfair allocation of resources among de facto couples. A greater incidence of pooling of resources is expected among married than de facto couples, because the former have made personal and economic commitments to each other which are both publicly and legally acknowledged. The level of commitment made by de factos, on the other hand, can vary according to the ‘stage’ of the relationship. Some de facto couples may see their relationship as entailing the same level of commitment as expected in marriage; for others, the relationship is probably seen as a stepping stone towards marriage.69

While Australia lacks recent empirical research focusing on financial sharing in marital and de facto relationships, more recent UK empirical research suggests that ‘married and unmarried people who are living together share many values. Indeed, the similarities in the normative determinants of their behaviour may be greater than the dissimilarities’.70 In particular, the UK research suggests that factors other than whether the parties marry are more determinative of money management systems. Cohabiting parents71 tend to pool their finances (similar to married couples) while separate finances appear more common among young and childless cohabitees and older cohabitees in subsequent relationships.72 There is some evidence from research with Australian participants to similar effect.73 For example, the sample for Fehlberg and colleagues’74 qualitative research exploring links between parenting and financial settlements following the 2006 shared parenting amendments included both married (42) and never married (18, including two non-cohabiting) participants. Consistent with the AIFS research just mentioned, de facto relationships tended to involve shorter relationships and either younger couples with fewer assets or couples with assets entering second relationships—circumstances which encouraged less financial pooling during relationships and a reduced sense of ongoing 69 Weston, above n 56. 70 John Eekelaar and Mavis Maclean, ‘Marriage and the Moral Bases of Personal Relationships’ (2004) 31 Journal of Law and Society 510, 538. 71 For example, Rosalind Tennant, Jean Prior and Jane Lewis, Separating from Cohabitation: Making Arrangements for Finances and Parenting, Research Paper No. 7/06, Department for Constitutional Affairs, London, 2006; Carolyn Volger, Michaela Brockmann and Richard D Wiggins, ‘Managing Money in New Heterosexual Forms of Intimate Relationships’ (2008) 37 Journal of Socio-Economics 552; Carolyn Volger, ‘Managing Money in Intimate Relationships’ in Joanna Miles and Rebecca Probert (eds), Sharing Lives, Dividing Assets: An Inter-Disciplinary Study, Hart Publishing, Oxford, 2009. 72 Volger, Brockmann and Wiggins, above n 71; Volger, above n 71. 73 Lindy Willmott, Ben Mathews and Greg Shoebridge, ‘De Facto Relationships Property Adjustment Law’ (2003) 17 Australian Journal of Family Law 37, 45 citing David De Vaus, ‘Family Values in the Nineties’ (1997) 48 Family Matters 5, 7. See also Nareeda Lewers, Helen Rhoades and Shurleee Swain, ‘Judicial and Couple Approaches to Contributions and Property: The Dominance and Difficulties of a Reciprocity Model’ (2007) 21 Australian Journal of Family Law 123 (which included a study of the attitudes of 57 Melbourne couples in married (n = 38) and de facto relationships (n = 19) regarding fair property division when a relationship ends, based on interviews in 2004 and 2005. The average duration of relationships was 12 years and most had young children. The authors found ‘adherence to a reciprocity model of married or committed intimate relationships, in which partners perform different but mutually supportive and equally valuable roles for the benefit of their family’ (p 138). 74 Belinda Fehlberg, Christine Millward and Monica Campo, ‘Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214.

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financial obligation when relationships ended. De facto partners who had been primary carers were, however, particularly likely to describe their property settlements as unfair because they had not been able to share in their ex-partner’s superannuation. Splitting of superannuation between de facto partners only became possible from 1 March 2009 when financial disputes on de facto relationship breakdown were brought under the FLA. The experiences of de facto partners in Fehlberg and colleagues’ study also indicated that post-separation economic disadvantage experienced by women and their dependent children does not depend on relationship status.75 The current FLA approach (Chapter 13) is consistent with this position. However, the diversity of de facto relationships, especially their lower assets as a group compared to those separating from marriage, makes it less likely that de facto financial cases will arise in the family law courts76 or that de facto partners will use lawyers as their main pathway to reach property settlement (12.2).77

10.3.2 Financial arrangements on relationship breakdown In this section, we first consider the range of factors influencing the financial arrangements that separating spouses and de facto partners make on relationship breakdown. We then consider four specific issues in more detail, namely the relevance of family violence to financial settlements, links between parenting arrangements and financial settlements, trade-offs sometimes made by parents when reaching financial settlements, and children’s views on the financial settlements reached by their parents.

10.3.2.1 What factors influence financial arrangements? Recent research suggests, consistent with earlier research,78 that a range of factors influences financial settlements on relationship breakdown, and that this is the case whether or not family law professionals and processes are accessed (Chapter 12). Most recently, LSSF Wave 3 parent interview data suggested that a range of factors influenced property division when spouses and de facto partners separated: [T]he evidence suggests the strongest influences on the proportionate share of property were: the size of asset pools, the dynamics surrounding the separation (who initiated separation, who left the house), a history of family violence/abuse and care-time arrangements. The influence of the effects of a history of family violence/ abuse and the role played in the separation decision on the shares received by each [parent] were mediated by who left the house at separation. There was no association between property division and children’s age.79

Similarly, Fehlberg and colleagues’ qualitative study of post-separation parenting and financial arrangements (10.3.1) found that property settlements were influenced by a range of factors including children’s needs, the duration of the marriage, initial and post-separation contributions, the value of the property pool relative to the costs of a 75 Willmott, Mathews and Shoebridge, above n 73, p 46. 76 Jenni Millbank, ‘Domestic Rifts: Who Is Using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14 Australian Journal of Family Law 163. 77 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46, p 100. 78 McDonald, above n 15; Sheehan and Hughes, above n 45. 79 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46, p 105.

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dispute, family violence, perceptions of fault or guilt, and non-financial and financial ‘trade-offs’ (for example, agreeing to take less property in order to ‘keep the peace’ or receive ongoing financial support). A link was more evident between parenting arrangements and child support than between parenting and property arrangements but was not as consistent as the researchers had expected: it was evident in just over half their 60 cases and largely due to the operation or influence of the formula. In other words, the link was structural, rather than intended by parents. Often, child support was disregarded or was out of step with parenting arrangements (including Child Support Collect arrangements: Chapter 11) mainly for reasons that seemed, on the reports of both payees and payers, to be largely related to payers’ unwillingness to pay. Common features in these cases were high ongoing parental conflict (including family violence) and inaccurate parental income amounts being used in child support assessments (Chapter 11). More relevant factors to children’s ongoing financial support were the quality of the post-separation parental relationship, the role of new partners, and parents’ level of commitment to their children (including their willingness and capacity to financially support them). In contrast, research conducted in 2004 and 2005 by Nareeda Lewers, Helen Rhoades and Shurlee Swain80 suggested that a ‘partnership’ approach underpinned judicial approaches and the attitudes of couples in intact relationships, at least regarding cases involving modest assets and dependent children. Their analysis of 260 unreported Family Court judgments found that the approach of judges in cases involving modest assets was to readily assess the contributions of spouses as having been equally valuable and to focus on the needs of the spouses and their dependent children. Similarly, they found that married and de facto couples in intact relationships adhered ‘to a reciprocity model of married or committed intimate relationships, in which partners perform different but mutually supportive and equally valuable roles for the benefit of their family’,81 with children’s needs being prioritised ‘in the overwhelming majority of cases, couples … including those who did not have children themselves’.82 Conversely, Rhoades and colleagues’ findings also suggested, similar to the findings of LSSF Wave 3 and Fehlberg and colleagues, that notions of marital fault continue to play a role in how property is divided, both in judicially determined cases and in settlements reached in the broader separating population. Sheehan and Hughes suggested that perceptions of matrimonial fault (particularly who initiated the separation) resulted in more generous property outcomes for parties left behind but less generous outcomes for victims of family violence. In both instances, parties appeared to trade property entitlements for being able to exit the marriage (regarding violence, see 10.3.2.2). Similarly, Rhoades and colleagues’ analysis of 54 unreported cases in which marital fault (including domestic violence, substance abuse, wasting money and infidelity) arose as issues concluded that the cases ‘support the argument that blaming never really went away’.83 This research is 80 81 82 83

Nareeda Lewers, Helen Rhoades and Shurleee Swain, above n 73. ibid., p 138. ibid., p 140. Nell Alves-Perini, Margaret Harrison, Helen Rhoades and Shurlee Swain, ‘Finding Fault in Matrimonial Property Law: A Little Bit of History Repeating?’ (2006) 34 Federal Law Review 377.

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consistent with Richard Ingleby’s observation that removing fault from divorce has led to its manifestation in other contexts, including in financial disputes.84 Overall, the research discussed in this section suggests that a ‘partnership’ approach commonly underpins financial pooling in married relationships and de facto relationships where there are children. In contrast, on relationship breakdown individual claims are more likely to be asserted. The question then becomes whether property division should be guided by how ex-couples are likely to think at that point, or how they behaved while together, or by an approach that potentially accommodates both of these. The FLA reflects the last approach, allowing scope for notions of partnership, individual entitlement, need and compensation to be recognised depending on the circumstances (Chapter  13).85 In contrast, the CSS is more directive and proceeds on the basis that parents have an obligation to provide this support to the extent that they are able to do so (Chapter 11). However, in both instances private agreement is encouraged and most separating couples do this (Chapter 12). It is thus not surprising that several factors likely to impact on financial settlements are not reflected in the legislation, in particular who left the house, who initiated separation, being a target of family violence or abuse, and the quality of the post-separation parental relationship.

10.3.2.2 The relevance of family violence While there has been much empirical research on the relevance of family violence to parenting arrangements (Chapter 5), the relevance of family violence to financial arrangements (Chapter 14) remains comparatively under-explored. In the late 1990s, Sheehan and Hughes’s suggestion that matrimonial fault (particularly who initiated the separation and violence in the marriage) was relevant to how property was divided86 was further explored in a project involving telephone interviews with a random national sample of 398 divorced men and women. Grania Sheehan and Bruce Smyth’s analysis of those data concluded that ‘a party’s experience of violence puts them at a disadvantage when dividing the matrimonial property’87 and that ‘women who report spousal violence are more likely than women who do not report spousal violence to receive a minority share of the property’.88 They also suggested that FLA financial provisions would not always assist as ‘the share of property these women receive appears to reflect the practical difficulties they face in trying to negotiate a fair settlement with a violent former spouse—a situation where safety may be given precedence over a fair share of the matrimonial property.89 84 Richard Ingleby, ‘Matrimonial Breakdown and the Legal Process: The Limitations of No-Fault Divorce’ (1989) 11 Law and Policy 1. 85 Similar to other Western countries: Joanna Miles and Jens M Scherpe, ‘The Legal Consequences of Dissolution: Property and Financial Support between Spouses’, in John Eekelaar and Rob George (eds), Routledge Handbook of Family Law and Policy, Routledge, Oxford, 2014, 138. 86 Sheehan and Hughes, Division of Matrimonial Property in Australia, above n 45. 87 Grania Sheehan and Bruce Smyth, ‘Spousal Violence and Post-Separation Family Law Outcomes’ (2000) 14 Australian Journal of Family Law 102, p 111. 88 ibid., p 16. 89 ibid.

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Most recently, AIFS analysis of LSSF Wave 3 data found that parents who reported being targets of their ex-partner’s family violence or abuse reported receiving lower average property settlements and were considerably less likely than parents not reporting family violence or abuse to view their property settlement as fair.90 A further recent AIFS study 91 (the Survey of Recently Separated Parents (SRSP, discussed further in Chapter 5) reported that parents who had experienced family violence before, during or since separation were more likely to use Child Support Collect (Chapter 11), reported higher non-compliance, and were more likely to perceive the child support assessment in their case to be personally unfair than parents who did not describe family violence. The latter findings appear broadly consistent with qualitative research conducted in 2006 (just before major child support amendments in 2006–08) by Rebecca Patrick and colleagues. That research involved interviews with 19 single mothers living in Melbourne who described family violence and received welfare benefits. Patrick and colleagues’ analysis suggested the complex range of issues raised by family violence in the child support context and conveyed that manipulation of child support responsibilities can be part of an ongoing strategy by perpetrators of family violence to maintain power and control over targets (11.3.3.2).92 Similarly, Fehlberg and colleagues’ recent qualitative research on links between post-separation parenting and financial arrangements found that family violence was relevant to participants’ financial arrangements more generally.93 Their study included several cases in which participants’ descriptions indicated that family violence had an impact on property division, child support outcomes or both. In particular, participants’ descriptions indicated that family violence often negatively affected mothers’ receipt of child support. Mothers who described family violence that affected their property settlements also commonly described problems obtaining child support from their ex-partner. Consistent with Sheehan and Smyth’s earlier research, victims of family violence who appeared to suffer no direct financial hardship commonly had reasonably strong personal and professional 90 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46, pp 106, 111. 91 John de Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011, Australian Institution of Family Studies, Melbourne, 2013, available at . This study comprised telephone interviews with 6,119 parents regarding their experiences of, and system responses to, family violence and concerns about child safety before the Family Law Amendment (Family Violence and Other Measures) Act 2011 (the 2012 amendments) came into effect. 92 Rebecca Patrick, Kay Cook and Hayley McKenzie, ‘Domestic Violence and the Exemption from Seeking Child Support: Providing Safety or Legitimizing Ongoing Poverty and Fear’ (2008) 42 Social Policy and Administration 749. See also Rebecca Patrick, Kay Cook and Ann Taket, ‘Multiple Barriers to Obtaining Child Support: Experiences of Women Leaving Violent Partners’ (2007) 45 Just Policy 30. 93 Belinda Fehlberg, Christine Millward and Monica Campo, ‘Shared Post-Separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247; Belinda Fehlberg, Christine Millward, Monica Campo and Rachel Carson, ‘Post-Separation Parenting and Financial Settlements: Exploring Changes Over Time’ (2013) 27 International Journal of Law, Policy and the Family 359; Belinda Fehlberg and Christine Millward, ‘Post-Separation Parenting and Financial Arrangements over Time: Recent Qualitative Findings’ (2013) 92 Family Matters 29; Belinda Fehlberg and Christine Millward, ‘Family Violence and Financial Outcomes after Parental Separation’, Alan Hayes and Daryl Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia, Australian Institute of Family Studies, Melbourne, 2014.

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resources, including legal representation leading to property arrangements formalised in consent orders, and an ability to navigate their relationship with their ex-partner. Even so, the controlling behaviour of ex-partners still often influenced parenting outcomes, which in turn played a role in shaping financial outcomes. In this respect violence could have an indirect and continuing influence on financial outcomes, wearing mothers down over time and discouraging their pursuit of legal remedies. The significance of family violence to child support, property and maintenance arrangements is discussed in more detail in Chapters 11, 13 and 15 respectively.

10.3.2.3 Links between parenting and financial arrangements The research considered so far has indicated that parenting arrangements are a factor that influences post-separation financial arrangements. This is also reflected in the terms of the FLA and the child support legislation. Following the 2006 amendments (Chapter 6) there has been increased interest in whether parents are likely to be motivated by financial outcomes when making their parenting arrangements to a greater extent than previously. Specifically, does the desire for a better property settlement and/or to pay less or receive more child support encourage parents to seek shared time arrangements? Will this be in children’s best interests? Several studies have identified ‘maternal drift’94 from shared time arrangements back towards primary mother time95 in the three or four years following separation.96 This gives rise to the risk that financial arrangements when shared time is in place may become a new source of financial disadvantage for women and their dependent children if ‘maternal drift’ occurs. Links between parenting and financial arrangements were briefly explored in the course of the AIFS evaluation of the 2006 amendments,97 focusing on legal system professionals (see also Chapter 6). Evaluation data indicated that family lawyers saw child support as an important factor motivating parents (especially payers—usually fathers) to spend more time with their children and that many family law system professionals saw the desire to seek a greater proportion of the property settlement as a common motivation of fathers 94 A term coined by Patricia Brown, Eun Hee Joung and Lawrence M Berger, Divorced Wisconsin Families with Shared Care Placements, report to the Wisconsin Department of Workforce Development, Bureau of Child Support, 2006, . 95 The researchers used ‘primary/majority’ parenting-time to refer to parents with more than 57% of care, ‘minority time’ to refer to parents with up to 43% of care and ‘equal time’ is used to refer to parents with 47–55% of care. ‘Primary time’ was used to refer to arrangements where one parent had 70% or more of care. 96 Eleanor E Maccoby and Robert H Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody, Harvard University Press, Cambridge, 1992, p 168; Heather Juby, Nicole Marcil-Gratton and Céline Le Bordais C, When Parents Separate: Further Findings from the National Longitudinal Survey of Children and Youth, Ministry of Justice, Ontario, 2005, p 31; Carol Smart and Bren Neale, Family Fragments?, Polity Press, Cambridge, 2009, pp 61 and 75; Bruce Smyth, Ruth Weston, Lawrie Moloney, Nick Richardson, and Jeromey Temple, ‘Changes in Patterns of Parenting Over Time: Recent Australian Data’ (2008) 14 Journal of Family Studies 23, 31. LSSF Wave 3 indicated that children in all care arrangements at Wave 1 ‘were more inclined to spend increased time with their mother than with their father’, with the exception of arrangements where children spent at least 87% of their time with their mother, who experienced increased time with their father (possibly because this group comprised very young children at Wave 1): Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46, p 83. 97 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Canberra, 2009, pp 222–9.

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seeking shared parenting-time arrangements.98 About half (51 per cent) of the 319 family lawyers surveyed thought that the 2006 amendments may be resulting in mothers receiving around five per cent less of the property. Most said it was uncommon for clients to revisit property arrangements, while ‘advice about changing parenting arrangements was sought much more frequently’.99 These patterns are consistent with the ‘clean break’ approach that underlies the property provisions but not the parenting provisions of the FLA (Chapter 13). Subsequently, Fehlberg and colleagues’ qualitative study (10.3.1) on post-separation parenting and financial settlements suggested the complexity of links between parenting and financial arrangements, both initially and over time.100 Over their three-year study, most parenting arrangements remained unchanged (especially when children lived with their mother) but when they did change, time sharing was more likely to decrease (with a drift towards more time with the mother) than increase. Property arrangements did not change when parenting changed. Child support payments were more likely to change than property arrangements but they were less responsive to parenting changes than the researchers had expected. It was also clear that some parents consciously manipulated their level of care to improve their child support position, while also emphasising their desire for time with their children. This group included both mothers and fathers, but the mothers appeared more motivated by the desire to protect their children’s financial interests, rather than their own. This was broadly consistent with Bruce Smyth and colleagues’ conclusion that strategic bargaining over child support for financial gain was not widespread, based on a literature review and data collected as part of a wider study on the impact of recent child support amendments.101 Fehlberg and colleagues’ study also suggested that whether or not financial support was responsive to parenting changes depended on several factors: the quality of the post-separation relationship, the role of new partners and parents’ level of commitment to their children (including their willingness and capacity to financially support them). In the end, the quality of the post-separation parental relationship appeared to be a particularly significant factor. More broadly, the broader relevance of this factor to children’s well-being was underlined in LSSF Wave 3 findings: ‘Parents who had not experienced family violence/abuse in either wave, held no safety concerns on either occasion, or consistently reported a positive inter-parental relationship were more likely to report consistently high or improved child well-being’.102 As noted in Chapter 6, the bargaining dynamics surrounding parenting arrangements, including links between parenting and financial arrangements, have only recently started  98 ibid., pp 222–3.  99 ibid., pp 227–8. 100 Fehlberg, Millward and Campo, above n 74; Belinda Fehlberg, Christine Millward, Monica Campo and Rachel Carson, ‘Post-Separation Parenting and Financial Arrangements: Exploring Changes over Time’ (2013) 27 International Journal of Law, Policy and the Family 359. 101 See also Bruce Smyth, Bryan Rodgers, Vu Son, Liz Allen and Maria Vnuk, ‘Separated Parents’ Knowledge of How Changes in Parenting Time Can Affect Child Support Payments and Family Tax Benefit Splitting in Australia: A  Pre-/Post-Reform Comparison’ (2012) 26 Australian Journal of Family Law 181; Bruce Smyth and Bryan Rodgers, ‘Strategic Bargaining over Child Support and Parenting Time: A Critical Review of the Literature’ (2011) 25 Australian Journal of Family Law 210. 102 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46, p xviii.

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to be the subject of empirical examination. The research so far does, however, suggest that ‘strategic bargaining’ at the negative end of the scale, while evident, occurs in a minority of cases, and that parenting arrangements are likely to be one of several factors shaping financial arrangements, rather than being determinative. However, there is still much we do not know, and an ongoing need in family law research and policy to move beyond a ‘silo’ approach, which has tended to treat parenting and financial issues separately. In particular, the quality of the post-separation relationship appears to be a factor influencing the quality of outcomes in both contexts, which would seem to lend additional support to measures focused on improving separated parent’s ability to communicate and cooperate in a businesslike manner (Chapter 7).

10.3.2.4 Trade-offs A further area that has been the subject of little empirical investigation yet increasing researcher interest is the trade-offs that separating couples may make between property, child support and maintenance arrangements, and between financial and parenting arrangements. For example, a mother may agree not to claim child support in order to retain a greater share of the property or out of fear of family violence. A father may agree to pay more child support than he needs to in order to retain a business asset and/or to maintain a positive post-separation relationship with his ex-partner for the benefit of their children. In essence, the research so far suggests that trade-offs may occur in cooperative or conflicted circumstances, and may operate negatively or positively for parents and children depending largely on the quality of the post-separation relationship. The research also suggests the importance of considering the broader circumstances of the parties, and their own perceptions of what amounts to a ‘fair’ outcome, when considering whether property orders are just and equitable or child support assessments are being complied with.103 However, there is still much work to be done in this area. For example, Fehlberg and colleagues’ study104 found that parents tended to view child support and property settlement as separate issues, but they were linked in a minority of cases. These included cases where child support was traded off (that is, not claimed) to provide a home for the children, or where a lesser property settlement was accepted to promote ongoing financial support of children and avoid conflict, or where child support or property transfers were traded off for more parenting time, to facilitate parent–child relationships and avoid conflict. Trade-offs could occur in cooperative or uncooperative circumstances. For example, one father (‘Andy’) described a cooperative, child-focused post-separation relationship, which changed from equal time to him having substantial time over the three years of the study, due to his ex-partner’s work commitments. Of the asset pool of just under $2 million (mainly comprising a successful business) he received a minority share of property (13 per cent) while his ex-partner kept their business. However, he continued to benefit from the proceeds of the business because his ex-partner paid him high periodic child support as well as almost all the other costs of their two children. While 103 Lawrie Moloney, Bruce Smyth and Kim Fraser, ‘Beyond the Formula: Where Can Parents Go to Discuss Child Support Together?’ (2010) 16 Journal of Family Studies 33. 104 Fehlberg, Millward, Campo and Carson, above n 100.

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there was a child support assessment, it was ignored. In contrast, another study participant (‘Carla’) described an equal time arrangement at Year 1 of the study but by Year 3 said the children were living with her for 70 per cent of the time and that she was not accepting child support from her ex-husband. Carla had sacrificed ongoing financial support in exchange for more time with her children. She did this in order to avoid high ongoing conflict arising from the step-mother’s treatment of the children and to promote the children’s relationship with their father. Similarly, research by Kristin Natalier, Hayley McKenzie and Kay Cook on women’s experiences of child support, which drew on data from three qualitative research projects collected before major child support amendments in 2008, found that while the child support formula provided an initial starting point for deciding how much child support would be transferred, this amount was often negotiated down with reference to each partner’s financial circumstances, care of children, and in-kind support, to arrive at a figure that parents considered was ‘right’ or ‘fair’ given the parents’ circumstances, their relationship and the needs of their children (‘balanced reciprocity’).105 The researchers also observed, however, that, ‘the flexibility and informality used by many parents to manage child support transfers can lead to financial and emotional losses to recipients and children in ways that do not align with the spirit of the [CSS] objectives’.106 For many women in their three studies ‘there was a marked difference between formal arrangements and the amount of money they received’. In particular, non-payment, late payment and irregular payment constrained mothers’ ability to budget and imposed an administrative burden on them due to the need to frequently engage with Centrelink to report the payment problems they experienced. Similar to Fehlberg and colleagues’ study, they found that ‘those who regularly received their full entitlements tended to have at least civil relationships with their ex-partners and ‘a meaningful role in the lives of their children’.

10.3.2.5 Children’s views of post-separation financial arrangements Significantly, views about ‘fairness’ in the context of family law financial disputes have been dominated by adults, with the result that law and policy have been developed without specific consideration of what children and young people consider to be fair. This is in marked contrast to the parenting disputes context, where the requirement to consider children’s views is reflected in the FLA section 60CC ‘best interests’ checklist and is well established in the case law (Chapter 8). This may reflect social norms about the sorts of issues it is appropriate to consult with children about, given their evolving maturity and understanding. It may, however, also have something to do with money being a tangible commodity, in relation to which notions of individual (adult) ownership are likely to be particularly strong, with the result that it may be more convenient for adults to regard what children think as irrelevant. Yet there is no doubt that children are directly affected 105 Kristin Natalier, Hayley McKenzie and Kay Cook, ‘Women’s Experiences of Child Support: Accounting for the Financial and Social Dimensions of Money’, paper presented at the International Symposium on Child Support, Crawford School of Public Policy, Australian National University, Canberra, 28–30 October 2013. 106 ibid.

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by the financial arrangements their parents make, and by the level of ongoing acrimony surrounding those arrangements. Children’s views would therefore seem vital in informing our overall understanding of the adequacy and appropriateness of those arrangements. An exception to the adult-focused research on attitudes to child support was the AIFS ADTP project, which included telephone interviews conducted in 1997 with 60 young people aged 12–19 in Australia whose parents had divorced, and regarding both parenting and financial arrangements. Analysis of those data by Patrick Parkinson and colleagues suggested children’s incomplete knowledge of the child support arrangements affecting them: Just over half the young people (n = 32, 53%) said their nonresident parent paid some child support on a regular basis to support them or paid for other expenses such as school fees or health costs. Fewer than two-thirds of these young people, however, were willing or able to indicate the amount and the regularity of those payments. Few could say whether the money was just for them or for other children in the family as well.107

Yet the analysis also underlined: the importance to young people of equal treatment by parents of all their children. This was particularly important in terms of young people’s perceptions of fairness as between a parent’s first and second families … Five out of the 11 young people whose father was living with a new partner and other children, considered that the father did not divide his time fairly between them and the other children. They also had an acute sense of injustice if a parent spent more money on the children in a new family than on themselves.108

These findings suggested that although children in separated families may have an incomplete knowledge of the financial transfers that occur, they may nevertheless have a keen sense of whether they are being treated fairly (by which they appear to mean ‘equally’ to other children whom their parents support). More recently, Monica Campo and colleagues analysed interviews with 22 children (conducted as part of Fehlberg and colleagues’ qualitative study on post-separation parenting  and financial arrangements) to explore children’s own descriptions and views of their and their parents’ financial circumstances after parental separation (including arrangements for children’s financial support).109 They found that most children’s responses suggested a lack of knowledge about, but also a discomfort in discussing financial issues. Thus while most children in primary mother care arrangements described greater differences in parents’ wealth (mothers were poorer), they endeavoured to rationalise inequality. In contrast, children in shared time (especially equal time) were less likely to perceive parental financial inequality, focusing more on parents’ conflict over who paid 107 Patrick Parkinson, Judy Cashmore and Judi Single, ‘Adolescents’ Views on the Fairness of Parenting and Financial Arrangements after Separation’ (2005) 43 Family Court Review 429, 438. 108 ibid., p 441. 109 Monica Campo, Belinda Fehlberg and Christine Millward, ‘“I Think It’s Okay; I’m Not Going to Say It’s Unfair”: Children’s Views of Financial Arrangements in Post-Separation Families’, paper presented at the 13th Australian Institute of Family Studies conference, Melbourne, 30 July – 1 August 2014.

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for what and appearing more aware of financial arrangements for their support. Campo and colleagues observed that while children’s responses to questions about post-separation financial arrangements initially appeared sparse, on closer examination they revealed a number of competing concerns for children that appeared to influence responses. Conflict, including over money, and financial inequality ‘registered’ for the children they interviewed, but (with the exception of older children describing conflict) children preferred to remain loyal to both parents and thus to view financial arrangements and outcomes as ‘equal’ and ‘fair’. Meanwhile, mothers strove to ensure that their children wanted for nothing. In doing so, they understandably acted to protect their children from ‘missing out’ but they also appeared, as a group, to be in a difficult position. Mothers were commonly financially poorer than fathers yet gained the highest praise from children if they provided for them without complaint. The authors concluded that, even for this reason, there would seem to be value in supporting parents and children to talk about money.

10.4  Law and policy in relation to financial disputes on relationship breakdown: an overview The historical development of Australian law governing financial disputes on relationship breakdown has been reasonably complex, due in large part to the Federal Parliament’s limited power under the Australian Constitution to legislate in relation to families. As discussed in Chapter 3, many issues have been resolved. From the late 1980s, child support for children whose parents separate (or have never lived together) has been covered by a national CSS (Chapter 11) and from 1 March 2009 property and maintenance disputes following de facto partner relationship breakdown have been covered by the FLA (Chapters 4 and 13).110 However, some fragmentation continues to exist. In relation to financial matters, this is particularly evident in relation to property and maintenance disputes between unmarried parties who are not in a ‘de facto relationship’ under the FLA and so must access state legislation and the general law (Chapter 4), and in FLA financial cases involving third party interests (Chapter 14). With the exception of state referrals of legislative power to the Commonwealth bringing financial disputes on de facto partner relationship breakdown under the FLA from 1 March 2009, it is fair to say that since the 1990s the overwhelming focus of family law policy 110 More specifically, before the FLA came into effect on 5 January 1976, replacing the Matrimonial Causes Act, child maintenance and maintenance of spouses before divorce and child maintenance were left to the state legislatures, although from the early 1960s uniform Maintenance Acts were enacted by the states and by the Commonwealth for the ACT and the NT. With the enactment of the FLA, maintenance of spouses before divorce and maintenance of children of married parents also became subject to federal legislation, along with proceedings for principal relief (divorce now being on a ‘no fault’ basis) and parenting orders for children of married parents. Following referral by states (apart from WA) of legislative power in relation to children in the 1980s, Australia’s national CSS was established (Chapter 11), and the FLA was amended so that parenting orders (and also child maintenance orders, although these became less relevant following the establishment of the CSS) did not depend on parental relationship status. Following a further referral of powers in relation to de facto partner financial disputes (apart from WA), the FLA was amended from 1 March 2009 with the effect that property and maintenance disputes on de facto partner relationship breakdown are now covered by the Act (Chapter 13). While WA has its own Family Court and did not refer powers, the potential for fragmentation is generally reduced by the enactment of laws mirroring legislative change (3.5.1).

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and reform has been post-separation parenting (Chapters 6–9). The policy context has been—and still is—dominated by children issues, with financial issues generating the most public interest and discussion when they arise in that context (the most obvious example being child support changes: Chapter 11). In recent years, policy and law reform activity in relation to financial disputes has (once again, with the exception of bringing financial disputes between separating de facto partners under the FLA in 2009) been restricted to specific areas rather than being broad-based. Examples (which are considered in Chapter 14) include legislative amendment to allow spouses (and now de facto partners) to enter binding financial agreements prior to marriage or cohabitation (as well as during relationships and after they end) (2000), to allow superannuation splitting (2002), in relation to third parties in FLA financial disputes (2004) and to streamline bankruptcy and family law proceedings (2005). As noted in Chapter 14, the implications for financial disputes of family violence amendments effective from 2012 (which included a wider and more detailed definition of family violence: Chapter 5) are so far untested. In 2006, Rosemary Hunter suggested that ‘the three decades since the enactment of the Family Law Act 1975 can be very roughly divided up as follows. The first decade was the decade of the divorce panic. The second decade was the decade of the property panic. And the third decade has been the decade of panic about children’.111 Specifically, Hunter argued that an initial concern over divorce followed the introduction of ‘no fault’ divorce with the enactment of the FLA. After that: attention shifted to the aspects of the Family Law Act relating to property division. The concern arose initially around the issue of post-divorce welfare dependency, but there was also interest in overseas regimes that provided for equal sharing of matrimonial property after divorce.112

The establishment of the CSS reflected the first of these concerns as well as concern regarding children’s post-separation economic disadvantage (Chapter 11), but no major property reform occurred. From the mid-1990s ‘the development of a full-scale panic about children’113 began, and continues to the present day. The operation of the CSS, introduced in the late 1980s, has an impact on most separating parents and has been the subject of ongoing complaint, inquiry and amendment (Chapter 11). In contrast, fewer separating couples have enough property to argue about or enough money to pay maintenance once child support is paid; this helps explain recent lack of policy and reform interest in these areas—it can readily remain in the policy and law reform ‘too hard’ basket. In summary, spousal maintenance was last the subject of reform interest in the late 1980s and resulted in reform so that periodic spousal (and now also de facto) maintenance pursuant to court orders and financial agreements can be collected in the same way as periodic child support, and in making clear that entitlement to income-tested government benefits is to be disregarded in the assessment of whether an applicant for 111 Rosemary Hunter, ‘Decades of Panic’ (2006) 10 Griffith Review, . 112 ibid. 113 ibid.

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maintenance is unable to support herself (but not in determining whether a respondent has the capacity to pay maintenance) (15.8). There has been no policy consideration of the underlying rationale for awarding spousal and de facto partner maintenance (which remains unclear) or regarding the introduction of guidelines to aid consistency of awards (as has occurred in Canada) (15.6). The last time major property reform was considered was in the late 1990s. Proposals for legislative change in relation to property during the 1980s and 1990s114 centred on the introduction of a starting point of equal sharing. They included legislation prescribing that equality of division should be a starting point as was recommended by the Australian Law Reform Commission in its 1987 report, Matrimonial Property (the Hambly Report).115 Similarly, in 1992, the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act favoured equal sharing as the starting point in the allocation of matrimonial property, with courts having a discretion to depart from this to take account of exceptional circumstances.116 In mid-1999 a discussion paper, Property and Family Law: Options for Change, was prepared and circulated for comment by the federal Attorney-General’s Department.117 The discussion paper canvassed two options for law reform: (1) a starting point of equal sharing, based on an assumption of equal contribution; and (2) a community of property regime under which each party would receive 50 per cent of ‘communal assets’ (being property acquired by either or both parties during the marriage, and net increases in value during cohabitation/marriage of all earlier acquired property). Both options provided for departure from the starting point of equal sharing, although for option 2 this was more limited.118 Responses to the discussion paper did not provide clear support for either of these approaches. Of particular concern was the likelihood that a starting point of equality, while superficially ‘fair’, would in fact disadvantage most women, given the tendency for parties’ contributions to be assessed as equal with women receiving an additional ‘loading’ due to their greater financial needs (Chapter 13). This concern remains salient: equal sharing is not a way of achieving ‘just and equitable’ outcomes when there is no ‘level playing field’ to begin with, due usually to women’s greater financial disadvantage after separation.

10.5  Conclusion Our analysis in the following chapters suggests a continuing a need to reconsider the operation of family property and maintenance law despite lack of recent community and 114 See further Attorney-General’s Department, Property and Family Law: Options for Change (1999), pp 11–17, which summarises recommendations made in the following reports: Joint Select Committee on the Family Law Act, Australian Parliament, Family Law in Australia (1980); Australian Law Reform Commission, Matrimonial Property, Report No. 39 (1987); Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Australian Parliament, The Family Law Act 1975—Aspects of Its Operation and Interpretation, (1992); Senate Legal and Constitutional Committee, Australian Parliament, The Family Law Reform Bill 1994 and the Family Law Reform Bill (No 2) 1994 (1995). 115 Australian Law Reform Commission, above n 114. 116 Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, above n 114, pp 233–4. 117 Attorney-General’s Department, above n 114. 118 Attorney-General’s Department, above n 114, pp 36–7, 42–3.

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policy interest in the area. The current breadth of discretion under FLA Part VIII and VIIIAB does not assist the separating population to settle their financial matters or reflect judicial practice in cases involving modest domestic assets and relationships of reasonable duration. As indicated earlier, however, ‘[p]art of the reason for the lack of support for more far-reaching matrimonial property reform is that serious property division is a minority issue’.119 The discussion in this chapter suggests that another ‘part of the reason’ is likely to be lack of community consensus regarding the factors that should guide property division and the payment of maintenance to an ex-spouse or partner. Indeed, the child support context provides an ongoing illustration of the complexity encountered when formulaic approaches are attempted. In the end, the discussion throughout this chapter suggests that the greatest challenge lies in achieving financial outcomes that are just and equitable in a broader social context marked by gender inequality and sidelining of children’s and increasingly women’s interests. These challenges are likely to be particularly significant for the separating population, given the presence of a range of other factors for this group including lesser education and income levels compared to parents who stay together, the pervasive issue of family violence and abuse (especially before and around the time of separation), and the common presence of mental health and substance abuse issues.120 As AIFS LSSF Wave 3 findings underline, any emphasis on the better outcomes achieved by parents who can communicate and cooperate needs to take account that this may not be achievable for a minority of parents who continue to face significant problems over time.121

119 Hunter above n 111. 120 Kaspiew et al, above n 97, chapter 2; De Maio et al., above n 91, Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46. 121 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 46.

CHAPTER

11

Child Support 11.1 Introduction 411 11.2 The CSS  415 11.2.1 Background to the introduction of the CSS  415 11.2.2 Regulatory framework  417 11.2.3 How do most parents work out child support?  418 11.2.4 Ongoing controversy, review and amendment  424 11.3 The CSS: Preliminaries  429 11.3.1 Who does formula assessment apply to?  429 11.3.2 Determining parentage for child support purposes: Process  433 11.3.3 Does an application for formula-based assessment have to be made?  435 11.3.3.1 The Maintenance Action Test  435 11.3.3.2 Exemption from the test: Family violence  436 11.3.4 Receipt of child support is not necessarily a net gain to the mother  438 11.4 The basic formula  439 11.5 Flexibility in the operation and application of the formula and the CSS more broadly  445 11.5.1 Modification of the formula  445 11.5.1.1 Second families  445 11.5.1.2 Fathers on low incomes  446 11.5.2 The ‘change of assessment’ procedure  447 11.5.3 Child support agreements  450 11.5.4 Flexibility regarding timing and form of payments  455 11.5.4.1 Non-agency payments  455 11.5.4.2 Lump sum payments  456 11.6 Enforcement 457 11.7 Child support after the 2006–08 amendments: Research and evaluation  458 11.7.1 Impact of the 2006–08 amendments  458 11.7.2 Improved compliance?  462 11.8 FLA child maintenance provisions  464 11.8.1 FLA child maintenance liability for those who are not ‘parents’ for the CS(A)A 465 11.8.1.1 Step-parents 465 11.8.2 Children over 18: FLA section 66L  467 11.8.2.1 ‘Reasonable’ rather than ‘absolute’ necessity  467 410

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11.8.2.2 Relevance of the relationship between the child and parent against whom maintenance order is sought  468 11.8.2.3 Applications on the basis of a child’s disability  469 11.8.2.4 Applications to enable a child to complete their education  470 11.9 Conclusion 472

11.1  Introduction That the Child Support Scheme has proven controversial is not surprising. The Scheme operates at the intersection of family law, income support and the tax system. It sometimes seems to act as a lens for intensifying personal resentment on the part of those who feel aggrieved by court decisions on children’s living arrangements and the division of property, or by the circumstances that resulted in separation, or the unplanned birth of a child. Even in the absence of conflict between the parents, it may prove difficult to develop a mechanism that both parents consider fair.1

The extent to which separated parents meet their financial responsibility to support their children (their ‘child support’ obligation) under section 3 of the Child Support (Assessment) Act 1989 (Cth) (CS(A)A) is an issue of key significance for families, government and the wider community, both in Australia and internationally.2 Indeed, child support is the financial issue most likely to arise between separating parents in Australia, directly impacting on the welfare of approximately 1.1 million children.3 Although parents may have no or little property to divide and the payment of spousal and de facto partner maintenance is relatively uncommon, the obligation to apply for a child support assessment will exist in almost every case. Given this, it is not surprising that child support is often a source of conflict between parents. As with other parenting matters, many parents have arrangements for the financial support of their children that they accept or comply with despite feelings of unfairness, and the law has its most direct application in cases where there is disagreement and dispute.4 Child support arrangements may also influence parenting time and property negotiations (Chapter 10). For all these reasons, family law professionals in Australia need to have an understanding of child support law, despite their much-reduced role in the area since the introduction of a national Child Support Scheme (CSS—involving administrative assessment by a Federal Government 1 Ministerial Taskforce on Child Support, In the Best Interests of Children—Reforming the Child Support Scheme, Commonwealth of Australia, Attorney-General’s Department, Canberra, 2005, p 78. 2 For an international comparative analysis of child support schemes (although conducted before the 2006–08 Australian child support amendments and also before recent United Kingdom (UK) amendments (below n 13)) see Christine Skinner and Jacqueline Davidson, ‘Recent Trends in Child Maintenance Schemes in 14 Countries’ (2009) 23(1) International Journal of Law, Policy and the Family 23, 25. 3 Australian Bureau of Statistics, 4442.0—Family Characteristics, Australia, 2009–10, . 4 See, e.g., John de Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011, Australian Institute of Family Studies, Melbourne, 2013, p 53, . Table 4:14 indicated that 20% of the 3868 parents consulting lawyers had sought assistance in relation to child support, compared to 60.8% for parenting and 50% for parenting. The total sample, comprising 6,119 parents, was derived from the DHS-CS database.

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agency (the Department of Human Services—Child Support (DHS-CS), until recently called the Child Support Agency (CSA)) of child support liability by application of a formula from the late 1980s. More broadly, child support raises complex legal and policy questions about the extent to which responsibility for children’s financial support is, and should be, borne by each of their parents versus the state (through government payments to families, and thus ultimately taxpayers and the wider community). The result is a highly significant, dynamic, and controversial area of Australian family law, warranting our attention for reasons beyond the practice-based. In this chapter, we aim to capture sufficient legal detail to convey how the financial obligation of separated parents to support their children is established and calculated, but also to explore the philosophical and policy priorities underlying those legal rules. We are particularly interested in how law and policy have shifted over time in response to various conflicting interests, and most recently in the interests of fathers (as the usual payers of child support). 5 Our central theme is that child support is about the (gendered) politics of competing interests. It is about money (usually in the hands of fathers and the state), the balance to be struck between parental and state financial responsibility for children, and children’s rights (ensuring that children’s financial needs are met). Competing interests are also very evident in other parenting and financial disputes, but in this area they tend to manifest in a way that presents a different range of challenges for separated families, probably due at least partly to the pervasive presence of DHS-CS and its associated bureaucracy in the lives of Australian separated families. Added to this is the complex relationship between money and love that exists in personal relationships: money is a tangible commodity that can readily be fought over, yet money is also often difficult to talk about, can readily become a proxy for love and care in personal relationships,6 and has been appropriately conceptualised as ‘a means by which people define, express and manage relationships’.7 While these sensitivities are likely to be amplified in separated families, researchers have only just begun to explore the 5 In 2008–09, 87 per cent of registered payers were male: Child Support Agency, Facts and Figures 2008–09, Commonwealth of Australia, 2009, p 27. See also Lixia Qu, Ruth Weston, Lawrie Moloney. Rae Kaspiew and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, pp 118–20; de Maio et al., above n 4, pp E4 and 106 ; Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, 2009, p 192; Lixia Qu and Ruth Weston, Parenting Dynamics after Separation, Australian Institute of Family Studies, 2010, pp 120–1. On women as breadwinners in Australian families, see Rachel Wells and Lara O’Toole, ‘Women Rising up as Breadwinners of Australia’s Modern Family’, The Age (online), 23 October 2013, . This newspaper article reported on the release of Rebecca Cassells, Matthew Toohey, Marcia Keegan and Itismita Mohanty, Modern Family: The Changing Shape of Australian Families, Report No 34, AMP.NATSEM Income and Wealth, October 2013, available from . 6 Marcia Millman, Warm Hearts and Cold Cash: The Intimate Dynamics of Families and Money, The Free Press, New York, 1991, p 15, cited in Bruce Smyth and Bryan Rodgers, ‘Strategic Bargaining Over Child Support and Parenting Time: A Critical Review of the Literature’ (2011) 25 Australian Journal of Family Law 210, 212. 7 Kristen Natalier, ‘Descriptions of Loss and Resilience among Fathers Paying Child Support’ (2012) 18 Journal of Family Studies 246, 247.

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significance of the emotional dimensions of paying and receiving child support and the ways in which parents experience child support law and process.8 There has been even less exploration of how children experience post-separation financial arrangements including child support (Chapter 10). Indeed, while we might think that the key focus in this area should be children’s best interests (financial support being, after all, crucial to children’s care, welfare and development), child support after separation sits between parenting and financial disputes and is imbued with aspects of both. Consistent with this, the principle that the best interests of the child are the paramount consideration does not apply in this context as it does to other parenting disputes: Family Law Act 1975 (Cth) (FLA) (section 65AA, cf. CS(A)A subsections 3 and 4, FLA sections 66B and 66C9; cf. FLA section 60CA). Thus while high priority is attached to the obligation to financially support one’s children, parents’ interests are more clearly relevant in this context. This, combined with the empirical reality that mothers are usually the claimants of child support10 because they are the primary carers of children in most Australian families and as a group are financially worse off than separated fathers,11 who as a group are financially better off but not necessarily well-off either, provides significant scope for gender-based arguments to play a significant role in the area of child support. We see this in responses to key recurring questions such as ‘do fathers pay too much child support?’ and ‘do mothers receive enough child support?’—although in a similar way to disputes over parenting responsibility and time, stakeholders commonly claim to be child-focused.12 An adult-centric focus is also consistent with the key principle underpinning the CSS, which focuses on parental responsibilities rather than children’s rights: ‘The parents of a child have the primary duty for maintaining the child’ (CS(A)A section 3(1)). As we shall 8 See further Kristin Natalier and Belinda Hewitt, ‘“It’s Not Just about the Money”: Non-Resident Fathers’ Perspectives on Paying Child Support’ (2010) 44 Sociology 489; Kristin Natalier and Belinda Hewitt, ‘Reproducing and Undoing Hegemonic Masculinity and Socially Valued Femininity through Separated Fathers’ and Mothers’ Definitions of Legitimate Uses of Child Support’ (2014) Gender and Society (forthcoming); Kristin Natalier, Hayley McKenzie and Kay Cook, ‘Women’s Experiences of Child Support: Accounting for the Financial and Social Dimensions of Money’, paper presented at the International Symposium on Child Support, Crawford School of Public Policy, Australian National University, Canberra, 28–30 October 2013; Belinda Fehlberg, Christine Millward, Monica Campo and Rachel Carson, ‘Post-Separation Parenting and Financial Settlements: Exploring Changes over Time’ (2013) 27 International Journal of Law, Policy and the Family 359. In contrast, earlier research focused on more purely financial aspects, particularly the extent and consequences of (non)compliance: see further Kay Cook, Hayley Mackenzie, and Tess Knight, ‘Child Support Research in Australia: A Critical Review’ (2011) 17 Journal of Family Studies 110. 9 In the Marriage of Tynan (1992) 16 Fam LR 621, 635 (per Moss J); In the Marriage of Carpenter [1994] FamCA 89, [63]–[71] (per Chisholm J). 10 Above n 5. 11 In 2009, the average taxable income of CSA payers (CSA Collect and Private Collect) was $47,044 (CSA Collect: $43,035). However, the average taxable income of receivers was still lower: $22,818 (not including FTB). Child Support Agency, above n 5, p 32, . See also Bruce Smyth and Paul Henman, ‘The Distributional and Financial Impacts of the New Australian Child Support Scheme: A “Before and Day-After Reform” Comparison of Assessed Liability’ (2010) 16 Journal of Family Studies 5. 12 Kathryn Fogarty and Martha Augoustinos, ‘Feckless Fathers and Monopolizing Mothers: Motive, Identity, and Fundamental Truths in the Australian Public Inquiry into Child Custody’ (2008) 47(3) British Journal of Social Psychology 535; Ministerial Taskforce on Child Support, above n 1.

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see, however, law, policy, and community responses to this issue have shifted over time,13 away from acceptance of state/community responsibility (and, with that, child poverty in sole parent households) in the 1970s and 1980s towards imposing greater responsibility on parents (especially fathers) in the late 1980s and most recently towards treating both parents as notional payers of child support, consistent with the shared parenting ethos underlying the 2006 parenting amendments, but which appear to have had the overall impact of reducing the level of fathers’ financial responsibility to support their children. Despite this, the dominant emphasis in Australia—even following the Global Financial Crisis (GFC) and economic downturn—continues to be on prioritising private before state financial resources. This is in contrast, for example, to recent law and policy shifts in England and Wales in effect ‘releasing the welfare population from the obligation to pursue “private” sources of support’14 because insisting on child support compliance for this group costs more than it is financially worth. There are other strong policy arguments for favouring state over private support, including the failure of privatised child support obligations to address the continuing widespread poverty of mothers and their dependent children.15 In reality, the Australian Federal Government and taxpayer have continued to play a significant role in financially supporting children in separated families due the limited ability and/or unwillingness of parents to do so. Indeed, increases in Federal Government financial support for families are sometimes referred to as a rationale for reducing fathers’ child support liabilities.16 However, the extent to which government financial support makes child support less justifiable is difficult to discern due to the complex interaction between Australia’s child support, social security and taxation systems.17 Most recently, the extent to which state support to families in the form of the Family Tax Benefit (FTB) has offset losses to mothers and children arising from reduced child support payments following the 2006–08 child support amendments,18 which ‘overwhelmingly benefited the interests of men at the expense 13 While our focus is on how this relationship has been played out in more recent times, historically this is a theme that has been evident in child and spousal support law and social policy since the introduction of the English Poor Law from the 16th century, and particularly in the 19th century. As John Eekelaar has observed, ‘[i]t is significant that in both cases the earliest examples of where the social obligation became, at least partly, incorporated into the formal law, arose where the community had incurred liabilities … and in times of relatively high social instability’: John Eekelaar ‘Uncovering Social Obligations: Family Law and the Responsible Citizen’ in Mavis Maclean (ed.), Making Law for Families, Hart Publishing, Oxford, 2000, pp 10, 18. 14 Belinda Fehlberg and Mavis Maclean, ‘Child Support Policy in Australia and the United Kingdom: Changing Priorities but a Similar Tough Deal for Children?’ (2009) 23 International Journal of Law, Policy and the Family 1, 2. The change has been towards encouraging private agreement over accessing the statutory scheme, including charging fees for use of the Statutory Child Maintenance Service. In cases where no private agreement is reached and the amount of child support payable does not justify the payment of fees to pursue it, then no child support would be paid. See further Christine Skinner and Gill Mann, ‘The Contribution of Child Maintenance Payments to the Income Packages of Lone Mothers’ (2013) 21 Journal of Poverty and Social Justice 47; Christine Skinner, ‘Child Maintenance Reforms: Understanding Fathers’ Agency and the Power of Reciprocity’ (2013) 27 International Journal of Law, Policy and the Family 242; Patrick Parkinson, ‘Reengineering the Child Support Scheme: An Australian Perspective on the British Government’s Proposals’ (2007) 70 Modern Law Review 812. 15 See further Sally Sheldon, ‘Unwilling Fathers and Abortion: Terminating Men’s Child Support Obligations?’ (2003) 66 Modern Law Review 175, 178–80. 16 As predicted by the Ministerial Taskforce on Child Support, above n 1, 259–60. 17 For a qualitative exploration of mothers’ interactions with the child support and welfare systems before the 2006–08 child support amendments, see Hayley McKenzie and Kay Cook, ‘The Influence of Child Support and Welfare on Single Parent Families’ (2007) 45 Just Policy 21. 18 Ministerial Taskforce on Child Support, above n 1, 259–60.

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of women’,19 remains unclear—although from the outset it was evident that the dollar value of the reduction in child support payments would vastly exceed additional FTB payments.20 We first consider the background to the introduction of Australia’s national CSS and provide an overview of challenge and change over time to the CSS. We then look at the main ways in which parents work out their child support arrangements. Following this, we focus on key aspects of the current approach for establishing and assessing liability, as well as collection and enforcement, ending with a discussion of research and evaluation of the 2006–08 amendments to the CSS, which are the most significant changes since the introduction of the Scheme in the late 1980s. Although our central focus throughout the chapter is child support, other bases for liability to financially support a child when the CSS does not apply are considered more briefly. Consistent with the common pattern after parental separation, we refer throughout our discussion to child support payers as ‘fathers’ and payees as ‘mothers’. While the 2006–08 amendments made it more likely that mothers would be assessed to pay child support, female payers and male payees continue to comprise minority groups of only around 10 per cent in the separating population (11.8).21

11.2  The CSS In this section we look at why the CSS was established and its core components. We then consider the extent of its use (that is, how most parents work out their child support arrangements). Finally, we provide an overview of the pattern of ongoing controversy, review and amendment that has characterised the CSS since its inception. Our consideration of these aspects frames our more detailed examination of the operation of the current CSS in 11.4–11.8.

11.2.1 Background to the introduction of the CSS Before the CSS was established in 1988–89, ‘child maintenance’ was obtained via Family Court of Australia (FCoA) orders under FLA Part VII, Division 7.22 The CSS has now largely replaced the discretionary power of courts exercising jurisdiction under the FLA to make orders for child maintenance. There are, however, still cases that fall outside the statutory framework, to which the FLA provisions or the general law may apply (11.9). 19 Kay Cook and Kristen Natalier, ‘The Gendered Framing of Australia’s Child Support Reforms’ (2013) 27 International Journal of Law, Policy and the Family 28, 35. 20 Smyth and Henman, above n 11, p 10, Figure 1, indicating a drop in child support liability of $210 million partially offset by an extra $140 million payable in FTB (p 14). 21 Above n 5. 22 Before the FLA was enacted in 1975, child maintenance was left to the state legislatures. The FLA contained child maintenance provisions that, due to constitutional limits (see Chapter 2) applied only to children of married couples, so these cases came within the jurisdiction of the newly established FCoA. Maintenance for children born outside of marriage was left to the states until the referral of powers over children in the late 1980s. After that, the FLA provisions covered child maintenance of all children until the establishment of the CSS, which now applies in most cases. The main exception is ex-nuptial children in Western Australia, who are covered by substantially similar provisions of the Family Court Act 1997 (WA) due to that state’s non-referral (2.4.1). See further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘1.4 Western Australia and the Child Support Scheme’, .

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The backdrop23 to the enactment of Australia’s child support legislation was the escalating welfare cost to government, and thus to the taxpayer, of sole parent (that is, mother-headed) families, in a context of economic recession in the early 1980s. This was accompanied by increasing research and awareness in Australia and other Western countries regarding the post-separation economic disadvantage of children living in sole parent households, and the costs of children (in Australia, research by the Australian Institute of Family Studies (AIFS) in the 1980s on both these issues was particularly important).24 In the broader social context,25 increasing priority was being attached to individual freedom and equality (including gender equality), divorce rates were rising, greater state support was being offered for single mothers following the introduction of the supporting mothers’ benefit in 1973, and there was a general emphasis on the desirability of a ‘clean break’ for separating spouses post-divorce. Consistent with all of this, community views were not strongly in favour of fathers’ obligation to financially support their children post-separation. In the 1970s and 1980s, this extended to social acceptance of mothers’ reliance on social security and the view of many fathers that payment of child maintenance was a ‘top-up’ of state welfare benefits. There were also significant practical difficulties for mothers in applying to the FCoA for maintenance orders, including the cost and trouble of making a court application, court orders lacking in consistency and generally being for low amounts (reflecting broader community acceptance of social security reliance),26 and the need to apply for subsequent orders to update and enforce maintenance orders when they were made. The key policy goals of the Hawke Labor Government in introducing the CCS were to reduce child poverty in sole-parent-headed families and the resulting social security costs.27 The government sought to ensure that children of separated parents (including parents who have never lived together) receive a proper level of financial support from both of their parents (CS(A)A section 4(1)), with the underlying philosophy being a shift towards private (father) rather than state responsibility for children’s financial well-being.28 Further objects 23 See further Meredith Edwards with Cosmo Howard and Robin Miller, Social Policy, Public Policy: From Problem to Practice, Allen & Unwin, Crows Nest, 2001, pp 56–95; Regina Graycar, ‘Family Law and Child Support in Australia: The Social Security Connection’ (1989) 3 Australian Journal of Family Law 70; Stephen Parker, ‘Child Support in Australia: Children’s Rights or Public Interest?’ (1991) 5 International Journal of Law and the Family 24, 26–8. 24 In particular, in 1984, Kerry Lovering, then of the AIFS, published tables relating to the costs of raising children based on a ‘basket of goods approach’: Kerry Lovering, Costs of Children in Australia, Working Paper No. 8, Australian Institute of Family Studies, 1984, and in 1989 Donald Lee of Deakin University, working under contract for the AIFS, produced tables related to the costs of children based on an ‘expenditure survey’ approach: Donald Lee, A Program for Calculating the Direct Costs of Children Based on the 1984 ABS Household Expenditure Survey, Australian Institute of Family Studies, Melbourne, 1989. These approaches are discussed in Peter McDonald, ‘The Costs of Children: A Review of Methods and Results’ (1990) 27 Family Matters 18. 25 See further Kathleen Funder and Margaret Harrison, ‘Drawing a Longbow on Marriage and Divorce’ in Kathleen Funder, Margaret Harrison, and Ruth Weston (eds), Settling Down: Pathways of Parents after Divorce, Australian Institute of Family Studies, Melbourne, 1993, pp 13, 19–20. 26 Indeed, the FLA at that time expressly required judges to take into account the custodian’s eligibility for a pension, allowance or benefit (s 75(2)(f ) of the original FLA). As a result, the court would not order amounts of child maintenance that would result in social security being reduced; this effectively put a ceiling on orders of about $20 per week. 27 Belinda Fehlberg and Mavis Maclean, ‘Child Support Policy in Australia and the UK: Changing Priorities but a Similar Tough Deal for Children?’ (2009) 23 International Journal of Law, Policy and the Family 1. 28 Ministerial Taskforce on Child Support, above n 1, pp 43–4.

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were to ensure that child support obligations were determined consistently, according to parental capacity to provide that support and without mothers having to resort to court proceedings, and that children should share in changes in the standard of living of both their parents (CS(A)A section 4(2); current para (b) was added in 2008: 11.4)). To the extent possible within these objects, it was intended that the legislation be construed to permit parents to make private arrangements (CS(A)A section 4(3)).

11.2.2 Regulatory framework With the introduction of the CSS, state-administered, formula-based mechanisms replaced privately pursued, discretionary mechanisms in two stages (registration and collection, followed by introduction of the child support formula) between 1988 and 1989. Specifically, before the CSS was introduced, the FLA was amended to ensure child maintenance orders were made for more adequate amounts (in line with the Full Court’s criticism of the pre-existing position in Mee and Ferguson).29 Stage 1 of the CSS commenced on 1 June 1988, and involved the establishment of the CSA (now DHS-CS but still sometimes referred to as CSA) and the amendment of social security legislation to underline the new emphasis on accessing private sources of financial support.30 Those with court orders for periodic child and spousal maintenance were (and still are) able to register their orders and thus take advantage of the new systems for collection and enforcement of maintenance obligations. Stage 2 commenced on 1 October 1989 when the child support formula came into effect, applying to all children whose parents separated after that date, were born after that date, or who had a sibling born after that date. As just noted, a central aspect of the inception of Australia’s national CSS was the establishment of the CSA as an agency of the Federal Government to administer the assessment and collection of child support. The CSA was originally part of the Australian Taxation Office (ATO), as it was envisaged that in most cases child support would be deducted from the wages of the father, in order to reduce collection and enforcement difficulties. However, the relationship between the ATO and the CSA was difficult from the outset.31 In October 1998, the CSA was relocated to the (now) Department of Social Services. From October 2004, reflecting wider changes in Federal Government departmental responsibilities, the CSA was relocated (along with a number of other human service delivery agencies, including Centrelink) in the newly created Department of Human Services (DHS). At that point, DHS became responsible for service delivery with the Department of Social Services being responsible for policy development.32 Despite 29 In the Marriage of Mee and Ferguson [1986] FamCA 4. 30 See further Meredith Edwards with Cosmo Howard and Robin Miller, above n 23. 31 The ATO resisted the reforms, was concerned about its role as ‘it had never been in this kind of business before’, and, even at the Scheme’s design phase in 1986, a political compromise was made involving the ATO being responsible for collection but not distribution of child support payments, as had been originally intended (instead the Department of Social Security (now DHS-Centrelink) was given responsibility for distribution). Insufficient thought was given before implementation to the ‘major cultural shift’ and systems challenges involved for the ATO: Edwards, Howard and Miller, above n 23, pp 65, 74, 84, 89–90. 32 Child Support Agency, Child Support Scheme: Facts and Figures 2004–05, Australian Government, AttorneyGeneral’s Department, Canberra, 2005, pp 10–1, ; Department  of Social Services, Australian Government, The Child Support Scheme, .

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these changes, DHS-CS necessarily retains strong links with the ATO; these links are particularly evident in the compliance and enforcement context (11.6). The Child Support Registrar (the Registrar), as the head of DHS-CS, administers the child support legislation (Child Support (Registration and Collection) Act 1988 (Cth) (CS(RC)A) section 10). Most decisions of the Registrar can be objected to by parents via a process of internal review conducted by a Review Officer (CS(RC)A Part VII).33 From 1 January 2007, appeals from decisions of the Registrar usually go to the Social Security Appeals Tribunal (SSAT) (CS(RC)A Part VIIA), in contrast to the previous approach, which was less transparent and more complicated.34 Appellants who are dissatisfied with the SSAT’s decision can appeal from the SSAT to a court (the FCoA, the Federal Circuit Court of Australia (FCCoA), the Family Court of Western Australia, or a court of summary jurisdiction: CS(A)A section 99) on a question of law (that is, judicial review, to test the lawfulness of a decision).35 It is still possible to go directly to court on some issues (for example, declarations of parentage and applications to set aside child support agreements). The advantages of external administrative appeal in the child support context include the encouragement of greater accountability of DHS-CS and improvements in the consistency of decisions (as SSAT decisions are readily accessible).36 There was concern before the 2007 changes that the SSAT would be an inappropriate review body for child support disputes as its usual work had involved a dispute between an individual and the State.37 In contrast, both parents and the Registrar are parties to SSAT proceedings (CS(RC)A section101(1)).38 The SSAT’s jurisdiction is now well-established,39 but its decisions40 and the manner and extent to which SSAT processes are accommodating disputing parties in child support appeals have not yet been the subject of research.

11.2.3 How do most parents work out child support? As noted in the previous section, a central aspect of the CSS from its inception was the establishment of the CSA (now DHS-CS) as an agency of the Federal Government to 33 See further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘4.1.2 Decisions Made under the Assessment Act to Which a Parent May Object’, . 34 Comprising internal and semi-internal review mechanisms (introduced in a piecemeal way over the years), and external review via a range of avenues depending on the issue: Tammy Wolffs, ‘External Review of Child Support Agency Decisions: The Case for a Tribunal’ (2004) 43 AIAL Forum 55. 35 On the distinction between a question of law and a question of fact, see further Child Support Registrar & Crabbe [2014] FamCAFC 10. If the decision is about the parents’ percentage of care of a child for a period after 1 July 2008, an appeal can be made to the Administrative Appeals Tribunal (AAT) or to a court (CS(RC)A s 103VA). 36 Wolffs, above n 34. 37 Family Law Section, Law Council of Australia, Submission No 22 to Senate Standing Committee on Community Affairs, Parliament of Australia, Inquiry into Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Bill 2006, 10 October 2006. 38 SSAT, ‘Review in a Decision about Child Support’, . 39 The SSAT received 1,972 applications for review of child support decisions in 2012–13, compared to 10,199 applications to review Centrelink decisions: SSAT, Annual Report 2012–13, Commonwealth of Australia, Melbourne, 2013, p 8. 40 Which are released on the Australian Legal Information Institute (AustLII) website: .

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administer the assessment and collection of child support. With few exceptions, an application for a child support assessment will need to be made (11.3.3). Parents, however, have since the introduction of the CSS been able to make their child support arrangements in three ways that in practical terms allow them to control the level of bureaucratic (that is, DHS-CS along with ATO and Centrelink) involvement in the substance and enforcement of their child support (and other maintenance) arrangements: 1. Child Support Collect: DHS-CS makes an assessment (11.4), accepts a child support agreement (11.5.3) or registers a court order (including child maintenance orders (11.6), and spousal/de facto maintenance orders (Chapter 15), for periodic payments) and collects and transfers child support (and/or maintenance) payments. 2. Private Collect: DHS-CS makes an assessment, accepts a child support agreement or registers a court order, but payments are made directly between the parents. 3. Self-Administration: There is no DHS-CS involvement. This includes cases where parents agree privately regarding payment and collection as well as cases where no child support is sought by one parent from the other.41 Most separated families have some contact with DHS-CS in the course of working out their child support arrangements. Contact is commonly initiated after separation by mothers who require financial assistance, contact DHS-Centrelink, and are informed of their obligation to seek child support to avoid a reduction in their FTB A payments (the Maintenance Action Test: 11.3.3.1), prompting an application for a child support assessment (11.5). Other parents may phone DHS-CS or access online information, including the child support estimator.42 Most separated parents (around 85 per cent)43 also register with DHS-CS, usually for child support assessment; less commonly a private agreement or court order for child support,44 child maintenance or spousal or de facto maintenance is registered. 41 House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003, p 127. 42 Department of Human Services, Australian Government, Online Estimators, . 43 This figure seems reliable on the basis of available information, but estimates vary: email from Maria Vnuk, Department of Social Services, to Belinda Fehlberg, 18 September 2012. For example, the figure given in the CSA submission to the Every Picture Inquiry in 2003 was 85–90% (House of Representatives Standing Committee on Family and Community Affairs, above n 41, p 127), while Australian Bureau of Statistics (ABS) data (Family Characteristics Survey 2009/10) indicate ‘[c]hild support arrangement status was reported for approximately 66% of the 1.1 million children in Australia who had a natural parent living elsewhere in 2009–10. Of the 697,000 children for whom child support status was reported, 76% were under a Child Support Agency (CSA) arrangement, 14% were under another form of arrangement and 10% were not covered by any type of arrangement’. The 2003 data are not recent, and the ABS data are not so reliable on child support as the question was unable to be answered for around one-third of children and the 14% with ‘another form of arrangement’ may have been describing either a child support agreement or self-administration. 44 For example, a departure order (11.6.3) made in the context of parenting and/or property orders. See further Federal Circuit Court of Australia, Child Support Applications, .

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Once an assessment is in place DHS-CS’s role is likely to diminish as Private Collect is commonly utilised (in 2012–13, 54 per cent of parents used Private Collect arrangements,45 although the Australian Institute of Family Studies Longitudinal Study of Separated Families (LSSF) Wave 3, involving telephone interviews in late 2012 with 9,028 parents separating after the 2006 amendments (comprising 5,755 members of the original sample (interviewed in late 2008) and a ‘top-up’ sample of 3,273 parents) suggested a more longterm picture, finding that ‘the rates of Child Support Collect increased progressively across the survey waves, while Private Collect arrangements decreased’).46 An application for Private Collect can only be made to DHS-CS by the payee or by parents jointly, and is encouraged by DHS-CS.47 Parents with Private Collect arrangements are free to organise their child support transfers in any way they choose in terms of frequency (periodic or otherwise), form (cash, bank transfer, cheque or non-agency payments (11.5.4.1)) and amount,48 so the amount actually paid may be less than the assessed amount and/or be paid irregularly. The payee can contact DHS-CS to change to Child Support Collect if problems arise, and while the LSSF Wave 3 findings just mentioned indicate that some parents do so, other research suggests that this is not always the course taken and that the DHS-CS assumption that Private Collect arrangements are fully compliant is unsound (11.2.4). It appears reasonably common for parents to have a child support assessment that they do not follow for various reasons. Child Support Collect arrangements can operate in relation to child support assessments as well as agreements or court orders registered with DHS-CS,49 as long as payments are to be made periodically (CS(RC)A sections 17 and 18; CS(A)A section 95)). It is most likely to be used when parents need additional DHS-CS support—for example, due to ongoing acrimony between parents, the mother’s fear of family violence and/or the father’s noncompliance with his child support obligations. The father elects whether to make weekly, fortnightly or monthly payments and may make payments to DHS-CS in a variety of ways, including employer deduction (if the father is a PAYE (‘pay as you earn’) wage earner, and child support is deducted by the employer along with tax and remitted to DHS-CS, usually monthly; otherwise payments have to be made directly to DHS-CS), transfer from a bank account, credit or debit card, or cheque. Non-agency payments (11.5.4.1) can also be credited against child support liability in Child Support Collect cases.50 Payments made 45 Department of Human Services, Australian Government, ‘Chapter 4: Families, People Looking for Work, Studying or Unable to Work, and Older Australians’ in Annual Report 2012–13, 2013, p 74, . 46 Qu, Weston, Moloney, Smyth, Kaspiew and Dunstan, above n 5, p 121. 47 This is evidenced by the reduction in DHS-CS’s collection role over time due to movement of parents with successful payment track records to Private Collect from the mid-1990s: Ministerial Taskforce on Child Support, above n 1, pp 175–6. 48 See further Department of Human Services, Australian Government, Collection of Child Support Payments Privately (Private Collect), . 49 Department of Human Services, Commonwealth Government, Child Support Payment, . 50 See further Department of Human Services, Commonwealth Government, Collection of Child Support Payments by Us (Child Support Collect), 19 September 2013, .

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through Child Support Collect are distributed to the mother by DHS-CS. Amount details are electronically transmitted to DHS-Centrelink once payment is disbursed so that DHSCentrelink will know whether any child support (or maintenance) is being paid to the payee, and will reduce the payee’s family assistance payments accordingly by applying the ‘Maintenance Income Test’ (11.3.3.1). ‘Self-administration’ arrangements are more likely to be utilised by parents who enjoy a level of wealth such that they are not eligible for FTB A, prefer to forsake their full FTB A entitlements rather than seek child support (for example, due to fear of the other parent) and/or seek to protect their financial privacy and to avoid any involvement of government bureaucracy in their lives. The main risk with such arrangements is that either parent could apply for an assessment at any stage. In addition to these varying levels of DHS-SC involvement, the child support formula is modified or can be departed from in some circumstances, and there is also flexibility regarding the timing and form of payments, including the option of contracting out of the CSS by using a binding child support agreement. These mechanisms are considered at 11.5. Considerable flexibility therefore exists in the CSS for parents to organise their child support in ways that suit their particular circumstances (although there are also limited but improving options for parents who seek professional support to work out their arrangements together, which is likely to mean that options that may be appropriate and available are not considered).51 Flexibility also makes compliance (that is, the extent to which payers make their child payments on time and for the full amount payable) difficult to assess, although it is certainly an issue of ongoing concern (11.2.4, 11.8.2). Recent empirical research underlines these complexities. Most recently, analysis of LSSF Wave 3 found that, most payers found that, payments ‘were most often made in full and on time’.52 However, and consistent with previous research,53 father payers were more likely to report this than payee mothers.54 Also the proportions reporting full compliance were higher in Wave 1 than in Waves 2 and 3, suggesting that full compliance rates declined over time.55 Non-compliance in both amount and timing of payments was most likely to be reported by mothers whose child never saw the father than by other mothers, and by payees who experienced family violence.56 Consistent with previous research,57 mother payees were less likely to comply with their 51 Lawrie Moloney, Bruce Smyth and Kim Fraser, ‘Beyond the Formula: Where Can Parents Go to Discuss Child Support Together?’ (2010) 16 Journal of Family Studies 33. 52 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 5, p 123. 53 Most recently, see de Maio et al., above n 4, pp 109–10. See also Ministerial Taskforce on Child Support, above n 1, p 81; Kaspiew et al., above n 5, pp 194–7; Lixia Qu and Ruth Weston, Parenting Dynamics after Separation, above n 5, pp 124–8. Recent research has found that payers and payees calculate child support differently (payers are more likely to include non-periodic payments in their calculations), which may at least partly explain the differences: Smyth et al., below n 63 and accompanying text. 54 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 5, pp 122–5. 55 ibid., p 123. 56 ibid., pp 126–8. 57 De Maio et al., above n 4; Maria Vnuk, ‘Merged or Omitted? What We Know (or Don’t) about Mothers Who Pay or Should Pay Child Support in Australia’ (2010) 16 Journal of Family Studies 62. See also Christine Millward, Monica Campo and Belinda Fehlberg, ‘Mothers Who Are Liable to Pay Child Support’ (2011) 86 Family Matters 62.

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child support obligations than fathers.58 Previous research suggests that payee mothers comprise a complex group: Non-resident mothers are generally poorer than non-resident fathers; some mothers voluntarily give up the primary care of their children, believing that their children’s father is in a better position financially to raise their children. There is also emerging evidence—at least in Australia—that non-resident mothers are more likely to report a fearful parental relationship than resident mothers, pointing to the potential for coercion to drive parenting roles … Related to their generally weaker economic circumstances, or the tendency for other resident children to be in the household, non-resident mothers are less likely to pay child support than non-resident fathers, but often provide in-kind contributions such as clothing, toys, and outings.59

Qualitative research sheds further light on the circumstances surrounding compliance. For example, in Fehlberg and colleagues’ qualitative study, conducted after the most recent 2006–08 child support amendments and involving repeat interviews with 60 Victorian separated parents: Most parents said that a [DHS-CS] assessment was in place, but said it was paid privately (consistent with recent data on [DHS-CS’s] caseload [reference omitted]). About half of liable parents paid at or (in a minority of cases) above the assessed rate, while half paid below the rate or not at all. Those not paying at all or underpaying included [Child Support] Collect cases … as well as Private Collect cases … Variable and unreliable financial support often occurred in the context of poor post-separation parenting relationships.60

A key finding of their three-year study was that ongoing financial support of children ‘depended on several factors: the quality of the post-separation relationship, the role of new partners, and parents’ level of commitment to their children (including their willingness and capacity to financially support them)’.61 Of these factors, fathers’ willingness to pay emerged as a particularly significant factor. Similarly, Kristin Natalier, Hayley McKenzie and Kay Cook’s examination of women’s experiences of child support, drawing on data from three qualitative research projects collected before major CSS amendment in 2008, found that ‘those who regularly received their full entitlements tended to have at least civil relationships with their ex-partners’ and ‘a meaningful role in the lives of their children’. They too found that while the child support formula provided an initial starting point for deciding how much child support would be transferred this amount was often negotiated down with reference to each partner’s financial circumstances, care of children, and in-kind support, to arrive at a figure that parents considered was ‘right’ or ‘fair’ given the parents’ circumstances, their relationship and the needs of their children (‘balanced reciprocity’).62 58 Qu, Weston, Moloney Kaspiew and Dunstan, above n 5, pp 122–5. 59 Bruce Smyth and Maria Vnuk, ‘Non-resident Parents’, in George Ritzer (ed), Encyclopedia of Sociology (2nd edn), forthcoming, Blackwells Publishing, MA. 60 Belinda Fehlberg and Christine Millward, ‘Post-Separation Parenting and Financial Arrangements over Time: Recent Qualitative Findings’ (2013) 92 Family Matters 29, 37. 61 Fehlberg, Millward, Campo and Carson, above n 8. 62 Natalier, McKenzie and Cook, above n 8.

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Added this is Bruce Smyth and colleagues’ recent finding, in the context of a broader study in the impacts of the 2006–2008 child support amendments and based on a national random sample of DHS-CS clients, that fathers and mothers calculate child support differently: fathers are more likely to include a wider range of expenditure, including non-periodic payments, in their calculations.63 This finding is consistent with earlier research indicating differential reporting by mothers and fathers regarding child support compliance. Overall, the research seems to suggest that when post-separation relationships are civil, parents are more likely to take a contextual view of their child support arrangements, focusing on how well their post-separation arrangements are working overall rather than on the exact dollar value of child support transfers. Conversely, as Cook and colleagues observe, while ‘balanced reciprocity’ may create outcomes that parents consider ‘right’ or ‘fair’, ‘the flexibility and informality used by many parents to manage child support transfers can lead to financial and emotional losses to recipients and children in ways that do not align with the spirit of the [CSS] objectives’.64 For many women in their three studies, ‘there was a marked difference between formal arrangements and the amount of money they received’. In particular, non-payment, late payment and irregular payment constrained mothers’ ability to budget and imposed an administrative burden on them due to the need to frequently engage with Centrelink to report the payment problems they experienced, sometimes leading low-income women in this position to withdraw from the child support system: ‘the financial support provided—and the associated reduction in Centrelink benefits—was often easier to accommodate in women’s lives than the “hassle” and possible harms that accompanied a dogged pursuit of payments’.65 Their research suggested that, for low-income women, the reliability and lesser administrative burden associated with Federal Government family assistance was preferable to the burden associated with pursuit of child support. In contrast, qualitative research by Kristin Natalier and Belinda Hewitt observed that fathers interviewed for their study ‘attempt to define child support as a gift—a payment that emphasises the power of the payer and the obligation of the receiver—but struggle to do so in legal and bureaucratic structures that position its receipt as an entitlement’.66 This struggle appeared most evident in cases involving conflict over child support payments and increased contact with DHS-CS, in which fathers described their sense of loss of control over the amount, regularity and use of child support payments they made, and their fear that their contributions to their children’s financial support were rendered invisible. The payment of child support thus had social as well as financial costs for fathers, ‘constraining their identities and practices as fathers by limiting their authority over how the money is 63 Bruce Smyth, Bryan Rodgers, Jeromey Temple, Vu Son, Marian Esler and Allan Shephard, ‘An Ex-Couples’ Approach to Understanding Bargaining over Child Support and Parenting Time’, paper presented at the Australian Institute of Family Studies Conference, Melbourne, 7–9 July 2010. 64 Natalier, McKenzie and Cook, above n 8, unpaginated. 65 See further Hayley McKenzie, Accepting the Unacceptable: Patriarchal Hegemony and Child Support Arrangements, PhD Thesis, Deakin University, 2012, . 66 Natalier and Hewitt, above n 8, p 489.

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spent’.67 The observations emerging from these qualitative studies underline that ‘social, cultural and gendered values of money’68 have an impact on parents’ experiences of the CSS, including on their willingness to comply.

11.2.4 Ongoing controversy, review and amendment Since its establishment, ongoing controversy has surrounded the operation and effectiveness of Australia’s CSS, resulting in frequent review and amendment.69 In this section we provide an overview of the main changes that have taken place, to provide context for our more detailed consideration of the current operation of the CSS in 11.3–11.7. Despite ongoing controversy, there is broad consensus that the introduction of the CSS led to community acceptance of separated parents’ financial responsibility to their children. The Ministerial Taskforce on Child Support (the Taskforce), appointed in 2004 to conduct the most major review of the CSS since its inception, considered in its 2005 report that the CSS ‘had been successful in promoting community acceptance of the idea of child support obligations’.70 This conclusion gained some support from research conducted for the Taskforce by Bruce Smyth and Ruth Weston, which suggested that there is now general community support for the idea that ‘child support should always be paid—regardless of the gender or financial circumstances of the non-resident parent’71 (although the resident/non-resident parent dichotomy has become more complicated and blurred following the 2006 shared parenting amendments and the 2006–08 child support changes: while the legislative pathway promotes shared time outcomes and both parents are now treated as notional ‘payers’ (11.4), time sharing is not the norm (Chapter 6)). The conclusion that the CSS had increased community acceptance of child support obligations was also supported by the Taskforce’s analysis of pre and post child support compliance data—data that although limited suggested that compliance had improved following the Scheme’s introduction.72 The Taskforce also referred to data suggesting that child support had reduced child poverty in sole parent families73 and had reduced the cost of relationship breakdown to taxpayers.74 Continuing debate, however, has surrounded the extent to which child support operates fairly, or achieves its original policy goals of reducing child poverty in sole parent families and reducing the cost to the state and taxpayer of their support. Child support is 67 68 69 70 71

ibid., p 502. ibid., p 491. Ministerial Taskforce on Child Support, above n 1, p 48. ibid., p 2. Bruce Smyth and Ruth Weston, A Snapshot of Contemporary Attitudes to Child Support, Research Report No. 13, Australian Institute of Family Studies, Melbourne, 2005, p 28. 72 Ministerial Taskforce on Child Support, above n 1, pp 80–1. 73 ibid., pp 76–7. There is also some evidence that compliance has an impact on children’s health, namely their school functioning, conduct problems, total mental health problems and involvement in activities: Kay Cook, E Davis and B Davies, ‘Discrepancy Between Expected and Actual Child Support Payments: Predicting the Health and HealthRelated Quality of Life of Children Living in Low Income, Single Parent Families’ (2008) 34 Child: Care, Health and Development 267. 74 Ministerial Taskforce on Child Support, above n 1, p 76.

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also consistently among Australia’s ‘top five’ most complained about statutory schemes,75 despite ongoing efforts to improve service delivery and customer satisfaction (11.7).76 Specifically, fathers (and their new partners) have complained (particularly before the 2006–08 amendments: 11.7) that child support assessment operates unfairly, requiring them to pay too much and creating financial hardship for them and their new families.77 In contrast, mothers’ complaints have related mainly to inadequate compliance and enforcement: in particular, that self-employed fathers avoid their child support obligations by minimising and/or lying about their taxable income, that some fathers leave jobs or refuse better paid work to avoid paying child support, and that inadequate action is taken by DHS-CS to pursue non-paying fathers.78 Both mothers and fathers complain about the operation of DHS-CS (with complaints commonly relating to bureaucracy, inefficiency and poor service delivery, despite ongoing efforts of DHS-CS to address these issues).79 To some extent, the complaints of mothers and fathers reflect differential reporting based on gender and liability: as already noted, research has consistently found that fathers are more likely to report paying child support than mothers are to report receiving it.80 Further complexity surrounds the interpretation of DHS-CS data that may shed light on the accuracy of parents’ complaints.81 For example, DHS-CS assumes full compliance in Private Collect cases (being cases in which DHS-CS assesses liability and parents make their own payment arrangements, and comprising the majority of its caseload: 11.2.3)) on the assumption that parents would otherwise seek DHS-CS involvement,82 but empirical research suggests a more complex and variable picture regarding compliance (11.2.3). As a result, caution needs to be exercised when reading and interpreting DHS-CS compliance data, which are often based on all cases registered with it.83

75 The ‘top five’ agencies, receiving 76% of the total number of complaints, were Centrelink (28%), Australia Post (18%), the ATO (12%), the CSA (10%) and Department of Immigration and Citizenship (8%): Commonwealth Ombudsman, ‘Chapter 4: Agencies Overview’ in Annual Report 2011–12, 2012, p 39. 76 Department of Human Services, Australian Government, ‘Chapter 3: Transforming and Delivering Services’ in Annual Report 2012–13, 2013, pp 55–56, . 77 See, e.g., House of Representatives Standing Committee on Family and Community Affairs, above n 41, Recommendation 26, pp 174–5; Bruce Smyth and Ruth Weston, Financial Living Standards after Divorce: A Recent Snapshot, Research Paper 23, Australian Institute of Family Studies, Melbourne, 2000; Ministerial Taskforce on Child Support, above n 1, p 79. 78 Ministerial Taskforce on Child Support, above n 1, p 79. 79 ibid. More recently see Belinda Fehlberg, Christine Millward and Monica Campo, ‘Post-Separation Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214; Department of Human Services, Commonwealth Government, above n 76. 80 Above n 53. 81 For example, the most recently published detailed data from DHS-CS (then the CSA) indicated that by 2009 91.8% of liabilities for the period 1988–2009 had been met in Child Support Collect cases (i.e., where DHS-CS collects child support from the father and pays it to the mother: 11.6.1) but on closer examination the picture seemed less rosy: in 2009, 12% of Child Support Collect payers had paid nothing at all and only just under 50% had paid in full: Child Support Agency, above n 11, pp 41, 52, 54. 82 ibid., p 42. 83 For example, Department of Human Services, Australian Government, Annual Report 2012–13, 2013, pp 153–4, above n 76.

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Even taking into account data interpretation difficulties, it is clear that changes following the establishment of the CSS have mainly favoured fathers. In summary (see further 11.4–11.5), prior to major amendment in 2006–2008 incremental changes favouring fathers included reducing the amount of income that mothers could earn before their child support payments decreased, improving the position of fathers with shared time by in effect lowering the threshold at which their child support payments decreased from 40 per cent to 30 per cent of time, improving the position of fathers with new children to support, and allowing fathers a gradually increasing level of control over how their child support payments were spent. In addition, requesting or requiring parents to move from Child Support Collect to Private Collect was a process change that was likely to benefit fathers. Key changes working against fathers were the introduction of a minimum payment and widening the definition of ‘taxable income’ for child support purposes. This trend began to intensify from 2003 with the House of Representatives Standing Committee on Family and Community Affairs (the 2003 Committee) report on child custody arrangements, Every Picture Tells a Story.84 The Committee’s terms of reference had included consideration of whether the child support formula ‘worked fairly for both parents, in terms of their care of, and contact with, their children after separation’,85 leading to its ‘extensive work in establishing the wide ranging nature of the problems with the [CSS]’ and a recommendation that a Ministerial Taskforce was needed to undertake ‘the detailed research and modelling tasks needed to back up the re-evaluation’.86 However, it was evident throughout the evidence-giving process that although witnesses and Committee members saw, and presented, themselves as acting in children’s best interests,87 Committee members interpreted personal anecdotes and social sciences evidence in a manner that was particularly attuned to the concerns of fathers regarding child support: Data were characterised as legitimate when confirming an existing stock story of fathers’ disadvantage in an unfair child support system; these data were treated as evidence of a widespread social problem. Data that challenged the stock story were rejected as offering an inappropriate basis for policy reform.88

This pattern further intensified from 2005, when the Taskforce was appointed to review the operation of the CSS following a recommendation to this effect of the 2003 Committee. While the Taskforce undertook a detailed review and commissioned three reports involving economic modelling on the costs of children, many of the changes it recommended were not underpinned by the ‘detailed research’ recommended by the 2003 Inquiry, with the result that major change occurred ‘in the absence of a solid evidence base on which to guide policy reform’.89 In addition, the influence of fathers’ interests in shaping the reform process 84 House of Representatives Standing Committee on Family and Community Affairs, above n 41, Recommendation 26, pp 174–5. 85 ibid., p xvii. 86 ibid., p 173, [6.211]. 87 Fogarty and Augoustinos, above n 12; Ministerial Taskforce on Child Abuse, above n 1. 88 Kay Cook and Kristin Natalier, ‘Selective Hearing: The Gendered Construction and Reception of Inquiry Evidence’ (forthcoming, Critical Social Policy). 89 Kay Cook, Hayley McKenzie and Tess Knight, ‘Child Support Research in Australia: A Critical Review’ (2011) 17(2) Journal of Family Studies 110, 111.

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was evident from the outset. Compared to the 2003 Inquiry’s neutrally cast child support terms of reference, the 2005 Taskforce’s terms of reference reflected a clearer emphasis on addressing ‘fairness’ from the perspective of fathers.90 Most obviously, its terms of reference did not include compliance and enforcement (issues of most concern to mothers) while key concerns of fathers were reflected in the terms of reference (with the exception of a direction to consider increasing the minimum payment). While the Taskforce (severely pressed for time, as the 2003 Inquiry had been) nevertheless included in its report a chapter on enforcement and compliance-related issues,91 this comprised 11 pages in a report of 265 pages. Indeed, a recent analysis by Kay Cook and Kristen Natalier argues that the Taskforce approached its task through a gendered (male) lens, with the overall result that: Those recommendations [of the 2003 Inquiry] that sought to reduce the financial autonomy of men or promote the financial interests of women were curtailed whereas those that sought to benefit men were pursued to their fullest and enacted in legislation.92

So, for example (see further 11.4–11.6), a 2003 recommendation to increase the minimum payment was revised downwards, while recommendations serving fathers’ financial interests that were accepted included lowering the cap on payers’ assessable income, providing for reduced child support to be payable by fathers who spend at least 14 per cent of time with their children and allowing fathers to exercise greater control over how their child support payments are spent. A further recommendation likely to be most relevant to fathers given their greater opportunity to participate in paid work related to re-establishment costs—that is, allowing parents to apply to have up to 30 per cent of additional income earned in the first three years after separation and outside the ordinary course of events (for example, working overtime) excluded from their adjusted taxable income for child support purposes.93 The recommendations of the Taskforce were largely accepted by the Howard Federal Government in legislative amendments rolled out between 2006 and 2008, culminating in the introduction from 1 July 2008 of the ‘new’—and current—formula (11.4–11.5).94 The argument usually made in response to the pattern of amendment just outlined is that change has amounted to necessary attempts to remedy unfairness to fathers resulting from the operation of the CSS as originally established.95 Yet this does not sit comfortably with the continuing greater financial disadvantage of separated mothers as a group compared to fathers as a group. Certainly, separated fathers are often on low incomes and in receipt of government income support, but as a group fathers are in a stronger financial 90 Ministerial Taskforce on Child Support, above n 1, p 3. See further Cook and Natalier, above n 19. 91 Ministerial Taskforce on Child Support, above n 1, chapter 10. 92 Cook and Natalier, above n 19, p 30. 93 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.5.2 Additional Income Earned Post-Separation’, . 94 For a helpful overview of the 2006-08 changes, see Patrick Parkinson, ‘The Future of Child Support’ (2008) 33 University of Western Australia Law Review 79. 95 For example Ministerial Taskforce on Child Support, above n 1.

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position after separation than are mothers.96 Indeed, research consistently finds that ‘single-mother families continue to be among the most financially disadvantaged groups, not only in Australia but also in other developed countries’97 and face an ‘elevated risk of poverty’ (see also Chapter 10).98 Child support payments are therefore likely to be of particular importance for mothers and the children living with them.99 The extent to which Federal Government family assistance payments (along with ‘one off ’ payments under the Rudd Labor Government’s Stimulus Package in 2009) improve the position is not clear and need to be seen in the light of other government policies that add to economic strain for sole parent families, particularly the introduction of ‘welfare-to-work’ rules from July 2006 requiring most single parents with school-aged children to be employed or seeking employment for 15 to 25 hours a week in order to receive their income support payment.100 Following the 2006–08 amendments calls for reform appeared to have abated; this was not surprising given early research indicating that, in broad terms, the amendments benefited fathers more than mothers (11.7). Indeed, the LSSF Wave 3 findings indicated that ‘in all survey waves, father payers were the most likely of all groups to consider the current amount of child support to be very or somewhat fair to them’. Fathers who paid the lowest mean amount of child support were also the most likely to consider the child support amount they were required to pay to be very fair.101 Most payers thought their payments were affordable, but nearly half of the payer fathers surveyed ‘thought that the amount they were paying was more than their children needed.’102  96 On the most recent CSA data, the average taxable income of CSA payers (CSA Collect and Private Collect) was $47,044 per annum (the median was $40,677). However, the average taxable income of payees was much lower again: $22,818 (median $16,350): Child Support Agency, above n 11, 32. A similar pattern existed in 2003: House of Representatives Standing Committee on Family and Community Affairs, above n 41, p 16. Indeed, this is the longstanding position: Jerry Silvey and Bob Birrell, ‘Financial Outcomes for Parents after Separation’ (2004) 12 People and Place 46; Tammy Wolffs and Leife Shallcross, ‘Low Income Parents Paying Child Support: Evaluation of the Introduction of a $260 Minimum Child Support Assessment’ (2000) 57 Family Matters 57.  97 Qu and Weston, above n 5, see chapter 2: ‘Financial Support of Children after Parental Separation’, pp 26–7.  98 Australian Council of Social Service (ACOSS), Poverty in Australia ACOSS, Strawberry Hills, 2012, p 18 .  99 AIFS research examined the impact of the CSS on living standards and found that while child support payments did not appear to be creating financial hardship for the majority of wage-earning men in the sample, they had an important impact in lifting those women and dependent children receiving them above the Henderson poverty line: Smyth and Weston, above n 5, pp 13–14. See also Maggie Walter, Belinda Hewitt, Kristin Natalier, Maryann Wulff and Margaret Reynolds, ‘The Implications of Child Support for Housing after Relationship Dissolution’ (2010) 16 Journal of Family Studies 77, 77, which analysed data from Wave 4 of the Household, Income and Labour Dynamics in Australia (HILDA) survey (the final sample comprised 1,043 separated parents (637 resident parents, 406 non-resident parents)) and found that ‘for resident parents the receipt of child support payments above $75 per week was significantly associated with better housing circumstances. By contrast, the payment of child support was not significantly related to housing outcomes for non-resident parents’. 100 Ministerial Taskforce on Child Support, above n 1, pp 2–3, 20, 105–9. On the impact of these requirements on mothers, see Kay Cook and Andrew Noblet, ‘Job Satisfaction and “Welfare-to-Work”: Is Any Job a Good Job for Australian Single Mothers?’ (2012) 47 Australian Journal of Social Issues 203; Teresa Grahame and Greg Marston, ‘Welfare-to-Work Policies and the Experience of Employed Single Mothers on Income Support in Australia: Where Are the Benefits?’ (2012) 65 Australian Social Work 73. For an assessment of the impact of the new child support formula in the light of several other significant policy and economic changes taking place at around the same time, see Vu Son, Bryan Rodgers and Bruce Smyth, ‘The Impact of Major Child Support Reform on the Financial Living Standards of Separated Families in Australia’ (2014) (forthcoming) 29 Australian Journal of Family Law. 101 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 5, p 129. 102 ibid., p 131.

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Recently, the prospect of child support reform has arisen again. In November 2013 the newly appointed chair of the Senate Legal and Constitutional Affairs Committee, George Christensen MP said that he was ‘already in talks’ with the Social Services Minister Kevin Andrews, and the Attorney-General, George Brandis, ‘about a review of the Child Support Agency [sic] and how to make the system fairer’.103 On 27 April 2014, the Minister for Social Services, Kevin Andrews, asked the House of Representatives Standing Committee on Social Policy and Legal Affairs to conduct an inquiry into the Child Support Program, which would include an online anonymous questionnaire that people with experience of the CSP could complete: ‘The questionnaire enables people with an experience of the Child Support Program to make a personal contribution to the inquiry, and will enable the Committee to understand the individual experiences of a broad range of people’.104 The  Committee appears to have assumed the veracity of data collected in this manner. There are also indications that, once again, it is the complaints of fathers that have led to the establishment of the Inquiry.105

11.3  The CSS: Preliminaries Since its establishment in the late 1980s, the CCS’s central components have been (1) a statutory formula for calculating the amount of child support payable (CS(A)A) and (2) administration of the program by DHS-CS (previously the CSA) (CS(RC)A). In this section we focus on key preliminary issues relevant to whether the CSS will apply to a particular case. In following sections we consider the operation of the basic formula (11.4), the ways in which the CSS offers flexibility regarding both assessment and collection (11.5) and enforcement (11.6).

11.3.1 Who does formula assessment apply to? Central to the CSS is a formula for assessment of child support for children whose parents are separated (including parents who have never had a couple relationship or lived together). An application for formula assessment can be made in relation to children who are under 18 years of age, not living in a married or de facto relationship and have a territorial connection with Australia (in essence, an Australian citizen, or ordinarily resident in Australia, and/or present in Australia on the day the application is made: CS(A)A 103 APN Newsdesk, ‘Christensen Takes Key Role in Social Policy, Legal Affairs’, The Chronicle (online), 11 November 2013, . 104 Parliament of Australia, House of Representatives Committees, Standing Committee on Social Policy of Legal Affairs, Parliamentary Inquiry into the Child Support Program, 2014, . 105 ‘George slams complex child support system: “Time for an overhaul?”’ (25 July 2012), the Nationals for Regional Australia website, . The media release is related to research on parents’ understanding of child support and FTB rules on care thresholds: Bruce Smyth, Bryan Rodgers, Vu Son, Liz Allen and Maria Vnuk, ‘Separated Parents’ Knowledge of How Changes in Parenting-Time Can Affect Child Support Payments and Family Tax Benefit Splitting in Australia: A Pre-/Post-Reform Comparison’ (2012) 26 Australian Journal of Family Law 181. Christensen did not understand or acknowledge that the child support reforms were introduced by the Howard Coalition Government. His media release was intended as an attack on the previous Labor Government.

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section 24).106 As just noted, the relationship status of the child’s parents is irrelevant, apart from the requirement that they are separated (see next paragraph). If a child turns 18, is still in full-time secondary education and a formula assessment is in place, an application may be made to the Child Support Registrar for an extension of the assessment until the last day of the secondary school year in which the child turns 18 (CS(A)A section 151B–D).107 After that, an application can be made for adult child maintenance under the FLA if the child is studying or has a disability (11.8.2) An applicant for child support may be a parent or an ‘eligible carer’.108 A key requirement is that the applicant must not be living ‘on a genuine domestic basis’ with the prospective payer (CS(A)A sections 25 and 25A). Parents, however, can be subject to an assessment if they are separated but living under the one roof (just as they can still meet the 12-month separation period required before applying for divorce order: Chapter 4).109 Prospective payees must be resident in Australia or in a ‘reciprocating jurisdiction’ (CS(A)A section 29B).110 In contrast, only parents are liable to pay child support under the formula.111 As discussed in Chapter 4, this will normally be the child’s biological parents but the partial definition of ‘parent’ for child support purposes found in CS(A)A section 5 displaces this when children are adopted, or are born as a result of assisted reproductive technology (ART) in circumstances where FLA section 60H applies (in summary, where the mother has a spouse or de facto partner, including a same-sex partner). A parent for the CS(A)A also ‘includes’ a person who is a parent to a child under FLA section 60HB (that is, a child born as a result of a surrogacy arrangement where there is a prescribed parenting order) (Chapter 4). As a result of this definition, step-parents are not liable to pay child support, although FLA child maintenance orders may be obtained (11.8.1). The definition of ‘parent’ under the CS(A)A is narrower than that in the FLA, resulting in some inconsistent outcomes. In particular, applying the CS(A)A section 5 definition 106 When a child and prospective payee live outside Australia, an application can be made if they reside in New Zealand or reciprocating jurisdiction: CS(A)A s 24(2) and Australian Government, DHS-CS, Child Support While Living outside Australia, . 107 See further Naomi McCartin, ‘Financial Support for Adult Children’ (2013) 23 Australian Family Lawyer 29. 108 An eligible carer must usually seek an assessment in relation to both parents (CS(A)A s 25A) and must have at least ‘shared care’ (35–65% care: CS(A)A s 5(3)) of the child and caring for the child with the consent of a parent, unless it would be unreasonable for the parent to care for the child (CS(A)A s 7B). If a child is in the care of a nonparent under state child welfare laws, an application for child support can only be made if the carer is a relative of the child: CS(A)A s 26A. 109 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.1.1 Applications for Assessment, Explanations: Living Together’, . 110 Above n 106 and below n 111. 111 If a father is not resident in Australia, an application for an assessment can be made if he is a resident of a reciprocating jurisdiction: see Department of Social Services, Australian Government, Child Support Guide, 9  May 2014, ‘1.5.1 Australia’s International Maintenance Arrangements’, . If the father is resident in a reciprocating but excluded jurisdiction (Brunei Darussalam, Cook Islands, Israel, Niue, Papua New Guinea, the Yukon Territory of Canada and Samoa (previously Western Samoa)), the mother would need to apply for FLA child maintenance orders and register with DHS-CS. Where the father does not pay voluntarily under those orders, they could only be enforced where the father returns to Australia, moves to a reciprocating jurisdiction, or if an Australian income source or assets were identified.

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of ‘parent’, a donor of sperm112 to a woman (whether or not she has a husband or de facto partner at the time of the ART procedure) will not be liable to pay child support under the CS(A)A.113 In contrast, on recent authority a donor to an unpartnered woman will be a parent for the purposes of Part VII of the FLA.114 A donor to a partnered woman (at least, if she is partnered with a woman) is likely to obtain parenting orders,115 but if the women separate the non-biological mother will be liable to pay child support under the CS(A)A. Sperm donors, as biological parents, may therefore seek parental status and/or rights without child support obligations applying to them (some lingering doubt surrounds whether an application for child maintenance could be made under FLA Part VII: Chapter 4). This position in practical terms gives donors the opportunity to claim parental rights without being burdened with parental financial responsibility. It is, however, consistent with the policy priority attached to the importance of fathers, along with understandable policy concern to prevent sperm donors from being financially liable to support their progeny. It is also consistent with policy resistance (although inconsistently exercised) to making relationships between children and fathers contingent on the provision of financial support and vice versa: while paying for a child does not give rise to a right to spend time with or have parental responsibility in relation to a child, seeing a child nevertheless reduces the child support obligation. The child support position regarding parentage in surrogacy arrangements is similarly complex. Most surrogacies are conducted overseas and so are not the subject of state prescribed parenting orders that have the effect of recognising the commissioning couple as parents under FLA section 60HB (Chapter 4). However, use of the word ‘includes’ in relation to children born of surrogacy in the CS(A)A section 5 definition of ‘parent’ leaves open the prospect that commissioning parents without state prescribed parenting orders will be liable to pay child support. While ‘includes’ also raises the possibility in the surrogacy context of birth mothers and donors being liable to pay child support, an exemption may be made by DHS from the usual obligation to seek child support (11.3.3.1) ‘where the child was born as a result of a surrogacy arrangement which is not recognised under the Family Law Act 1975’.116 In the case of overseas surrogacies, the prospect of birth

112 This includes home insemination as well as clinic insemination (B and J (1996) 21 Fam LR 186), but excludes sperm donation via vaginal intercourse (ND v BM (2003) 31 Fam LR 22). The position of an ova donor is clearer: the birth mother and not the ova donor will be regarded as a parent of the child as a result of the operation of FLA s 60H(2) and the laws prescribed by each state and territory: Family Law Regulations 1984 (Cth), reg 12CA. 113 See further B and J [1996] FamCA 124; (1996) 21 Fam LR 186, 192–5. The reasoning behind this is as follows. When the mother is married or cohabiting, the CS(A)A s 5 definition of ‘parent’ provides that, in relation to children born as a result of ART, ‘parent’ ‘means’ (that is, provides ‘an exhaustive definition within the context of the circumstances referred to’ a person who is a parent under FLA s 60H, which in turn operates to make spouses and de facto partners of partnered women who consented to the ART procedure the child’s ‘parents’ (s 60H(1)). Nor will a sperm donor to an unpartnered woman be regarded as a parent for child support purposes: while FLA s 60H(3) deals with the legal status of a man who donates semen to an unpartnered woman (as well as where insemination takes place without the consent of her partner) there are no prescribed laws under the section so the donor is not a parent under it. 114 Groth & Banks [2013] FamCA 430. 115 For example, Re Patrick [2002] FamCA 193. 116 Department of Social Services, Australian Government, Family Assistance Guide, 12 May 2014, ‘3.1.5.70 Exemptions from the Maintenance Action Test’, .

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mother and donor liability is also limited by the requirement that payers must be resident in Australia or in a ‘reciprocating jurisdiction’ (CS(A)A section 29A).117 The position is, then, that a financial liability to pay child support for children conceived by sexual intercourse arises regardless of the circumstances of their conception (with limited exceptions, as just outlined). A child support assessment can thus be made against the father of a child conceived as a result of a ‘one night stand’ (or less), and/or who did not wish to father a child—a position that has been the subject of criticism, especially by men’s advocates. Understandably, they argue that if women have complete control about whether to terminate a pregnancy or not, it is unfair to hold men liable to pay child support. The merits of this argument were examined from a feminist perspective by UK academic Sally Sheldon, who found considerable merit in them, concluding ‘that the state has a duty to meet children’s basic needs and that this should be done at a generous level’.118 In support of this argument, Sheldon also referred to the continuing widespread poverty of women and their dependent children in the Western world despite privatised child support obligations, and the discrepancy between child support obligations that focus on identification of a male breadwinner and the increasing diversity of family forms, imposing families on fathers and fathers on families (see Chapter 4). Sheldon’s argument is compelling, and receives some support from the current lack of fit between community practices and family law definitions of ‘parent’ (just discussed) as well as recent Australian qualitative research highlighting the difficulties experienced by mothers when fathers pay late and/or irregular amounts of child support, including inability to plan and budget, and the constant administrative burden of engaging with DHS-CS and DHS-Centrelink.119 However, as noted in 11.1, Sheldon’s vision is unlikely to materialise in the near future in Australia given the continuing preference attached in law and policy here for shifting the balance towards private and away from state financial responsibility for supporting family members,120 and the importance attached to genetic fathers and genetic kin relationships, thus indirectly regulating families, particularly ‘families living outside the heteronormative, married, nuclear family’.121

117 Reciprocal arrangements exist between Australia and a number of other countries for the collection and transfer of child support, although the ability to collect child support will depend on local laws, processes and policies. See further Department of Human Services, Australian Government, Reciprocating Jurisdictions and Residency for Child Support, 2 December 2013, . 118 Sally Sheldon, ‘Unwilling Fathers and Abortion: Terminating Men’s Child Support Obligations?’ (2003) 66 Modern Law Review 175, 192–3. See also Martha Fineman, The Autonomy Myth, The New Press, New York, 2004, pp 203–4. 119 Natalier, McKenzie and Cook, above n 8; Belinda Fehlberg, Christine Millward and Monica Campo, ‘PostSeparation Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214. 120 Evident also, for example, in the superannuation context (14.5.1) and the ‘welfare-to-work’ rules, introduced by the Howard Federal Government in 2006, which ‘require most single parents with school-aged children to be employed or seeking employment of 15 to 25 hours per week in return for their income support payment’: Grahame and Marston, above n 100. 121 Catherine Donovan, ‘Genetics, Fathers and Families: Exploring the Implications of Changing the Law in Favour of Identifying Sperm Donors’ (2006) 15 Journal of Social and Legal Studies 495.

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11.3.2 Determining parentage for child support purposes: Process The Registrar (CS(RC)A section 10) has to be satisfied in accepting an application for administrative assessment of child support that the person against whom the assessment is sought is a ‘parent’ on the basis of one of the nine presumptions set out in CS(A)A section 29(2). The presumptions are similar but more extensive than the presumptions in FLA section 69P–T (Chapter 4). So, for example, mirroring the FLA presumptions, the Registrar can accept an application on the basis that the purported father is or was a party to a marriage and the child was born during that marriage, or that the child was born to a woman who cohabited with the purported father at any time for the period beginning 44 weeks and ending 20 weeks before the birth, or that the father’s name is entered in a register of births as a parent of the child, or that a court has expressly determined parentage. In addition, presumptions operate in the child support context where a child is adopted by the person, or the person is a parent for FLA section 60H (children born as a result of ART) and section 60HB (surrogacy in which state court orders have been granted). There are, however, some reasonably common scenarios not covered by the presumptions. For example, none of the presumptions cover the situation of a child born as a result of a non-cohabiting sexual relationship, in the absence of any formal acknowledgement of parentage (for example, a boyfriend–girlfriend relationship or a casual sexual encounter). Also, the Registrar cannot be satisfied that a person is a parent solely on the basis of parentage test results or verbal acknowledgement. In these contexts, a court application needs to be made for a declaration of parentage, which, if made (usually on the basis of deoxyribonucleic acid (DNA) testing), allows the Registrar to presume parentage on the basis of the court’s express finding (CS(A)A section 29(2)(c)) and accept the application. Declarations of parentage and parentage testing are discussed in Chapter 4. If a purported father against whom an assessment is made disagrees that he is the child’s parent, he can apply under CS(A)A to a court with family law jurisdiction (CS(A)A section 99; see Chapter 3) to reverse the Registrar’s decision (CS(A)A s 107).122 He will be referred by DHS-CS to the Child Support Unit of the relevant state Legal Aid Commission for assistance regarding seeking an order, but will not be eligible for legal aid or help with the cost of parentage testing. While the decision is pending, child support payments continue to be collected and held by DHS-CS until the court determination, after which it is paid to the mother or refunded (CS(RC)A section 79A). Conversely, if the Registrar is not satisfied that the purported father is the parent and so refuses to accept an application, a mother who disagrees with this outcome will need to apply to a court to reverse the decision under CS(A)A section 106A. In order to do so, she will be referred by DHS-CS or DHS-Centrelink to the Child Support Unit of the state Legal Aid Commission (or other community legal service funded to provide child support services) for assistance and will continue to be paid FTB A at above the minimum rate (11.3.3.1) while taking action to establish parentage. If the court makes a declaration under 122 See further Child Support Registrar & Farley and Anor [2011] FamCAFC 207 (Bryant CJ, Finn and Strickland JJ); Bixby and Farraday (SSAT Appeal) [2009] FMCAfam 647.

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section 106A that the father should be assessed to pay child support, child support will be payable from the date when the original application was made.123 In the course of making its decision, the court may order parentage testing (FLA section 69W) and make a declaration of parentage (FLA section 69VA) (Chapter 4). Who pays for the DNA testing will depend on the circumstances: there may be agreement to split the cost, or one party (or legal aid, in the case of a mother seeking a section 106A order) may pay and seek an order that the other party pay or contribute once the result is known. In cases of misattributed paternity, child support payments may be recovered from the mother124 under CS(A)A section 143, a general and discretionary provision allowing for repayment where no liability to pay exists (CS(A)A section 143(3)). In considering whether to make an order and the amount of the order, the court must take into account six factors, including the state of knowledge and conduct of the parties, the relationship of the applicant and the child, the biological father’s liability to financially support the child, and the financial circumstances of the parties (CS(A)A section 143(3B)). This section was inserted into the CS(A)A as a result of the recommendations of the Taskforce and was effective from 1 January 2007. The list is clearly based on the judgment of Riethmuller FM (as he then was) in 2004 in DRP & AJL.125 The risk created by this provision is that the mother and child will be left impoverished, as she will not be able to claim child support from the biological father even if he is identified: she would only be entitled to an assessment of child support from the ‘correct’ biological father from the date of any application made naming him as the father. Retrospective child support would not be payable. The provisions thus have a punitive element. A misattributed father may have additional losses for which he seeks redress, particularly the emotional distress resulting from the discovery and the financial cost of supporting the children while the marriage or relationship was intact. In Magill v Magill, the applicant, Mr Magill, failed in the High Court of Australia (HCoA) in his attempt, on the basis of the tort of deceit, to recover these losses following a paternity test in 2000, eight years after separation and the initial child support assessment had been made, which revealed that he was not the father of two of the three children born to his wife during their marriage.126 The HCoA unanimously dismissed Mr Magill’s appeal with costs. Three justices (Gummow, Kirby and Crennan JJ in a joint judgment) held that ‘while an action for deceit may be maintainable between spouses or former spouses in certain circumstances,127 the tort does 123 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘4.3.2 Applications and Orders about Decisions Made under the Assessment Act, Explanation: Declaration That a Person Should Be Assessed in Respect of the Costs of the Child because the Person Is a Parent of the Child (Section 106A)’, . DHS-CS processes also exist for repayment of excess FTB: email from Maria Vnuk to Belinda Fehlberg, 13 December 2013. 124 Rather than the Child Support Registrar: Child Support Registrar v Z [2002] FamCA 182. 125 DRP & AJL [2004] FMCAfam 440. Recent examples include Levine & Levine [2011] FMCAfam 821 (Scarlett FM) and Forsythe & Latimer & Anor [2010] FMCAfam 478 (Scarlett FM). 126 Magill v Magill (2006) 226 CLR 551; [2006] HCA 51. Mr Magill also attempted unsuccessfully to obtain compensation from the CSA: Magill v Commonwealth of Australia [2006] VCC 1395. He claimed the CSA in its dealings with him had breached a duty of care owed to him by failing to quickly correct over-deductions taken from his salary (negligence), and had abused its statutory power by intercepting his tax return, causing him psychological injury. Judge Anderson dismissed Mr Magill’s compensation claim, saying there was no basis for it. 127 For example, where one spouse has induced another by fraud to enter a contract or dispose of property.

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not apply to false representations made during the course of a marriage about an extramarital sexual relationship or paternity’.128 The three remaining judges (Gleeson CJ, Hayne J, and Heydon J in separate judgments) held that there could be circumstances in which an action for deceit regarding paternity might succeed but they were exceptional and did not cover Mr Magill’s situation. Justice Hayne took the narrowest view regarding the application of the tort of deceit between parties to a marriage, taking the view that, with some limited exceptions, it was necessary to show the parties’ intention that legal consequences would follow from what was said or done.129 The problem for Heydon J was that the elements of the tort were not made out. In principle, he did not disagree with any distinction being made between spousal and other contexts.130 Gleeson CJ seemed to sit between these two positions, taking the view that the elements of the tort were not established, but that this really indicated deeper problems with using the tort in this context.131 In the end, the HCoA’s decision in Magill reflects understandable judicial discomfort regarding the use of ‘a tortious remedy designed to address dishonesty in commercial transactions’132 in the context of paternity fraud. In the balance to be struck between achieving fairness between the parties and financially supporting children, its effect is to prioritise the latter.

11.3.3 Does an application for formula-based assessment have to be made? Consistent with the policy goal of prioritising private over state responsibility for children’s financial support, in most cases the mother will need to apply for a child support assessment to prevent reduction in her Federal Government family payments.

11.3.3.1 The Maintenance Action Test Carers entitled to apply for child support have 13 weeks to take action to obtain child support payments before their FTB payments are affected (the Maintenance Action Test). Given that separated mothers are commonly on low incomes and reliant on FTB,133 the practical effect of this requirement is that in most cases an application for child support assessment will be made. In the unusual event that a mother does not apply for or is not eligible for FTB A (for example, because she is a very high-income earner), she is not obliged to apply for a child support assessment but may still do so. Specifically, the obligation to seek child support is linked to receipt of FTB A, a government payment that varies depending on household income and the number of children for whom the claimant is responsible.134 FTB A is paid at two rates (‘base rate’

128 129 130 131 132 133 134

Magill v Magill (2006) 226 CLR 551 [2006] HCA 51, [86]. ibid., [140]. ibid., [231]. ibid., [42], [47], [49]. Lisa Young and Stephen Shaw, ‘Magill v Magill’ (2005) 19 Australian Journal of Family Law 44, 45. For statistics pertaining to incomes of CSA payers and payees see Child Support Agency, above n 11. On eligibility to receive FTB A, see Department of Human Services, Australian Government, Family Tax Benefit: Eligibility Basics, 29 May 2014, .

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(received by all but the highest income earning parents)135 and ‘more than base rate’ (an additional payment for families with a relatively low household income)). In the current (2014–15) financial year, the maximum FTB A rate for a household income up to $48,837 is $176.82 per fortnight for each child 0–12 years (amounts increase with the age of the child, stopping at 19 years, after which Youth Allowance may be payable directly to relevant children).136 The FTB A base rate for each child under 18 years is $56.70 per fortnight, so its receipt is of considerable financial assistance for many families.137 Since 1 January 2007, separated parents who receive or apply for more than the base rate of FTB A (that is, most separated mothers) have had 13 weeks (rather than 28 days, as previously) to apply for child support, to avoid a reduction in their FTB A payments to only the base rate of FTB A.138

11.3.3.2 Exemption from the test: Family violence Exemption from the Maintenance Action Test may be granted in certain circumstances, including that the mother does not know the identity of the father, or her fear that if she applies for child support, the father will react violently towards her or her family.139 Recently, the Australian Law Reform Commission (ALRC) considered the location and accessibility of the exemptions and recommended including them in legislation (A New Tax System (Family Assistance) Act 1999 (Cth)) along with other measures directed at improving their accessibility.140 However, qualitative research conducted in 2006 (just before the 2006–08 amendments) by Rebecca Patrick and colleagues involving interviews with 19 single mothers living in Melbourne who described family violence and received welfare benefits suggested that accessibility was not the key issue, and that gaining an exemption does not necessarily resolve the complex range of issues raised by family

135 For example, if there is one child aged 0–12, FTB Part A cuts out when the household adjusted taxable income reaches $101,653: Department of Human Services, Australian Government, Income Test for Family Tax Benefit Part A, 30 April 2014, . Very few separated mothers have household incomes at this level. 136 See further Department of Human Services, Australian Government, Eligibility for Youth Allowance, 16 July 2013, . 137 Department of Human Services, Australian Government, Payment Rates for Family Tax Benefit Part A, 30 April 2014, . 138 Department of Social Services, Australian Government, Family Assistance Guide, 12 May 2014, ‘3.1.5 Maintenance Action Test for FTB Part A’, . 139 See further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘6.10.1 Family Violence’, ; Department of Human Services, Australian Government, Family Assistance Guide, 12 May 2014, ‘3.1.5.70 Exemptions from the Maintenance Action Test’, . 140 Australian Law Reform Commission, Family Violence and Commonwealth Laws: Improving Legal Frameworks, Report No. 117, 2012, chapter 13, available at . As noted by the ALRC, the exemptions policy is currently found in the Department of Social Services, Australian Government’s Family Assistance Guide, , while information about the relevance of family violence is found in the Department of Social Services, Australian Government’s Child Support Guide, 9 May 2014, ‘6.10.1 Family Violence’, . Determinations regarding exemptions from the ‘Maintenance Action test’ are made by Centrelink social workers.

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violence.141 Their study illustrated how manipulation of child support responsibilities can be part of an ongoing strategy by perpetrators of family violence to maintain power and control over targets, and that an unintended consequence of the exemptions policy is that it allows perpetrators to benefit from their behaviour by not paying child support. Specifically, mothers in their study commonly described receiving no child support payments, minimum amounts, irregular payments and significant arrears. They also identified a range of loopholes in the system and avoidance tactics that their ex-partners used to avoid their child support obligations (for example, quitting their job). All reported postseparation family violence and their experiences of seeking child support were underpinned by ongoing harassment and abuse, including the perpetrator’s application for parenting orders and false allegations. They encountered difficulty in having their concerns heard and acted upon due to the nature and extent of paperwork and time involved and DHS-CS’s lack of investigatory powers. Some participants were unaware of the exemptions policy, while others were aware but did not proceed to apply because they were daunted by the process or feared their ex-partner’s actions if they did so. A key problem with exemptions when in place was that perpetrators escaped responsibility for payment of child support (Patrick and colleagues contrast Australia’s policy to that operating in most parts of the United States, where child support debt continues to accumulate while an exemption is in place). A key finding was that exemptions were a short-term solution to child support arrangements and useful for decreasing immediate threats or fear of violence during the initial period of separation transition, with key agencies recommending private or court ordered agreements after this period despite the continuing fear of violence. These findings are consistent with the findings of qualitative142 and quantitative research conducted after the 2006–08 child support amendments, particularly the findings of recent AIFS Survey of Recently Separated Parents (SRSP), comprising quantitative research on parents’ experiences of, and system responses to, family violence and concerns about child safety before the Family Law Amendment (Family Violence and Other Measures) Act 2011 (Cth) came into effect (Chapters 5 and 6).143 SRSP, based on telephone interviews with 6,119 parents who separated between 31 July 2010 and 31 December 2011 and whose main use of family law system services occurred around 2011, cautiously found that ‘[g]reater proportions of parents who had reported experiencing physical violence than other parents reported their case involved child support issues’.144 Parents who had 141 Rebecca Patrick, Kay Cook and Hayley McKenzie, ‘Domestic Violence and the Exemption from Seeking Child Support: Providing Safety or Legitimizing Ongoing Poverty and Fear’ (2008) 42 Social Policy and Administration 749. See also Rebecca Patrick, Kay Cook and Ann Taket, ‘Multiple Barriers to Obtaining Child Support: Experiences of Women Leaving Violent Partners’ (2007) 45 Just Policy 30. 142 Belinda Fehlberg, Christine Millward and Monica Campo, ‘Shared Post-Separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247; Fehlberg, Millward, Campo and Carson, above n 8; Belinda Fehlberg and Christine Millward, ‘Post-Separation Parenting and Financial Arrangements over Time: Recent Qualitative Findings’ (2013) 92 Family Matters 29; Belinda Fehlberg and Christine Millward, ‘Family Violence and Financial Outcomes after Parental Separation’; Alan Hayes and Daryl Higgins (eds), 2014. Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia, Australian Institute of Family Studies, Melbourne. 143 de Maio et al., above n 4. 144 44% cf 29% who reported emotional violence and 16% who reported no violence: ibid., p 55.

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experienced family violence before, during or since separation were more likely to use Child Support Collect (11.2.3), reported higher non-compliance, and were more likely to perceive the child support assessment in their case to be personally unfair than parents who did not describe family violence.145 Further research is needed to determine whether the position of mothers exposed to family violence has improved regarding receipt of child support given the rapid pace of law and policy change in this area over the past few years, including the 2012 FLA family violence amendments (Chapter 5). In the child support area, DHS implemented Family Violence Risk Identification and Referral procedures in 2011 for all new child support applications (including staff awareness training by the department’s social workers to all front line staff and a risk assessment guide). DHS has also developed a whole-of-department family violence strategy,146 as part of the government’s National Plan to Reduce Violence against Women and their Children 2010–2022, released in February 2011.147 Findings from LSSF Wave 3 do not suggests any marked change: for each survey wave, parents who experienced violence or abuse ‘were less likely than those who had been free from such experiences to report that they received child support both in full and on time’.148

11.3.4 Receipt of child support is not necessarily a net gain to the mother Receipt of child support may reduce the mother’s FTB A payments and so is not necessarily a net gain to the support of her household. This is once again consistent with the policy goal of prioritising private over state responsibility for children’s financial support. Specifically, the application of the Maintenance Income Test has the effect of reducing the payee’s FTB A by 50 cents for each dollar of child support received above a prescribed threshold (in 2014–15, this threshold for sole parents is $1,522.05 per annum plus $507.35 for each dependent child).149 In this respect, the taxpayer is, consistent with the original policy goal of reducing social security costs, a significant beneficiary (and arguably the most significant beneficiary) of the CSS: The Child Support Scheme has reduced the cost of relationship breakdown to taxpayers. As a result of the mandatory transfer, or deemed transfer, expenditure on Family Tax Benefit (FTB) was reduced by an estimated $433.5 million in 2002–3.150

145 ibid., pp E4 and 106–18. 146 Department of Human Services, Australian Government, Family and Domestic Violence Strategy, 1 August 2013, available at . 147 Department of Human Services, Annual Report 2011–12, above n 70, pp 30–1. The National Plan to Reduce Violence against Women and Their Children, 2010–2022 is available at . 148 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 5, p 128. 149 Department of Human Services, Australian Government, Income Test for Family Tax Benefit Part A: MaintenanceIncome Test Free Areas (per Year), 30 April 2014, . 150 Ministerial Taskforce on Child Support, above n 1, p 76.

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11.4  The basic formula Central to the CSS is a formula for calculating the amount of child support payable by parents. This results in a ‘child support assessment’, which is then re-done at least every 15 months (CS(A)A section 7A(3)(a)) in order to reflect the family’s current circumstances.151 The original formula was developed on the basis of recommendations made in 1988 by the Child Support Consultative Group, chaired by the late Justice John Fogarty.152 It was subject to some adjustment over the years and was replaced by a new formula from 1 July 2008 (the most significant stage of a three-stage overhaul of the CSS, with other changes coming into effect from 1 July 2006 and 1 January 2007), reflecting the recommendations of the Taskforce’s 2005 report.153 The current formula (CS(A)A Part 5), which is the focus of the following discussion, is significantly more complex than the original formula. The Taskforce viewed greater complexity as a by-product of its aim to more accurately reflect the range of family forms and post-separation parenting arrangements, and the costs of children, and concluded that the use of an ‘on-line calculator’ by parents and professionals in order to calculate liability154 meant that ‘[a]lthough the formula may be legislatively complex, it will be no more complex to administer … nor will there be any greater complexity for the general public’.155 Increased complexity has, however, added to the challenges involved when attempting to understand and assess the operation and impact of the amendments. The complexity of the formula is illustrated by its application to the simplest scenario— that is, when there is one child support assessment (parents will sometimes have children with two or more ex-partners) and the only carers are the child’s parents. In these circumstances the basic formula (CS(A)A section 35) will apply; this involves: • Determining each parent’s ‘child support income’: This is each parent’s most recent taxable income, adjusted to take into account some allowable tax deductions (in effect increasing the income amount and resulting in the ‘adjusted taxable income’),156 minus an amount for each parent’s self-support costs (one-third of male total average weekly earnings (MTAWE), as reported by the Australian Bureau of Statistics), which in 2014 is $23,523.157 151 The assessment can also be adjusted during the particular child support period to reflect changes in circumstances, for example when parenting time changes or a parent’s income changes. See further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.5.1 Income Estimates for a Year of Income’, . See also Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.9.5 Amending Assessments’, . 152 Child Support Consultative Group, Child Support: Formula for Australia, Australian Government Publishing Service, Canberra, 1988. 153 Ministerial Taskforce on Child Support, above n 1; Parkinson, above n 14. 154 Department of Human Services, Australian Government, Online Estimators, 27 May 2014, . 155 Ministerial Taskforce on Child Support, above n 1, p 140. 156 When either parent’s income has decreased by more than 15% of the adjusted taxable income figure (e.g., due to job loss) they may elect to have their estimate of current income used instead: CS(A)A s 60. 157 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.2 Formula Values and Tables’, .

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For example, Angelo and Bettina have separated. They are the parents of twins aged 10. Neither parent has new children to support. Angleo’s taxable income is $98,523 and Bettina’s is $48,523. Therefore after the self-support amount of $23,523 is deducted from each parent’s income, Angelo’s taxable income for the 2012–13 financial year is $75,000 and Bettina’s is $25,000.

• Determining each parent’s percentage contribution to their combined ‘child support income’ (‘income percentage’): Meaning each parent’s percentage contribution to their total pool of ‘child support income’ (‘combined child support income’).

For example, Angelo’s income ($75,000) + Bettina’ income ($25,000) = combined child support income of $100,000, of which the income percentages are Angelo 75% and Bettina $25%.

• Determining the costs of the children: This is determined on the basis of the ‘combined child support’ income and the ages and number of children; the calculations are set out in a ‘costs of children’ table, which is updated (indexed) annually.158

For the combined child support income of Angelo and Bettina, the cost of two children under age 12 in 2014 was $22,469.20 ($16,583 plus 20c for each $1 over $70,569).

• Determining each parent’s level of care—measured in nights—of their children (‘care percentage’): A table in the legislation (CS(A)A section 55C) is used to translate this figure into a ‘cost percentage’ (the percentage of costs of the child that a parent with that level of care is assumed to meet directly through that care).

Angelo has care of the children one night per week (14 per cent time/‘care percentage’), which translates to a cost percentage of 24 per cent159 (that is, Angelo is assumed to assumed to meet 24 per cent of the cost of their children directly through care).

• Establishing the ‘child support percentage’: By subtracting the parent’s ‘cost percentage’ from their ‘income percentage’. The resulting percentage is applied to the deemed costs of their children to determine the amount payable. • Angelo’s cost percentage of 24 per cent is subtracted from his income percentage of 75 per cent, resulting in a figure of 51 per cent. Angelo will therefore pay 51 per cent of $22,469.20 (the deemed costs of the children in this family) in child support—that is, $11,460. Looking beyond these calculations, several key policy messages underlie the current formula: • Treating parents ‘equally’

The current formula treats both parents as nominal child support payers and allocates to each the same self-support amount. This is in contrast to the original formula, which focused on the income of the father and disregarded the income of the mother

158 ibid. 159 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.5 Care, Cost and Child Support Percentages’, .

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unless she earned above average weekly earnings (plus, until July 1999, an additional allowance for childcare costs)160 and allowed only a very low amount (based on the relevant single rate of Social Security pension,161 with some improvement over time) for the father’s self-support costs.162

Treating both parents as child support payers was considered justified by the Taskforce because since the late 1980s when the original formula was introduced women’s workplace participation had changed, so that most mothers are now employed part-time outside the home.163 It was also an approach consistent with 2006 shared parenting amendments (Chapter 6), both as an aspect of equal shared parental responsibility and as an encouragement of shared time arrangements. More broadly, it was consistent with the Howard Federal Government’s aim of reducing welfare dependence by treating both parents as potential labour force participants (specifically, with the introduction from July 2006 of ‘welfare-to-work’ rules (11.2.4)).



In practical terms, fathers are still usually assessed to pay child support to mothers. However, ‘equal treatment’ is likely to reduce their liability (11.8). At a policy level it is troubling that the formula is structured to suggest mothers’ and fathers’ economic equality when the empirical evidence continues to show the reverse (Chapter 10). Specifically, a model of formal equality does not sit well with the continuing empirical reality of mothers’ and fathers’ typically gendered patterns of paid and unpaid work. Mothers typically work a ‘double shift’ and tailor their part-time work commitments around their family responsibilities. Earning an income is likely to be more difficult for them than for their ex-partner, whose workforce participation is not shaped to the same extent by caring responsibilities. Treating both parents as nominal payers also glosses over the practical reality that income earned by mothers will commonly be automatically shared with their children because their children live with them for most of the time, and that the more significant concern is whether fathers are contributing appropriately to their children’s support.164 The original formula, with its more generous treatment of mothers’ income and self-support costs, was more cognisant of these issues.165

160 From this time, the payee’s disregarded income amount was also reduced due to use in the formula of a lower measure of weekly earnings (‘all employees average weekly earnings’ (EAWE) rather than ‘average weekly earnings’ (AWE)). 161 Now known as ‘income support’ and comprising a number of categories including Newstart Allowance (for those seeking employment), Disability Support Pension, and Parenting Payment (for low-income families). See further Australian Government, Benefits, Payments and Services, . 162 Ministerial Taskforce on Child Support, above n 1, p 50. 163 A recent study found that in 2009–10 two-thirds of women with children under the age of 15 were employed: Jennifer Baxter, Australian Mothers’ Participation in Employment Research: Analyses of Social, Demographic and Family Characteristics Using the Household, Income and Labour Dynamics in Australia (HILDA) Survey, Research Paper No. 52, September 2013), . 164 Although this seems to be acknowledged in the rule that parents with under 35% care are not eligible to receive child support from the other parent even if the other parent’s income is higher—they are in effect treated as meeting their share of the combined costs of children via care: Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.2.1Basics of Care: Definitions Used to Describe Care for Child Support Assessments’, . 165 Ministerial Taskforce on Child Support, above n 1, p 51.

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• Re-thinking the costs of children

In an effort to more accurately reflect the costs of children in individual families, the formula now takes account of a wider range of factors than the old formula, under which the payer paid a fixed percentage of his income, depending on the number of children.166 Consistent with this shift, the objects of the CS(A)A were amended to include ensuring that the level of financial support provided by parents to their children ‘should be determined in accordance with the costs of the children’ when the new formula came into effect on 1 July 2008 (CS(A)A section 4(2)(b)). In contrast, the original child support formula was based on the ‘continuity of expenditure’ principle, to the effect that ‘wherever possible, children should enjoy the benefit of a similar proportion of parental income to that they would have enjoyed if their parents lived together’.167

• The amount of child support payable is now based on an annually indexed Costs of Children Table setting out costs according to the number of children168 and their ages (children 0–12 years of age are now treated as costing less than children aged 13–17), in families having the combined income of the parents in the particular case. • Three research reports commissioned by the Taskforce on the costs of children provided the basis for the tables.169 That research, however, involved sophisticated theoretical (economic) modelling and analysis, rather than empirical (primary) research based on real life experience170 and overall it would seem that the real costs of children in separated families are underestimated by the tables. Specifically: + The research was based on the costs of children in intact families, when costs are likely to be higher in separated families due to duplication of some costs across two households. + The research calculations relied on ‘normative models of expenditure’ that focused on dollar costs of children and ‘did not take into account the unpaid care work conducted by women’171 (admittedly if a dollar value was attached to home duties the costs of children would be astronomical, but non-recognition of this work evidences the underlying gender bias of the tables). + The calculations assume that the costs of children aged 0–12 years are less than those for older children, but do not factor in the substantial costs of childcare for younger children. The Taskforce’s reasoning included that to do so was too ­complex given the variety of childcare arrangements utilised by parents and that not all women work outside the home. It concluded that allowing the same costs 166 18% for one child, 27% for two children, 32% for three children, 34% for four children, and 36% for five or more children. 167 Child Support Consultative Group, above n 134, p 67, quoted in Ministerial Taskforce on Child Support, above n 1, p 15. 168 The new formula assumes that the costs of children do not to increase after three children, because the costs of children table does not include FTB, which is payable in a per child basis with no reduction for economies of scale and families with three children or more also receive a large family supplement. 169 Ministerial Taskforce on Child Support, above n 1, pp 122–38. 170 See further Christine Millward and Belinda Fehlberg, ‘Recognising the Costs of Contact: Infrastructure Costs, Regular Care and Australia’s New Child Support Formula’ (2013) 27 Australian Journal of Family Law 1. 171 Cook and Natalier, above n 18, p 43.

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of children for children under the age of five to those aged 5–12 in the formula would take account of both the costs of childcare and income foregone by parents who remain at home. However, the result is that the formula takes into account workforce participation by women but not the costs to women of doing so,172 an inconsistency that serves the interests of fathers. While a change of assessment application can be made when costs of childcare are high, this requires the mother to make an application to DHS-CS and a decision in her favour (11.5.2). + The tables assume that the costs of children remain the same once the parents’ combined child support income reaches 2.5 times MTAWE (in 2014, this was $70,569, which multiplied by 2.5 is $176,422.50). So, for example, the costs of children for parents with a combined child support income of $2 million per annum are assumed to be the same as for parents with a combined income of $180,000. The Taskforce suggested that this approach was justified by research indicating that at very high income levels (above around $130,000) the amount parents spend on their children plateaus.173 The ‘cap’ for high-income earners was part of the original formula, but in the current formula a lower average weekly earnings figure is used than previously. MTAWE is now used, rather than all employees average weekly earnings (EAWE, which were $1,115.40 in November 2013),174 with the effect that the cap has been reduced, to the advantage of high-income-earning fathers. Due to the very low incomes of most DHS-CS payees (high-income earners are more likely to have child support agreements or ‘Self-Administer’ arrangements), this situation is likely to arise rarely but the situation nevertheless illustrates the way in which the default position under the formula has changed to the disadvantage of mothers. Once again, the change of assessment process (11.5.2) can be used in these circumstances, but this requires additional steps on the part of the mother and a favourable decision of a child support review officer. • Encouraging father involvement • Under the current formula, child support liability is reduced for fathers who spend 14 per cent of nights or more with their children. ‘Regular care’ is now used to refer to a care percentage of 14–34 per cent and ‘shared care’ is used to refer to a care percentage of 35–65 per cent.175 In contrast, the pre-2008 threshold at which a 172 Ministerial Taskforce on Child Support, above n 1, p 146. A recent study by the Productivity Commission has found that ‘[f ]amilies with one child in full-time day care are devoting about 9 per cent of their disposable incomes  to childcare fees even though the federal government spends more than $5 billion a year subsiding parents’: see Matt Wade, ‘Childcare Eating up Nine per Cent of Families’ Income despite Subsidies’, The Age (online) 9 December 2013, ; Productivity Commission, Australian Government, Childcare and Early Childhood Learning, Issues Paper, Productivity Commission, December 2013, pp 20–2, . 173 Ministerial Taskforce on Child Support, above n 1, pp 136–7. 174 Australian Bureau of Statistics, 6302.0—Average Weekly Earnings, Australia, Nov 2013, . 175 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.2.1 Basics of Care: Definitions Used to Describe Care for Child Support Assessments’, .

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reduction in liability occurred was in effect 30 per cent of nights,176 which was in turn a reduction from the 40 per cent threshold in the original formula. • Specifically, parents with ‘regular care’ (14–34 per cent of annual time) are assumed to meet 24 per cent of the costs of their children directly through care. Parents with ‘shared care’ of 35–47 per cent of annual time are assumed to meet 25–43 per cent of costs (25 per cent of costs plus two per cent for every percentage point between 36–47 per cent) while those with ‘shared care’ that amounts to equal time (48–52 per cent of annual time) are said to meet half the costs of their children directly through care. However, in cases of less than 35 per cent shared care, FTB A now remains with the mother, in recognition that her costs will not necessarily decrease (pre-2008, splitting of FTB was allowed where there was more than 10 per cent shared care). Fathers in this group continue to be eligible for the rent assistance component of FTB A and for a health care card. • This change addressed the longstanding complaint of fathers that the formula took insufficient account of their costs of contact. In particular, the Taskforce sought to recognise the ‘infrastructure costs’ of non-residence parents—a term that the Taskforce saw as including the provision of appropriate accommodation and bedding for contact visits, but not consumption costs such as food, transport and entertainment177 (which the formula implicitly assumes will be paid by the contact parent while the children are with him, in addition to his child support payments—a point that empirical research suggests fathers are commonly unaware of or do not accept).178 • The incorporation of built-in infrastructure costs in the new formula was debatable as it was not based on sound empirical evidence of actual infrastructure costs or direct costs of contact visits or of reduced costs to mothers.179 The only Australian empirical research conducted before the change had serious methodological limitations, including being based only on the views of non-resident fathers.180 As already noted, the costs of children research commissioned by the Taskforce involved sophisticated theoretical modelling but no empirical research, and only one of the commissioned three reports considered the costs of contact. As such, this was an ideologically rather than empirically motivated change aimed at encouraging father involvement, consistent with the shared parenting ethos underpinning the 2006 parenting amendments, as the Taskforce acknowledged: Child support policy can no longer be just concerned with enforcing the financial obligations of reluctant non-resident parents. Ensuring the payment of child support is one part of a bigger picture of encouraging the continuing involvement of both parents in the upbringing of their children.181 176 At this level both parents had a liability and these were offset against the other. Some parents with 70% care paid child support to the parent with 30% care. 177 Ministerial Taskforce on Child Support, above n 1, p 154. 178 Kristin Natalier and Belinda Hewitt, ‘Reproducing and Undoing Hegemonic and Socially Valued Femininity’, above n 8; Fehlberg, Millward and Campo, above n 79. 179 Millward and Fehlberg, above n 170, p 5. 180 See further, ibid. 181 Ministerial Taskforce on Child Support, above n 1, p 2.

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Following the introduction of the new formula in 2008, the proportion of ‘shared care’ cases is plateauing at 15 per cent182 but ‘regular care’ is increasing especially, in newly registered  cases.183 However, post-2008 empirical research ‘does not suggest that infrastructure costs in the range of 24 per cent of costs of care are consistently being expended by parents with “regular care”’ (11.7.1).184

11.5  Flexibility in the application of the formula and the CSS more broadly Although the introduction of child support signified a movement away from discretion (of courts making child maintenance decisions under the FLA) in favour of rules (DHS-CS application of the formula), there has always been some flexibility in the application of the formula and the CSS more broadly, in addition to the collection options discussed at 11.2.3.

11.5.1 Modification of the formula Although the formula was designed to be of general application, it was recognised from the outset that some flexibility was required regarding its application in order to reflect individual circumstances. The main ways in which this is achieved are now discussed.

11.5.1.1 Second families One of the most criticised aspects of the original formula was the very modest allowance made for the payer’s support of ‘new’ children.185 First families were thus prioritised over second families. This was of particular concern to non-resident fathers (who are more likely than mothers to re-partner)186 and their new partners. Changes over time improved the treatment of second families to some extent,187 but the introduction of the current formula in 2008 further improved their position. 182 Bruce Smyth, Richard Chisholm, Bryan Rodgers and Vu Son, ‘Legislating for shared-time parenting: Insights from Australia?’ (2014) (forthcoming) 77 Journal of Law and Contemporary Problems. 183 Maria Vnuk, private email correspondence, 4 April 2014. Recent research by the Australian Institute of Family Studies indicated that the proportion of shared care-time (34–65% time) arrangements had increased, but the researchers explained that this may have been due to characteristics of the two samples used: de Maio et al., above n 4, p 14. 184 Millward and Fehlberg, above n 170, p 23. 185 Initially, the payer’s exempt income amount was the relevant single rate of Social Security pension. If the payer had other relevant dependent children (meaning biological or adopted children, or step-children for whom there was a legal responsibility to financially support) the married pension rate applied, with additional amounts for relevant dependent children. These amounts did not necessarily reflect the costs of new children in higher income families: Ministerial Taskforce on Child Support, above n 1, pp 98–9. 186 Qu and Weston, above n 5, p 10; Millward and Fehlberg, above n 170, p 18; A Skew, A Evans and E Gray, ‘Repartnering in the United Kingdom and Australia’ (2009) 40 Journal of Comparative Family Studies 563. 187 From 1 July 1999, the payer’s exempt income amount was increased to 110 per cent of the unpartnered rate of Social Security pension and, where the payer had dependent children, to 220 per cent of the partnered rate of Social Security pension plus additional amounts for relevant dependent children. From that time, additional exempt income amounts were also allowed for children where payers had care for above 40 per cent of nights (previously, the exempt income rate of a parent with care for 40–60 per cent of nights was the single rate). Also from July 2001, a payer could apply for a change of assessment on the basis that he was earning additional income to benefit a resident child (being their natural child or step-child, including de facto step-child) living in their household: Ministerial Taskforce on Child Support, above n 1, pp 50–1.

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Specifically, the formula is now modified to reflect the costs of raising children in the second family by first deducting a ‘relevant dependent child amount’ from the parent’s188 income along with his self-support amount (11.5), with child support payable to the first family being calculated on the remaining balance.189 In addition, a parent may apply for a change of assessment (11.6.3) if their capacity to pay child support is substantially affected by their responsibility to financial support a step-child whose parents are unable to provide support (CS(A)A section 117(2)(aa)).190 An application can also be made to have additional income (for example, from overtime or a second job) earned in the first three years after separation exempted; this can result in a reduction in the income figure used for child support purposes of up to 30 per cent (CS(A)A section 44). Rather than treating first and second families more equally, the overall effect of these changes appeared to be to prioritise ‘new’ children. In particular, the effect of the ‘relevant dependent child amount’ is to subtract the costs of new children along with the parent’s self-support amount, and to treat what is left (provided it was not earned as the result of a second job to support the new family) as child support income available to meet the child support obligation owed to children in the first family. Given that the needs of new families are likely to be prioritised in any event, along with the greater poverty of sole-parent-headed families, it would be preferable for the legislation to reduce, rather than increase, this prioritising effect. However, research by Smyth and Henman immediately following the changes (11.8) suggests that this concern has eventuated in the case of high-income but not low-income fathers, as the latter were overcompensated by the previous flat rate approach while the former were undercompensated.

11.5.1.2 Fathers on low incomes The operation of the formula is modified so that fathers on very low incomes are usually assessed to pay either the minimum amount or the fixed annual rate of child support. Originally, no child support was payable if the father’s income resulted in an assessment of less than $260 a year. From 1999, a minimum annual rate of child support of $260 per year ($5 per week) was introduced. The minimum annual rate (CS(A)A section 66) was introduced mainly as a symbolic measure to reinforce the Howard Federal Government’s view that all parents should contribute to their children’s financial support.191 For fathers receiving government income support payments, the resulting liability is normally the minimum liability.192 However, following since the introduction of the new formula, the minimum payment does not apply when the father has at least regular care (14–34 per cent time) of at least one of the children in the child support case or when the father’s liability would be assessed as less than the minimum rate (CS(A)A section 66(1))—although 188 While this approach applies to both parents, it is more likely to apply to fathers than mothers given the greater likelihood that the former will re-partner: Qu and Weston, above n 5; Millward and Fehlberg, above n 170. 189 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.6 The Costs of the Child’, . 190 See further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.6.2 What are the Reasons for a Change of Assessment?’, . 191 ibid. See further, Wolffs and Shallcross, above n 96. 192 Ministerial Taskforce on Child Support, above n 1, p 166.

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‘income’ is interpreted broadly so that there are very few exclusions on this basis.193 If the minimum annual rate applies, a father will be exempt from paying it only in unusual cases (examples include fathers who are in full-time nursing care).194 From 1 July 2006, the minimum annual rate of child support was increased (it is currently $399 per annum)195 and became indexed annually and applied on a per family, rather than a per payer, basis (in other words, if a father has child support liabilities to children of up to three ex-partners, he will be liable to pay $399 to each family rather than this amount being apportioned between the families).196 The increase in the minimum payment was, however, significantly less than the recommendation of the 2003 Every Picture Report of an increase to $520 per annum, and, as just mentioned, fathers with regular care were added to the existing exemptions, consistent with the shared parenting ethos underlying the new formula.197 Conversely, and consistent with the Taskforce’s recommendation, from 1 July 2008 a fixed annual rate of child support (currently $1,322) was introduced: CS(A)A section 65A. This measure was directed at parents who deliberately minimise their income to avoid paying child support. It applies to parents who do not receive income support payments yet report income lower than the Parenting Payment (single) maximum annual rate—the assumption being that they are not disclosing their true income and are in a position to pay child support at more than the minimum rate.198

11.5.2 The ‘change of assessment’ procedure If a child support assessment has been made and a parent is dissatisfied with the assessment, the parent may be able to apply for a change of assessment. As the legislation (CS(A)A sections 118 and 141) provides decision makers with wide powers to change the assessment in favour of the applicant or the respondent, this process is often of relevance to parents. The change of assessment procedure was originally court-based, but from 1992 became a DHS-CS administrative process conducted by senior case officers (although the family law courts may still make a determination (known as a ‘departure order’) if deciding another matter (CS(A)A section 116(1)(b)). As noted earlier, appeals on most child support decisions, including change of assessment, are to the SSAT and then to the family law courts on a question of law (11.2.12; appeals from court decisions will follow the normal route: Chapter 3). 193 CS(A)A s 66(5); see further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.12: The Minimum Annual Rate of Child Support’, . 194 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.5.4 Application to Have the Minimum Annual Rate of Child Support Reduced to Nil’, . 195 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.12: The Minimum Annual Rate of Child Support’, . 196 If the father has more than three child support families, the amount payable is capped at three times the minimum amount and apportioned between the families: CS(A)A s 66(6); Department of Human Services, Australian Government, ibid. 197 ibid. See further Cook and Natalier, above n 19, pp 39–40. 198 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.11 Fixed Annual Rate of Child Support for Certain Low Income Parents’, .

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A three-step process for change of assessment applications was set out by the Full Court in In the Marriage of Gyselman199 in 1991, requiring that the applicant establish (1) that in the special circumstances of the case, a change should be made due to one of the 10 grounds for change of assessment; (2) that it is ‘just and equitable’ to the child and both parents to make the change; and (3) that it is otherwise proper to make the change. The requirement of special circumstances along with the requirements set out in steps (2) and (3) mean that change of assessment is limited to unusual cases. The complexity of the provisions, combined with the fact that relatively few parents appeal to the SSAT and even fewer to the family law courts, make it difficult to gain a clear sense of when applications will be approved.200 As just mentioned, step (1) involves the applicant establishing one of 10 reasons for change of assessment distilled by DHS-CS from the legislation (CS(A)A sections 117(2) and 98C(2)). They are all prefaced by the proviso that ‘in the special circumstances of the case’ a change of assessment is warranted (CS(A)A section 117(1)(a)). This phrase is not defined in the legislation but Full Court interpretation requires that the facts of the case involve ‘something which is special or out of the ordinary’.201 So for example in the 2013 case of Firth & Hale-Forbes,202 the father failed to establish in the FCoA ‘that his re-partnering, the birth of children in his new relationship, the fact that school fees for the subject children have increased and the fact that the father is now paying school fees for the children of his second relationship are in some way to be considered special or out of the ordinary’. Rees J observed that ‘[i]n the usual course of events parents re-partner and children are born in those new relationships. Indeed the child support legislation itself recognises that adjustments have to be made having regard to the commitments of liable parents to support other children’.203 Nor did the modest increase in the mother’s income amount to a special circumstance.204 In addition, for a change of assessment to occur the parent’s special circumstances must fall within one of 10 reasons,205 including:206 • The costs of maintaining a child are significantly affected by a parent’s high costs of contact with the child (these costs being more than five per cent of the parent’s 199 In the Marriage of Elaine Fay Gyselman Applicant/Wife and Robert George Gyselman Respondent/Husband [1991] FamCA 93 (Nicholson CJ, Fogarty and Nygh JJ). 200 Recent examples include Bertram-Power & Power [2013] FamCA 520; Firth & Hale-Forbes [2013] FamCA 334; Masoud & Masoud [2013] FamCA 763; Skinner & Cluny [2013] FamCA 301. See further Lisa Young, Geoff Monahan, Adiva Sifris and Robyn Carroll, Family Law in Australia, 8th edn, LexisNexis, Sydney, 2012, pp 687–96. 201 Gyselman [1991] FamCA 93, [39] (Nicholson CJ, Fogarty and Nygh JJ). For more detailed information on the reasons for change of assessment, see Department of Social Services, Australian Government, ‘Child Support Guide, 9 May 2014, ‘2.6.2 What Are the Reasons for a Change of Assessment?’, . 202 Firth & Hale-Forbes [2013] FamCA 334, [100] (Rees J). 203 ibid. 204 ibid. [101]–[102]. 205 For example, Sathra & Sathra [2013] FamCAFC 142, [57]–[58] (Ainslie-Wallace, Ryan and Rees JJ). 206 Reason 4 is that ‘[t]he child support assessment is unfair because of the child’s income, earning capacity, property or financial resources’ while Reason 5 is that ‘[t]he child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child’.

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income for child support purposes, and travel costs only where a parent has more than 14 per cent of time) (Reason 1, reflecting CS(A)A section 117(2)(b), (2B) and (2C)). • The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs (being needs that are out of the ordinary, arising as a result of a disability or special ability of the child) (Reason 2, reflecting CS(A)A section 117(2)(b)(ia)). • The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended (most commonly, the payment of private school fees) (Reason 3, reflecting CS(A)A section 117(2)(b)(ii)). • The costs of maintaining a child under 12 years of age are significantly affected by the high childcare costs for the child (these costs being more than five per cent of the parent’s income for child support purposes; as noted earlier (11.4), childcare costs are not factored into the costs of children in the formula) (Reason 6, reflecting CS(A)A section 117(2)(b)(ib) and (3B)). • The parent’s necessary expenses significantly reduce their capacity to support the child (extending to commitments reasonably necessary to enable a parent to support himself, which may include repayment of debts)207 (Reason 7, reflecting CS(A)A section 117(2)(A)(iii)(A)). • The child support assessment is unfair because of a parent’s income, earning capacity, property or financial resources. This category is often relevant when a change of assessment is sought, including when the actual income and/or wealth of a father is higher than his taxable income (for example, because he is self-employed and is able to minimise his taxable income or works for cash and is not declaring his true income to the ATO), and less commonly when the father’s income is significantly higher than the income cap in the formula (11.4).208 It also covers cases where a parent has left or reduced his employment in order to avoid paying child support. However, the current definition of ‘earning capacity’ (CS(A)A section 117(7B)), introduced from 1 July 2006 and reflecting the Taskforce’s recommendation,209 has led to a stricter and more technically complex test than the pre-existing more discretionary position210 and it now appears more difficult to establish that child support liability should be

207 Gyselman [1991] FamCA 93, [102]–[104] (Nicholson CJ, Fogarty and Nygh JJ). 208 For example, Stirling & Dobson [2011] FMCA 52, in which a departure order was made in relation to a father with an average weekly income of $17,200 and assets of about $30 million. The mother had assets and financial resources of about $14 million, and a new partner with assets and financial resources of over $100 million who conceded that he would meet any shortfall in child support. Walter FM reasoned that special circumstances existed because ‘the quantum of child support that Mr Dobson has been paying (and proposes to pay in the future) is not commensurate with the children’s proper needs when regard is had to the overall financial position of both Mr Dobson and Ms Stirling’ ([195]). 209 Ministerial Taskforce on Child Support, above n 1, p 198. 210 Lisa Young, ‘Earning Capacity and Child Support: The Fascination with Motivation Continues’ (2004) 10 Current Family Law 178.

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increased, working in favour of fathers seeking to minimise their liability.211) (Reason 8, reflecting CS(A)A section 117(2)(c)(ia) and (ib)). • The parent’s legal duty to maintain another person significantly reduces their capacity to pay child support (for example, the legal duty to pay FLA child maintenance to support a step-child (11.8.1) or an adult child (11.8.2) or an ex-partner (Chapter 15) or to support a current partner due to her illness or incapacity) (Reason 9, reflecting CS(A)A section 117(2)(a)). • The parent’s responsibility to maintain a resident child significantly reduces their capacity to pay (relevant in limited circumstances, being when the father lives with and is responsible for financially supporting a child in need of that assistance of his current partner of at least two years due to the both biological parents’ inability to provide that support: CS(A)A section 117(10))212 (Reason 10, reflecting (CS(A)A section 117(2)(aa)). As noted earlier, if one of the reasons is established, the Registrar must also consider (CS(A)A section 117(1)(b) and 98C(1)) whether changing the assessment would be ‘just and equitable’ (having regard to the matters set out in CS(A)A section 117(4)) and ‘otherwise proper’ (having regard to the matters set out in CS(A)A section 117(5), extending to the interests of the taxpayer213). The DHS-CS website notes that ‘the department frequently uses the terms “fair” and “unfair” when discussing these concepts’.214 However, the legislation sets out an array of factors to be considered and failure to address these will leave the decision open to appeal. For example, recently in Sathra & Sathra215 the father appealed against FCoA departure orders (made in the context of an ongoing parenting dispute) that, in addition to periodic child support ordered in 2006, the father pay half of the children’s private school fees and various educational expenses. The father argued that his income and assets had decreased dramatically so that the 2006 orders were now unjust and inequitable and that the trial judge had ‘failed to take into account [that] relevant evidence; make necessary findings required by the [CS(A)A]and failed to give adequate reasons for the orders made’. The reasons of the Full Court, allowing the appeal, included that the trial judge had erred in not referring fully to evidence of the father’s financial position and in not properly considering the section 117(4) ‘just and equitable’ factors.

11.5.3 Child support agreements Private agreements have provided another way of modifying, departing from, or avoiding child support assessment altogether since the establishment of the CSS, but have become a

211 Lisa Young, ‘Earning Capacity and Child Support’, paper presented at the International Symposium on Child Support, Australian National University, Canberra, 28–30 October 2013. 212 CS(A)A pt 6A and pt 7, div 4. For a more detailed consideration of the various grounds, see Young et al. above n 200, pp 682–98. 213 Gyselman [1991] FamCA 93, [144] (Nicholson CJ, Fogarty and Nygh JJ), referring to s 117(5)(b). 214 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.6.17 Would a Change Be Just and Equitable?’, . 215 Sathra & Sathra [2013] FamCAFC 142 (Ainslie-Wallace, Ryan and Rees JJ).

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more viable option following the 2006–08 child support amendments.216 This is consistent with a broader shift in Australian family law towards private agreement in parenting (Chapter 7) as well as FLA financial matters (Chapter 14). Specifically, since July 2008, parents wishing to agree privately can choose between ‘binding child support agreements’ (CS(A)A section 80C) and ‘limited child support agreements’ (CS(A)A section 80E).217 Pursuant to transitional provisions enacted as part of the July 2008 amendments, agreements made before 1 July 2008 and intended to operate after this date were reviewed by the Registrar and were either allowed to continue as a special form of binding financial agreement if their provisions were not affected by the amendments, or terminated.218 Both binding and limited child support agreements must be in writing and signed by the parties (CS(A)A sections 80C(2) (binding) and 80E(1) (limited)) and cannot be varied once made, but can be terminated by a new child support agreement or by a written agreement to terminate (CS(A)A sections 80CA(1), 80D(1) (binding), 80F(1), 80G(1) (limited)). Both forms of agreement can provide that child support is paid in varying ways (CS(A)A section 84)—for example, periodically, by lump sum (11.6.5.2), or by payment for particular items or services (not restricted to items that may be the subject of non-agency payments (11.5.4.1)). The key differences are that limited child support agreements are more restricted in their scope and less binding than child support agreements, and do not require independent legal advice for entry. Specifically, the amount payable under a limited child support agreement must be no less than the assessed amount at the time the agreement commences, and limited agreements can be terminated by either of the parties after three years or if the amount of child support that would be payable under a child support assessment changes by more than 15 per cent (CS(A)A section 80G(1)(d) and (e)). In contrast, binding child support agreements can be more unfair in their terms than limited child support agreements (they may be for less than the assessed amount) and are more difficult to set aside unilaterally once made, so their acceptance by the Registrar requires (among other things) certification that each party has received independent legal advice (CS(A)A section 80C). Entry into binding child support agreements is thus broadly aligned with the entry requirements for binding financial agreements under the FLA,219 with 216 Pre-amendment, if the parent with main care of the children was receiving more than the base rate of FTB A, the agreement had to be approved by DHS-Centrelink and usually this occurred only if the amount of child support being paid under the agreement would be at least as much as would be payable under the formula: Ministerial Taskforce on Child Support, above n 1, pp 201–2. 217 While FLA s 84(5) makes clear that the same document may be both a child support agreement and a financial agreement under the FLA, it has been viewed as preferable to keep them separate, due to ‘risk that if the child support provisions are set aside everything may be re-negotiated. The risk is compounded by the disparity in the wording upon which financial agreements and binding child support agreements can be set aside in relation to changes in circumstances relating to children’: Jacqueline Campbell, Financial Agreements: Better or Just More Complicated?, Forte Family Lawyers, Melbourne, 17 March 2009, , p 7. 218 See further Keane & Keane and Ors [2013] FamCA 332 (Watts J). 219 Although the child support legislation continues to reflect the wording of the FLA s 90G in 2003, prior to muchlitigated 2009 amendments commencing on 4 January 2010: Chapter 12.

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a similar level of faith being placed in the capacity of independent legal advice to provide an effective supervisory role (Chapter 14). Similarly, inequality of bargaining power may exist between parents making private agreements due to gender and (related) economic inequality220 and there is a lack of evidence suggesting that independent legal advice resolves these issues.221 Arguably, independent legal advice may be more effective in the context of child support agreements because parents have separated, but the tendency noted in research for mothers to trade away property for more parenting time222 may have an adverse impact on their negotiation of child support agreements. Also problematic is the apparent assumption in relation to binding child support agreements that independent legal advice provided to the parties is enough to protect the most vulnerable people in the equation—children—who are not parties to, yet are directly affected by, entry into such agreements. Better (although still not failsafe) options for improving procedural protections for vulnerable parties entering binding child support agreements might have included DHS-CS approval (as well as registration) of agreements, the provision of a cooling-off period, and strict disclosure requirements with heavy sanctions for non-disclosure in all cases (in addition to nondisclosure being a ground for setting aside binding child support agreements, as CS(A)A section 136 provides). A key impact of child support agreements (binding or limited) once registered is that FTB A is assessed on the ‘notional assessed’ amount of child support (that is, it will be assumed for FTB A purposes that the amount of child support being paid under the agreement is the amount that would have been paid under the assessment (or change of assessment if made)). To guard against the possibility that the notional assessment may change due to changes in the parties’ circumstances with a consequent impact on FTB entitlements, the legislation provides scope for revisiting notional assessments (CS(A) A section 146F). So, for example, if parents enter a binding child support agreement stipulating that the father will pay child support of $5,000 per child for their two children who are living with the mother and one year later one of the children goes to live with the father, a new notional assessment could be requested to align FTB A payments with the parties’ changed parenting arrangements. The legislation also sets out various grounds on which a court may set aside a binding or limited child support agreement (CS(A)A section 136). The grounds are similar but not identical to those for avoiding binding financial agreements (Chapter 14). They reflect the standard contractual grounds for refusing performance (such as fraud, non-disclosure, undue influence, duress and unconscionability) and are wider for limited than binding child support agreements. Specifically, a limited child support agreement may be set aside when ‘because of a significant change in the circumstances of one of the parties to the agreement, or a child in respect of whom the agreement is made, it would be unjust not 220 Marcia Neave, ‘Private Ordering in Family Law: Will Women Benefit?’ in Margaret Thornton (ed.), Public and Private: Feminist Legal Debates, Oxford University Press, Melbourne, 1995, pp 144, 168. 221 On the limited effectiveness of independent legal advice in other contexts, see further Belinda Fehlberg and Bruce Smyth, ‘Binding Pre-Nuptial Agreements in Australia: The First Year’ (2002) 16 International Journal of Law, Policy and the Family 127; Belinda Fehlberg, Sexually Transmitted Debt: Surety Experience and English Law, Clarendon Press, Oxford, 1997. 222 Kaspiew et al., above n 5, p 227.

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to set aside the agreement’ or ‘that the agreement provides for an annual rate of child support that is not proper or adequate, taking into account all the circumstances of the case (including the financial circumstances of the parties to the agreement)’ (CS(A)A section 136(2)(c)). In contrast, a binding child support agreement may be set aside when ‘because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside’ (CS(A)A section 136(2)(d)). Section 136(2)(d) has been the subject of several decided cases. In 2012, Richard Ingleby analysed the early cases, noting that the section imposes three hurdles for the applicant: (1) exceptional circumstances after making the agreement; (2) hardship; and (3) general discretion imported by the word ‘may’. His analysis underlined that even when exceptional circumstances were established, agreements could still be upheld due to (2) (that is, absence of hardship to the father) or (3) (for example, the father’s responsibility for his own misfortune, or taking into account the overall financial package and outcome for the respondent if the agreement was set aside).223 While it might have been thought that section 136(2)(d) would be likely to be utilised by mothers with primary care of children, Ingleby’s analysis suggested that the reverse was the case, and also the more general point that courts are unlikely to set aside agreements if the effect of doing so would be to reward bad behaviour.224 A recent example is Keane & Keane,225 in which Watts J refused a father’s application to set aside the binding child support agreement entered with the mother in relation to their two children, aged 16 and 14 at the time of the hearing. The agreement was entered in 2004 and deemed by the Registrar to be a binding child support agreement when the 2008 amendments came into effect. Reviewing the case law on the meaning of ‘exceptional circumstances’ in the family law context, Watts J concluded that the father’s redundancy and failure to obtain new employment, along with his remarriage and two new children, were not circumstances that individually or cumulatively satisfied the test. Focusing on use of the word ‘exceptional’ in the section, Watts J saw ‘considerable merit in the view that there is in fact a qualitative difference between the expressions “exceptional” as used in section 136 [CS(A)A] and “special” as 223 Richard Ingleby, ‘When Are Binding Child Support Agreements Binding?’, paper presented at the Law Institute of Victoria Family Law workshop, Melbourne, 20 July 2012. 224 See, e.g., Balzano and Balzano [2010] FamCAFC 11, [66], in which the Full Court (Warnick J, hearing an appeal from the then FMC) refused the father’s application to set aside a binding child support agreement as he was incarcerated and unable to earn an income. The father’s incarceration was due to criminal conviction for soliciting to murder the mother. The Court considered that while the father’s incarceration was self-induced it was still an ‘exceptional circumstance’, but that his hardship if the agreement was not set aside was not established. As a matter of discretion, the Court would not release the father from his agreement as it would be unfair for the mother not to have the opportunity to enforce the agreement if the father did come into any money. It was in the exercise of discretion that policy considerations prevailed: ‘What is the justice, not as a matter of public policy or condemnation, but as bearing on the justice of the alternatives available, of relieving the husband of his obligations under the agreement, when the very basis of his application arose from a criminal act of which the mother was the intended victim? How fair would it be to the mother, having carried alone the financial burden of raising the children for four years, if the father prospers, (as he well might—though I make no finding that he will) but has been relieved of any obligation to reimburse the mother?’ 225 Keane & Keane and Ors [2013] FamCA 332 (Watts J) (Keane & Keane).

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used in section 117 [CS(A)A]’ and noted that the intention of Parliament in enacting section 136(2)(c), set out in the Explanatory Memorandum, was that ‘[i]t is not intended that binding agreements should be set aside lightly’.226 This led Watts J to suggest that ‘in most cases’ remarriage with children would not be an exceptional circumstance227 and that redundancies were not unusual. A conclusion against the father was, however, encouraged by the findings that, before retrenchment, the father had stopped making payments to the mother under the agreement and that for the three years since retrenchment ‘the father has decided not to work in paid employment at all’.228 Further, Watts J made clear that if exceptional circumstances had been established he would have found the father’s hardship to have been established, but that in the overall circumstances of the case (particularly the father not exercising his earning capacity since 2009) discretion to set aside the agreement would not have been exercised. The underlying policy message thus appeared to be that the court would not agree to the father’s request for the agreement to be set aside on the basis of circumstances that were largely within his control, particularly his financial hardship increased by his own unwillingness to seek employment. In contrast, in the recent case of Hampson & Bailey229 a mother applied to have a binding child support agreement set aside. The agreement was entered in 2009 and provided (among other things) that the father would pay their four children’s private school fees and expenses, specifying a particular school for the two youngest children. By the time of the trial, the two younger children were still at secondary school and lived with the mother, while the two older children had finished school and were living independently, one studying at university and the other working part time. McGuire J held that the mother’s decision to move to Melbourne and to send the two younger children to a different school constituted an exceptional change of circumstances, adopting a definition resembling the approach that has been taken in relation to FLA section 79A(1)(d)/90SN(1)(d) applications to revisit property orders (13.9.2): I am satisfied therefore that the onus and test of exceptional circumstance is [a] qualitative one of being outside of the normal vicissitudes of life and one that was not and should not have been reasonably contemplated or expected within the particular factual platform of the case at point and that the circumstances arose after the making of the agreement and including a consideration of whether or not the applicant was the author, instigator or contributor to the change which may raise some public policy considerations.230

Although the mother conceded a longstanding desire to move to Melbourne, the equal shared time parenting arrangement in place at the time the binding child support agreement was made along with stipulation of a particular school for the younger children in the agreement. This supported the conclusion that the mother did not expect to move to 226 ibid., [61], citing the Explanatory Memorandum to the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007 (Cth). 227 Although it may in most cases be a material change of circumstances in the context of a binding financial agreement (FLA s 90K(1)(d)): Keane & Keane [2013] FamCA 332, [75]. 228 Keane & Keane [2013] FamCA 332, [81]–[92]. 229 Hampson & Bailey [2013] FCCA 1004. 230 ibid., [31].

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Melbourne at that time. The change in the two younger children’s living arrangements from equal shared to primary mother care occurred sometime later and was the result of their views and preferences rather than being instigated by the mother or having been reasonably foreseen by the parties when they entered the agreement. Justice McGuire also concluded that the mother would suffer hardship if the agreement was set aside, taking the view that although the mother was ‘a person of considerable means’ (having assets and resources of about $6 million), ‘hardship’ was a matter to be determined on the basis of the circumstances of the case. The circumstances were that the mother had an expectation that the father would pay the school fees and if the agreement were enforced he would be released from that obligation, given that the children would not be attending the stipulated school and agreements cannot be varied under the legislation. Having set aside the agreement, Maguire J made a departure order for payment of school fees and periodic maintenance for the two younger children, and an order for adult child maintenance for the child at university. Once again, the policy message appeared to be that the legislation would not be used to benefit fathers who seek to avoid their child support obligations. While the approach taken by courts in relation to CS(A)A section 136(2)(d) so far appears encouraging, it should also be kept in mind that vulnerable parents are unlikely to be financially or emotionally equipped to apply for orders to set aside binding child support agreements; this underlines our emphasis earlier on the importance of adequate protections at the point of entry.

11.5.4 Flexibility regarding timing and form of payments The operation of the CSS reflects a preference for periodic payments (that is, payment of a regular amount on a recurring basis). For example, for a child support (or other maintenance liability) to be collected by DHS-CS, it must be for a periodic amount231 and child support collected from fathers by DHS-CS is disbursed monthly (CS(RC)A section 76(1)). There are, however, a number of options for parents who wish to organise their payments differently. These include the possibility of the father making non-agency payments (including in Child Support Collect cases) or lump sum payments (except in Child Support Collect cases).

11.5.4.1 Non-agency payments When both parents agree, payments may be made by one parent to the other or to a third party in lieu of child support and credited by the Registrar against child support liability. The range of payments that can be made to third parties is very wide, including, for example, food, clothing and household goods, rent and mortgage payments, household bills (such as electricity or council rates), childcare, education, medical and sporting expenses, travel and holiday expenses, and car expenses.232

231 With the exception of parentage overpayment orders for monetary payment (CS(A)A ss 107, 143). 232 Department of Human Services, Australian Government, Payment Methods for Child Support, 8 May 2014, .

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Parents, however, will not always agree on such payments. In particular, and as noted earlier (10.2.3), fathers often express concern that they lack control over how their child support payments are spent, leading to the risk that payments may be being spent by mothers on their own personal needs rather than on the children.233 Beginning in 1992,234 these concerns have been increasingly addressed and from 1 July 2008 the Registrar may credit the father’s expenditure on certain items against up to 30 per cent of his total child support liability for that child support period (CS(RC)A section 71C).235 This may occur regardless of whether the mother agrees. The father must have less than 14 per cent of care of the children (as a father with regular time is already assumed to meet 24 per cent of the costs of his children directly through care: 11.4). Also, payments or services must fall within Regulation 5D of the Child Support (Registration and Collection) Regulations 1988 (specifically, childcare costs; school fees; school books and uniforms; essential dental and medical costs; the mother’s housing (including utility) costs; and the mother’s car-related costs (including fuel)). Payments may be in the form of a cash or non-cash transactions (for example, the transfer of property or the provision of services by the father), and may be made to the mother or to a third party. So, for example, a father who services the mother’s car, pays the children’s school fees directly to the school or pays for the children’s orthodontic bills would be able to claim those costs as non-agency payments provided he has care of the children for less than 14 per cent of the time. This gradual shift towards mandating greater payer control is problematic. The accuracy of the concern that child support is not being spent by mothers on child-related expenses is questionable and the increased level of control that has been given to fathers may be perceived and experienced negatively by mothers as a further control on their independence and financial decision-making power after separation.

11.5.4.2 Lump sum payments Child support payments can also be made by lump sum pursuant to court order (CS(A) A section 123A), or (more commonly) pursuant to a binding child support agreement (11.6.6). The Registrar credits the lump sum amount when notified that payment has been made in accordance with the court order or agreement (CS(RC)A section 69A). The lump 233 Bruce Hawthorne and C J Lennings, ‘The Marginalisation of Non-Resident Fathers: Their Post-Divorce Roles’ (2008) 49 Journal of Divorce and Remarriage 191; Natalier, above n 7. Natalier’s research suggests that both mothers and fathers see child support as ‘special money’ but that mothers are more likely to see it as money to be spent for children (allowing it to be spent in ways that benefit children but may not be child-specific, such as rent or utilities bills) while fathers see it as money to be spent on children (to be spent on items and experiences to be directly consumed by children, such as education-related costs and clothing). 234 The current position has changed considerably from the initial requirement that payments be made to the CSA for maintenance liabilities were registered with the CSA. Change began in 1992, when the position changed slightly, so that in special circumstances the CSA could credit an amount not made to it as a non-agency payment if both payer and payee intended the payment as a child support payment. From 1 July 1999, payers were allowed to direct spending of up to 25 per cent of their child support payments on specific items essential for their children as set out in the Regulations (e.g., childcare costs, school fees, and essential medical and dental costs), even against the wishes of the payee. The requirement of special circumstances was also removed, and non-agency payments not in the form of cash allowed: Ministerial Taskforce on Child Support, above n 1, p 53. 235 A further option would be to obtain a court order to make payments in non-periodic amounts, to allow payments to be made for a similar range of items: CS(A)A s 124.

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sum must equal or exceed the amount payable under that assessment, and may include a transfer of property (for example, transfer of one parent’s share of the family home to the other parent) (CS(A)A section 123A(2) (court orders) and section 84 (7)(c)(ii))(binding agreements)).236 No pro rata reduction in child support liability occurs when child support is paid by lump sum. However, where a parent’s lump sum payment exceeds the amount of child support payable for the current child support year, the remaining balance is increased at the end of the financial year in accordance with the Consumer Price Index. The 2006–08 amendments have provided increased flexibility to parents wishing to make lump sum payments. This change is likely to have affected a small number of cases, which makes it all the more difficult to discern impact, including any unintended consequences for property settlements in those cases. In the first edition of this book, we suggested that once lump sum orders and agreements for child support were easier to arrange it would be more likely that section 79 (and now section 90SM) adjustments in favour of mothers would diminish because the remaining pool of property available for division will be smaller. The relationship between child support, property, and parenting arrangements is discussed in Chapter 10.

11.6  Enforcement Once a child support (or child or spousal maintenance) liability is registered with DHS-CS, amounts payable are debts due to the Commonwealth by the father (CS(RC)A section 30). The mother is not allowed to take action to enforce payment of arrears unless (following amendments which took effect on 1 January 2007) she notifies the Registrar of her intention to take court action to do so (section 113A CS(RC)A). That such cases are uncommon is unsurprising given the emotional and financial cost of applying to court. In the reported cases so far, the main issue has been whether the court can hear the application given the presence of the section 113A requirement of Registrar approval.237 In addition to taking court action to enforce the debt (which may result, for example, in orders for seizure and sale of property, or for the debt to be paid out of the father’s earnings, bank accounts or debts repaid to him by third parties, or for appointment of a receiver),238 the Registrar has a number of other enforcement and collection options under the CS(RC)A, which have increased over time. They include: • imposing penalties for late payment of child support; • taking court action to enforce the debt; 236 See further Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘5.3.3 Crediting Lump Sum Payments, . 237 See, e.g., Campano & Tenuta [2013] FMCAfam 230 (Scarlett FM). The mother could also take enforcement proceedings if she, or she and the father jointly, have elected to have the liability not enforced under the Act (CS(RC)A s 38A), or if the Registrar has decided this (CS(A)A s 39B), as the debt would be a private debt owed to her by the father. However, in both instances the more likely scenario would be for the mother to apply to the Registrar for the liability to again become enforceable under the CS(RC)A. 238 Chapter 20; Family Law Rules 2004 (Cth), div 25B.11; Federal Circuit Court Rules 2001 (Cth). The Court may also set aside transactions designed to defeat child support (and other maintenance) liabilities: CS(RC)A s 72C.

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• intercepting the tax refund of a father who owes a child support debt and redirecting it to the payee; • requesting that amounts be withheld from a father’s DHS-Centrelink payments; • serving a notice on a third party who owes money to a father directing that they pay that money to DHS-CS; and • prohibiting a father who owes child support from leaving Australia until satisfactory arrangements are made regarding the debt.239 Following the Taskforce’s report,240 Federal Government funding of $877 million over five years for implementation of the 2006–2008 child support amendments included $165.1 million to fund the ‘Improving Compliance’ program (comprising seven projects to improve the accuracy of child support assessments and the amount of child support paid) and $146.6 million to fund the ‘Building a Better CSA’ (BBCSA) program (to improve service delivery and customer satisfaction)241 (11.7.2).

11.7  Child support after the 2006–08 amendments: research and evaluation In contrast to the 2006 shared parenting amendments, which have been the subject of substantial research and evaluation, the 2006–08 child support amendments have received much less attention, and the main findings of a major ANU study of the impacts of the changes are yet to become available.242 Many questions continue to surround the impact of the changes and the effectiveness of increased funding invested in improving compliance.

11.7.1 Impact of the 2006–08 amendments A significant concern prior to the child support amendments taking effect was that there was no publicly available modelling (as opposed to modelling done internally by the Australian Government Department of Social Services (DSS, then known as the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)) estimating the impact of the new system on mothers and fathers already in the system. Modelling 239 CS(RC)A ss 67, 113, 72, 72A, 72AA, 72AB, 72AC, 72AD, pt VA. 240 Ministerial Taskforce on Child Support, above n 1, Recommendation 2. 241 Australian National Audit Office, Child Support Reforms: Stage One of the Child Support Scheme Reforms and Improving Compliance, Report No. 19, Australian National Audit Office, 18 December 2009), [9], [12], . The funding also included $582.2 million to fund implementation of the child support reforms. 242 Bruce Smyth and Bryan Rodgers, Changes in Payments, Family Dynamics and Wellbeing Following Major Child Support Reform: A Longitudinal Investigation of Behavioural and Attitudinal Responses, (short title: Child Support Reform Study), ARC Linkage Project: LP0989558, Australian National University, Canberra. Publications from the project so far include Smyth et al., above n 53; Bruce Smyth, Bryan Rodgers, Vu Son, Liz Allen and Maria Vnuk, ‘Separated Parents’ Knowledge of How Changes in Parenting-Time Can Affect Child Support Payments and Family Tax Benefit Splitting in Australia: A Pre-/Post-Reform Comparison’, above n 105; Bruce Smyth, Richard Chisholm, Bryan Rodgers and Vu Son, (forthcoming), ‘Legislating for Shared-Time Parenting: Insights from Australia?’, above n 182; Vu Son, Bryan Rodgers and Bruce Smyth, ‘The Impact of Major Child Support Reform on the Financial Living Standards of Separated Families in Australia’, above n 282, see Bruce Smyth and Bryan Rodgers, Submission to the Parliamentary Inquiry into the Child Support Program, 12 June 2014, .

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done for the Taskforce provided an indication of the impact of the child support formula changes, but this was an incomplete picture as it did not factor in the social security and tax changes associated with the child support amendments.243 While it was acknowledged even at that early stage that fathers would pay less after the amendments came into effect, there was disagreement regarding the extent to which losses to mothers and children would be offset by other changes. For example, the Taskforce’s view was that: Overall, the effect of the proposed formula will be that the majority of payers will pay less than they do at present, but a substantial minority will pay more. Furthermore, improvements in compliance will mean that more children receive the child support that they ought to receive.244

Similarly, the chairman of the Taskforce, Professor Patrick Parkinson, considered that that 55–60 per cent of child support assessments would reduce (that is, children would receive less child support) under the new formula.245 However, Parkinson (and also the AIFS) also considered that reduced child support payments may be offset by other aspects of the reform package and that the 250 per cent real increase in family payments since the current formula was introduced in 1989 should be taken into account.246 This, however, did not tally with calculations by the National Council for the Single Mother and Her Child (NCSMC), which showed that, even taking all of this into account and without factoring in the welfare-to-work changes, the child support amendments would still result in an overall drop in income of $10 to $20 per child per week.247 This was a serious concern, given the continuing reality that sole parent families are among the most financially disadvantaged in the community. These concerns were reflected in additional comments by Labor and Greens Senators to the Senate Committee on Community Affairs report on the then Bill.248 Findings of research conducted soon after implementation of the amendments have indicated that the NCSMC’s predictions have materialised. Most significantly, Bruce Smyth and Paul Henman analysed data published by DSS (then known as FaHCSIA), comprising a ‘before and day after’ reform comparison of assessed liability and FTB for all cases registered with DHS-CS and assessed using the administrative formula (at that time, 691,000 cases).249 Smyth and Henman’s analysis found250 that the major ‘winners’ following the amendments were likely to be non-resident fathers who had regular contact with their 243 Ministerial Taskforce on Child Support, above n 1, p 225. 244 ibid., p 268. 245 Senate Standing Committee on Community Affairs, Parliament of Australia, Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Bill 2006 [Provisions] (2006), p 1.41 [13], . 246 ibid., p 35. 247 ibid., referring to the NCSMC submission. 248 ibid., pp 34–6. 249 Smyth and Henman, above n 11. See further Department of Families Housing, Community Services and Ingenious Affairs, Australian Government, Report on the Population Impact of the New Child Support Formula, 22 October 2008, available at . 250 Smyth and Henman, above n 11, pp 26–7.

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children, high incomes and/or second families. Among the hardest hit were likely to be low-income families and resident parents with part-time or casual employment (with losses estimated at around $20 or less a week, which ‘is likely to be a significant imposition in lowincome households’).251 In the study, just over half of receiving parents were sole parents receiving income support while one-quarter of paying parents were in this position (and, even if they were, would typically have fewer dependents than child support recipients),252 so this decrease would be more commonly experienced by low-income households comprising women and the children living with them. However, low-income fathers with second families and regular care were also likely to experience an overall loss (loss of FTBsplitting by fathers appeared important here). At around the same time, Tracy Summerfield, Lisa Young and colleagues developed two models, drawing on 2006 CSA data, to determine the combined economic impact for single parent families of the child support and welfare-to-work changes. According to their modelling, ‘resident parents with low incomes received less child support after the reforms than they received before the reforms’. More broadly, they concluded: Our modelling lends support to the claim that the combined reforms may act to increase, rather than decrease, the incidence and extent of poverty in single parent households. State support to single parents has reduced at the same time as child support payments have reduced for resident parents most vulnerable to poverty (that is, those on the lowest of incomes). This has not been ameliorated by meeting the [welfare to work] workforce participation requirements. [Our modelling indicates that] the resident parent with below-average earnings is significantly worse off after the reforms than they were before the reforms.253

Findings from Waves 1 and 2 data of the AIFS Longitudinal Study of Separated Families (LSSF), comprising a national DHS-CS sample separated after the 2006 shared parenting amendments and interviewed at Wave 1 as part of the AIFS evaluation of the 2006 shared parenting amendments, found at Wave 2 that ‘fathers were more likely than mothers to consider that child support payments were (somewhat or very) fair for them’,254 and that ‘[m]others with majority care made up the largest proportion of parents reporting financial difficulties and were more likely to be receiving government income support than others’.255 251 ibid., p 16. While FaHCSIA released an updated analysis covering the first six months post-reform, which ‘predicted a slight improvement in the circumstances of receiving parents compared to the analysis in the first report’ (ibid., p 30; see further Department of Families, Housing, Community Services and Ingenious Affairs, Australian Government, Updated Report on the Population Impact of the New Child Support Formula, Department of Social Services, 2009, ); this might (as FaHCSIA suggested) be due to several reasons including 4% of children in the active caseload turning 13 over that period, resulting in higher child support assessments. 252 Smyth and Henman, above n 11, pp 18–21. 253 Tracey Summerfield, Lisa Young, Jade Harman and Paul Flatau, ‘Child Support and Welfare to Work Reforms: The Economic Consequences for Single Parent Families’ (2010) 84 Family Matters 68. 254 Qu and Weston, above n 5, p 128. Specifically, ‘[j]ust over half of the father payers expressed a sense of fairness in both survey waves, and one-fifth consistently indicated a sense of unfairness. Fewer than two in five mother payees consistently expressed a sense of fairness and nearly one in three consistently said that the payments were unfair for them’, p 134). 255 Qu and Weston, above n 5, p vii.

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These findings suggested that the concerns of fathers had been addressed to a greater extent than those of mothers (11.2.4). Qualitative research conducted by Fehlberg and colleagues after the 2006–08 amendments256 and involving repeat interviews with 60 separated parents once a year over three years from 2009 to 2011 indicates several ways in which the new formula may operate to increase the risk of financial disadvantage for mothers. First, they noted ‘the unevenness of infrastructure expenditure in cases involving regular care’,257 despite the assumption in the formula that fathers with regular care meet 24 per cent of the costs of their children directly through care (11.4). A second and related concern is whether fathers are now seeking regular care (that is, 14–34 per cent of nights) with their children in order to reduce their child support liability (see also Chapter 10). While AIFS evaluation data derived from family law professionals suggested that child support is a ‘strong motivation’ for seeking particular parenting arrangements,258 Fehlberg and colleagues’ small-scale study did not find clear support for this259 although it did provide clear examples of fathers who admitted seeking more parenting time to reduce their child support liability and mothers who said they resisted shared time to avoid a reduction in their child support and FTB payments. It appeared, however, that mothers were more clearly focused on protecting their children’s financial interests rather than just their own.260 Finally, their study contained cases where mothers were liable to pay child support, raising the question whether this has become more common after the 2006–08 changes. The answer to this question is not clear but their data suggest it should be an area of concern, as mothers are generally poorer than fathers and, as noted earlier (11.2.3), their liability to pay child support may arise in complex circumstances including family violence leading to shared time or primary father time, and/or strategies used by the father to minimise his income (for example, quitting his job or being self-employed).261 Most recently, research by Vu Son, Bryan Rodgers and Bruce Smyth,262 involving repeat interviews with a random sample of 1,560 Child Support Agency clients before and after the introduction of the new formula, suggested that, consistent with the post-2008 research already referred to, fathers are as a group better off and mothers are worse off after the changes. Mothers’ disadvantages may ease over time, but the reasons for this are complex. To the extent the CSS has had an impact it appears to have made things worse for mothers, who were more financially disadvantaged than fathers pre-amendment. 256 257 258 259 260

Millward and Fehlberg, above n 170; Fehlberg et al., above n 8. Millward and Fehlberg, above n 170, p 14. Kaspiew et al., above n 5, p 222. See also Smyth et al., above n 105; Smyth and Rodgers, above n 6. See further Alison Diduck and Felicity Kanagas, Family Law, Gender and the State: Text, Cases and Materials, 3rd edn, Hart Publishing, Oxford, 2012, p 319: ‘Because the primary responsibility for child-rearing tends to fall upon women, they are usually more in tune with the day-to-day financial requirements of childcare and exhibit stronger preferences for spending to benefit children’ (citations omitted). 261 Christine Millward, Monica Campo and Belinda Fehlberg, ‘Mothers Who Are Liable to Pay Child Support’ above n 57; Maria Vnuk, ‘Merged or Omitted? What We Know (or Don’t) about Mothers Who Pay or Should Pay Child Support in Australia’, above n 57. 262 Vu Son, Bryan Rodgers and Bruce Smyth, ‘The Impact of Major Child Support Reform on the Financial Living Standards of Separated Families in Australia’, above n 100.

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11.7.2 Improved compliance? Despite DHS-CS’s significant collection and enforcement options and increased funding for these activities following the 2006–08 amendments, major challenges continue to exist. As noted earlier, the Federal Government’s funding of the 2006–08 amendments included funding the ‘Improving Compliance’ program and the ‘Building a Better CSA’ (BBCSA) program.263 In 2010, these initiatives were the subject of two reports of the Australian National Audit Office (ANAO), neither of which suggested that increased funding has led to increased compliance. Both reports suggested that key limiting factors were DHS-CS’s ‘inexperience with implementing significant policy reforms, and not having in place a robust project management framework supported by appropriate skills and resources.’264 In relation to the Improving Compliance program, the ANAO report found that while the program was on track to meet its child support collection target for 30 June 2010, the child support compliance rate had not been maintained over the period when the 2006–08 changes were being implemented, and that it was not possible to say whether predicted FTB savings of $43 million over four years would be achieved ‘because actual FTB saving resulting from compliance measures are not assessed by departments’.265 The ANAO also found that the DHS-CS did not effectively utilise the opportunity to plan the projects constituting the Improving Compliance program: This was evident through a lack of strategic planning to identity and address key risks to the Child Support Scheme and some inadequate financial management practices regarding costing, budgeting and resourcing. The effects of these shortcomings include that some compliance risks to the Child Support Scheme remain unaddressed, and some individual projects have been unable to achieve their collection targets … Contributing to limitations of the Improving Compliance program was the delay in implementing governance frameworks and the lack of robust project management strategies (including risk management and performance monitoring and reporting).266

In relation to the BBCSA program the ANAO acknowledged the organisational challenges faced by DHS-CS in implementing the program. The ANAO concluded that, when measured against the DHS-CS’s three objectives for measuring the success of the program, ‘greatest progress has been made in improving communication with customers and stakeholders; with limited progress being made in the two remaining areas, customer service and broader organisational change’.267 The ANAO also found that: [I]n many cases where performance indicators and information was available, the momentum has not been sustained. As a consequence, the overall improvement has been limited. These results were, in part, a reflection on the limited effectiveness of 263 Australian National Audit Office, above n 241, [9], [12]. The funding also included $582.2 million to fund implementation of the child support reforms. 264 ibid., [20]. 265 ibid., [23], [50]. 266 ibid., [24]–[25]. 267 Australian National Audit Office, Child Support Reforms: Building a Better Child Support Agency, Report No. 46, Australian National Audit Office, 22 June 2010, [11], .

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some areas of [DHS-CS’s] implementation of the program, particularly the planning and monitoring and review aspects.268

In addition, an independent review was conducted for the Department of Human Services by David Richmond in 2009, to evaluate whether the DHS-CS’s business framework (that is, its rules, systems, processes and structure) supported staff to deliver high quality outcomes for its customers.269 While the report acknowledged the ‘very dynamic environment of review, change and adjustment’ in which DHS-CS operated, along with the challenges involved in working with separated families, it concluded that the reforms had not resulted in a better managed or better operated program. In particular, the report pointed to: [A] significant deterioration of the Program’s ability to achieve its basic purpose of ensuring that the child support is paid in full and on time. This was demonstrated by increases in debt between 2006 and 2008 and an increase in compliance workload, even though in all that period (and to date) there has been no change in the fundamental obligation to pay child support in full and on time.270

These reports were conducted soon after the 2006–08 child support amendments. There  have been no further major reviews and there is no clear indication in publicly available DHS information that compliance is being tackled more effectively as a result of increased funding. For example, the DHS annual reports for 2011–12271 and 2012– 13272 indicate that child support transfers have increased between 2009–10 and 2012–13, but this could be due to a number of factors including the increased number of clients registered with DHS-CS. In both reports the number of active paying parents with child support debt was reported as 24.7%, but those with child support debt were less likely to have a payment arrangement in place in 2012–13 than in the two previous financial years,273 suggesting reduced rather than increased DHS-CS monitoring in these cases. Research based on interviews with parents is similarly difficult to interpret: data from three waves of the AIFS LSSF (11.7.1) suggest continued differential reporting between mothers and fathers regarding compliance, with mother payees whose child never saw the father being the least likely to report payment being made in full and on time. The ANU Child Support Study indicates no significant compliance improvement since amendment.274 Adding to the complexity is Kay Cook’s recent analysis underlining the unintended consequences that may flow from reform in this area.275 Cook’s focus was a further measure for strengthening child support compliance, introduced as part of the 2011–12 Federal 268 ibid., [10]. 269 David Richmond, Delivering Quality Outcomes—Report of the Review of Decision Making and Quality Assurance Processes of the Child Support Program, available at , updated 16 March 2010.. 270 ibid., [2.1.4]. 271 Department of Human Services, Australian Government Annual Report 2011–12, above n 70, p 151. 272 Department of Human Services, Australian Government, Annual Report 2012–13, above n 76, p 73. 273 54.6% in 2010–11, 53.7% in 2011–12 and 51.7% in 2012–13: Department of Human Services, Annual Report 2012–13, above n 70, p 75. 274 Smyth and Rodgers, above n 242. 275 Kay Cook, ‘Child Support Compliance and Tax Return Non-Filing: A Feminist Analysis’ (2013) 11 Australian Review of Public Affairs 43.

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Budget measure, which involved changing the approach for calculating the income of fathers who do not lodge tax returns. Before the change fathers who had not filed a tax return were treated as having a taxable income of two-thirds MTAWE (2/3 of $70,659276 = $47,046 per annum). In contrast, the position now is that when a father does not lodge a tax return for two years, the income on his most recent tax return (indexed by growth in average wages since his last tax return) is used to assess child support. It was anticipated that this approach would help ensure that the father’s actual income was more accurately reflected in assessments, thus improving compliance, reducing mothers’ FTB entitlements and resulting in savings to government of $78.7 million over four years. Cook, however, argues that the change ‘unintentionally legitimises men’s non-compliance with the Australian Tax Office’ by circumventing the tax system when making a determination of child support liability, rather than enforcing their obligation to file tax returns.277 Cook further argues that the change will increase indirect financial costs for women and children, due to mothers’ increased reliance on ex-partners for financial support, leading to increased engagement with DHS-CS (given that non-filing fathers are also likely to be non-compliant fathers)278 and increased control and involvement of ex-partners and DHS-CS in their lives. Most recently, compliance was an issue for about half of the 60 participants in Fehlberg and colleagues’ qualitative study, including in Private Collect cases (for which DHS assumes full compliance). These findings, and research underlining the complexity that surrounds measuring compliance, were discussed at 11.2.3. It thus appears that fathers’ capacity to determine the financial contribution they will make has been enhanced in several ways by the new formula. Meanwhile, the ANAO and Richmond reports suggest that the opportunity (via substantial funding) to address noncompliance (including income minimisation) has not been utilised effectively. Overall, the evidence indicates that the CSS does not operate fairly, particularly to primary carer mothers and the children living with them—a serious concern given the continuing greater level of economic disadvantage experienced by this group compared to fathers as a group. Recent research also raises important questions about the impost placed on low-income mothers and low-income fathers by child support: while Smyth and Henman’s analysis suggests that low-income fathers with second families and regular care have been adversely affected following the introduction of the new formula, McKenzie’s research suggests that, for low-income women, the reliability and lesser administrative burden associated with government family assistance is preferable to the pursuit of non-compliant fathers.

11.8  FLA child maintenance provisions When a case falls outside the CSS, options exist under the FLA and the general law for imposing liability on parents—and also non-parents—to contribute to the child’s financial 276 Department of Social Services, Australian Government, Child Support Guide, 9 May 2014, ‘2.4.2 Formula tables and values, ; see section ‘Basic values used in calculating child support assessments’. 277 Cook, above n 275, p 54. 278 Alan Shephard, ‘The Australian Child Support Agency: Debt Study and Follow-up on Intensive Debt Collection Processes’ (2005) 43 Family Court Review 387, cited in Cook, above n 275, p 50.

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support. Our focus in this section is the FLA child maintenance provisions, although relatively briefly given that they are not utilised in most cases. (A further avenue not explored here is that even where there is no liability to pay child maintenance under the FLA, liability to contribute towards a child’s financial support may arise under the general law of promissory estoppel, where one party has created an expectation in the other that they will support and contribute to the upbringing of the child, and where that expectation has been relied on detrimentally.279) When an application cannot be made to DHS-CS for administrative assessment, the effect of FLA section 66E (which prevents the court from making, reviving, or varying a child maintenance order under Part VII when the CS(A)A applies) is that an application to a court exercising FLA jurisdiction is still potentially open.280 An application is usually made by the child’s parent, but can also be made by the child’s grandparent or any other person interested in the child’s care, welfare or development (FLA section 66F(1)). Applications are determined on the basis of the child maintenance provisions contained in FLA Part VII Division 7,281 with registration and collection mechanisms provided by DHS-CS once orders are registered with it (11.2.3). Two main contexts in which the option of applying for child maintenance orders will be relevant are where the person against whom financial support for the child is sought is not a ‘parent’ for the CS(A)A, or where the child in need of financial support is over age 18. These two situations are now considered.

11.8.1 FLA child maintenance liability for those who are not ‘parents’ for the CS(A)A FLA child maintenance liability may arise in relation to two categories of ‘parent’ who are outside the CS(A)A: step-parents, and ‘parents’ under the FLA. As noted earlier, some uncertainty regarding the extent to which people who are not ‘parents’ for the CSA(A) may nevertheless be viewed as ‘parents’ under the FLA and thus potentially liable to pay child maintenance. Currently, those who stand in loco parentis (for example, as foster parents) will not be liable to pay child maintenance under the FLA, 282 but some lingering doubt exists in relation to donors of genetic material (Chapter 4).

279 W v G No 4607 of 1994 Equity—Estoppel [1996] NSWSC 43. See further Jenni Millbank, ‘An Implied Promise to  Parent: Lesbian Families, Litigation and W v G’ (1996) 10 Australian Journal of Family Law 112; Danny Sandor, ‘Paying for the Promise of Co-Parenting’ (1996) 43 Family Matters 24; Dorothy Kovacs, ‘The AID Child and the Alternative Family: Who Pays? (or Mater Semper Certa Est—That’s Easy for You to Say!)’ (1997) 11 Australian Journal of Family Law 141. 280 In the Matter Of: B and J (Artificial Insemination) [1996] FamCA 124. 281 See further Young, Monahan et al., above n 200, pp 638–45. Note in particular the court’s power to make child maintenance orders it considers proper (s 66G), objects and principles of child maintenance (s 66B), the primary duty of parents to maintain a child (s 66C), and the approach to be taken to determining applications (s 66H) comprising consideration of (1) the level of financial support necessary for maintenance of child and (2) the financial contribution to be made by a party or parties. 282 Tobin v Tobin (1999) [1999] FamCA 446.

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11.8.1.1 Step-parents FLA section 4 defines ‘step-parent’ as a person who is not a parent of the child; is or has been married to, or in a de facto relationship with,283 a parent of the child; and who treats, or at any time during the marriage treated, the child as a member of the family formed with the parent. Although the FLA specifically provides for step-parent liability to pay child maintenance,284 the limited and secondary nature of this liability is repeatedly underlined. Step-parents have a duty to support children only if there is an order that it is ‘proper’ for the step-parent to have this duty (FLA sections 66D(1), 66M(1)). Any duty of a step-parent to maintain a step-child is secondary and does not derogate from the parents’ primary duty to maintain their child (FLA sections 66D(2), 66M(3)(a) and 66N). This approach seems broadly consistent with community attitudes on the issue (Chapter 10). An application for an order that a step-parent has a duty to maintain can be made independently of an application for the actual payment of maintenance. This will be relevant when the step-father has children from a previous relationship who fall within the CSS and the step-father wishes to claim that the step-child is a ‘relevant dependent child’ (11.5.1.1) or seeks a change of assessment on the basis of his ‘legal duty’ to support his step-child, to reduce his child support liability (11.5.2).285 The court has a discretionary power to make an order that it is proper for a step-parent to pay maintenance for a step-child (FLA section 66M(2)). When deciding whether to make an order (that is, in determining the threshold question of whether it is proper to make an order), the court must have regard to several matters, including the length and circumstances of the step-parent’s marriage to the child’s parent, the relationship that has existed between step-parent and step-child, and any special circumstances that if not taken into account would result in injustice or undue hardship to any person (FLA section 66M(3)). In determining the step-parent’s level of financial contribution (that is, the quantum issue), the court must have regard to the matters listed in section 66N, including a broad range of factors relevant generally to determining the appropriate level of contribution in child maintenance proceedings (FLA section 66K). While there is no specific legislative directive to take into account the child’s financial circumstances (as set out in section 66J), this matter could be captured by the ‘special circumstances’ provision in section 66M(2). In Keltie v Keltie286 the Full Court, responding to a question of law stated by Brewster FM (as he then was), held that orders can be made for maintenance of adult step-children under sections 66M and 66N. The Court considered that the terms ‘child’ and ‘children’ used in the FLA child maintenance provisions referred to a relationship rather than to an

283 Before the 2009 FLA de facto relationship amendments (Chapters 2 and 11), step-parents who had not been married to the parent of the child requiring maintenance fell outside the FLA provisions. 284 Anthony Dickey suggests that the FLA provisions regarding step-parent maintenance do not apply in Western Australia: Anthony Dickey, Family Law, 6th edn, Thomson Reuters, Sydney, 2013, p 484. 285 See further Carnell & Carnell [2006] FMCAfam 476. 286 Keltie & Keltie & Bradford [2002] FamCA 421.

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age. (Where an application is made for step-parent maintenance for a child over 18, section 66L (11.8.2) will also apply.) Reported cases involving application of the FLA step-parent maintenance provisions underline that the financial obligation of step-parents to financially support their step-children is secondary to that of the child’s parents, and more conditional.287

11.8.2 Children over 18: FLA section 66L Section 66L288 provides that the court ‘must not make’ an order for adult child maintenance unless satisfied that maintenance is ‘necessary’ for the child to complete their education or because the child has ‘a mental or physical disability’.289 Applications are determined on a discretionary basis, based on the court’s determination of (1) whether the threshold test for liability (just mentioned) has been established, and (2) the court’s assessment of the child’s needs and the respondent parent’s capacity to pay (FLA sections 66H, 66J and 66K are relevant to both steps).290 A number of general points do, however, emerge from the reported cases.291

11.8.2.1 ‘Reasonable’ rather than ‘absolute’ necessity The section 66L requirement that payment of maintenance be ‘necessary’ was originally interpreted strictly by the FCoA, to the effect that maintenance must be essential to enable the child to complete their education or due to a disability.292 Over time, the court’s approach has changed and the emphasis is now on what is, in the particular circumstances of the case, ‘reasonably necessary rather than absolutely necessary’.293 This increasing flexibility is consistent with broader law and policy shifts towards prioritising private over state avenues of financial support, along with the increasing importance of obtaining 287 A relatively recent example is M & M [2007] FMCAfam 881. Older examples are Cooper & Cooper (1989) FLC 92-017; Dodge & Krapf & Krapf (1991) FLC 92-214; Day & Day (1993) FLC 92-333; and Duncan & Duncan (1991) FLC 92-218. These cases were discussed in DRP & AJL [2004] FMCAfam 440. 288 Section 66L applies to all children over 18 years, regardless of whether their parents were ever married or lived together, as a result of the referral of powers by the states to the Commonwealth in the 1980s. In Western Australia, where no referral was made, similar provisions to FLA s 66L are found in the Family Court Act 1997 (WA), discussed in Chapter 3. See further Smith v Wickstein (1996) 21 Fam LR 118. 289 Section 66L was inserted into the FLA as a result of the Family Law Reform Act 1995 (Cth) but in its terms is consistent with judicial interpretation of former s 66H, which was inserted into the FLA in 1987 and in substance re-enacted ss 76(2) and 76(3): Butterworths, Australian Family Law, Vol 1, Butterworths, Sydney, commentary to s 66L. See further Masterton & Masterton & Anor [2012] FMCAfam 913, [42]–[44] (per Brown FM). The reported cases on maintenance of children over age 18 often involve previous incarnations of the current s 66L. 290 In Smith v Wickstein (1996) 21 Fam LR 118 the Full Court held that FLA ss 66H, 66J and 66K (general matters relevant to child maintenance applications under FLA Part VII) were relevant to claims in relation to adult children under s 66L. 291 See further Richard Ingleby, ‘Maintenance for Children over 18: Recent Developments’ (1997) 3 Current Family Law 129; Michael Watt and Cecilie Hall, ‘Obtaining Maintenance for Children over 18’ (1993) 2 Current Family Law 39. The Ministerial Taskforce on Child Support made recommendations regarding court interpretation of FLA s 66L, and of the FLA child maintenance provisions more generally, which were not acted upon: Ministerial Taskforce on Child Support, above n 1, p 33. 292 For example, In the Marriage of Mercer (1976) 1 Fam LR 11, 179; Gamble and Gamble (1978) 4 Fam LN 28. 293 Dickey, above n 284, p 485, referring to In the Marriage of Tuck (1979) 7 Fam LR 492, 504 (per Evatt CJ and Murray J), 511 (per Strauss J). The Court’s approach was adopted by a majority of the Full Court (Nicholson CJ and Baker J) in In the Marriage of Henderson (1989) 13 Fam LR 40, 43. For a recent example, see Masterton & Masterton & Anor [2012] FMCAfam 913.

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educational  qualifications in order to gain employment and difficulties faced by young adults who live independently in obtaining government financial support.294 However, the Full Court has recently reiterated that ‘a base level of necessity does have to be established before the Court is able to exercise a general discretion about the reasonableness or otherwise of making the order’.295

11.8.2.2 Relevance of the relationship between the child and parent against whom maintenance order is sought In the earlier cases, there was some suggestion that a child’s hostile attitude towards the parent against whom a claim for maintenance is made was a relevant matter in the determination of the claim.296 In subsequent cases, judges were evidently less convinced that the parent–child relationship was relevant297 but in the 2006 case of Re AM (Adult Child Maintenance) (Re AM),298 Carmody J considered that the strained father–daughter relationship was a relevant factor to be taken into account in his exercise of discretion to order the payment of child maintenance under section 66L, and this factor seemed to have significant weight in terms of the orders made (11.8.2.3). Subsequent cases have continued to refer to the quality of the parent–child relationship as a relevant factor. For example, in the 2012 FMCoA case of Masterson & Masterson,299 a significant factor weighing on Court’s decision was the ‘marked disparity in income’ between the father, and the mother with whom the 19-year-old child lived.300 However, there was ‘no viable parent and child relationship’301 between the child and his father, and this factor along with the child’s income of $18,000 from part-time employment and the father’s payment of $5,000 to the child (‘essentially a gesture of “good-bye and good luck”’)302 influenced Brown FM’s decision that ‘the amount of maintenance to be provided should be modest’, resulting in orders that the father pay $1,000 to the mother for each semester of the remainder of the child’s current university course.303 It is difficult to see why the child–parent relationship should be relevant given that this is not a factor specifically referred to in the relevant provisions,304 and in a current policy context where private support obligations are emphasised.305 The fact that proceedings have been instituted and have reached the stage of judicial determination would in most cases 294 On these broader shifts, see Bruce Smyth, ‘Child Support for Young Adult Children in Australia’ (2002) 16 International Journal of Law, Policy and the Family 22, pp 23–4. 295 Paul & Paul [2012] FamCAFC 64. 296 Mercer (1976) 1 Fam LR 11,179. See further Lisa Young and Stephanie Baxter, ‘The Fault of the Child? The Relevance of the Parent–Child Relationship in Awards of Adult Child Maintenance’, forthcoming 2014, Australian Journal of Family Law. 297 In the Marriage of Oliver (1977) 4 Fam LR 252, 254. See also Gamble (1978) 4 Fam LN 28; In the Marriage of H (1981) 7 Fam LR 451; Re C (No 2) (1992) 15 Fam LR 355, 367; In the Marriage of Cosgrove (No 1) (1995) 20 Fam LR 757, 833–87. 298 Re AM (Adult Child Maintenance) [2006] FamCA 351. See also WLD & WPA [2002] FMCAfam 253. 299 Masterton & Masterton & Anor [2012] FMCAfam 913. 300 ibid., [158]; the respective difference was $83,454 versus $17,636 [25]. 301 ibid., [155]. 302 ibid., [157]. 303 ibid., [161]–[162]. 304 The only sources of legislative support are s 66G and 66K(1)(e). Cf s 66M(3)(c) in relation to step-children. 305 Watt and Hall, above n 291, p 46; Lisa Young and Stephanie Baxter, above n 296.

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indicate the existence of a poor parent–child relationship. While it has been suggested that a poor relationship due to a parent’s conduct will not disentitle a child,306 the causes of a poor relationship are likely to be complex. Such a requirement has not been raised in the spousal maintenance context and is not relevant under the CS(A)A.

11.8.2.3 Applications on the basis of a child’s disability Applications on the basis of a child’s mental or physical disability are rare.307 The most significant recent example is Re AM.308 Re AM involved an application for child maintenance by an adult daughter, AM, against her father. AM was aged 28 at the date of the trial. She had been diagnosed in 1998 at age 21 (15 years after her parents had divorced) with a degenerative disease that virtually destroyed her ability to be employed and resulted in a need for significant ongoing care. AM had also been diagnosed with other illnesses, including osteoporosis, anorexia nervosa and depression. Her claim under FLA section 66L(1)(b) was for both periodic maintenance (of $2,256 per week) and lump sum maintenance ($150,000 for home alterations as a result of her disability). AM’s father denied liability, arguing that her illnesses had not manifested themselves until after she turned 18 when his liability had ceased and that any moral or social obligation had been met by his voluntary payments of $1,000 per month since 2003. He alternatively claimed that the strained relationship between himself and AM was disentitling. He also questioned the amount being claimed, arguing that an indefinite order should be of no more than $1,250 per month. In contrast, AM’s mother, who was joined by AM to the proceedings in a cross-claim for contribution, supported AM, accepting that she had an ongoing FLA liability to support AM during any period of proven disability, and agreeing to abide by any order apportioning maintenance between her and the father. In the FCoA, Carmody J concluded that section 66L does not refer to a ‘childhood’ disability (referring to a number of examples that underline the injustice and absurdity of making such a distinction).309 It is thus immaterial for the purposes of threshold liability whether the relevant disability arose in childhood or not, although this may have significant discretionary importance when it comes to determining the quantum and contribution issues (for example, the child’s claim may well be stronger where a disability arises when a child is 21 as opposed to 40 years of age). Carmody J also saw no reason to think that only ‘temporary’ (as opposed to ‘permanent’) disabilities are covered. Carmody J considered that two important discretionary matters to be taken into account in this case were the strained filial relationship and the indefinite duration of the periodic order sought. Emphasis on the Court’s discretionary power not to exercise its adult child maintenance jurisdiction in determining the quantum and contribution issues thus in the end allowed for the tailoring of orders to pay some regard to the father’s arguments. 306 Re C (No 2) (1992) 15 Fam LR 355 (per Fogarty J). 307 For recent examples, see Jamine & Jamine & Anor (No 2) [2011] FamCA 843 (Cronin J) and Adams & Simpson [2008] FMCAfam 1327 (Baker FM). 308 Re AM (Adult Child Maintenance) [2006] FamCA 351. See further Donna Cooper, ‘Is There a Need for a Nexus of Disability and Dependence in Adult Child Maintenance Cases?’ (2007) 28 Queensland Lawyer 70. 309 Cf In the Matter of: Fm (Husband) and Fm (Wife) [1996] FamCA 120.

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Carmody J concluded that the proven necessary financial support for AM was $1,500 per week, adjusted each year against the Consumer Price Index for Sydney, to reflect changes in the cost of living. He considered that it was fair for orders to be made for five years, and for the mother to contribute $975 of the total amount and the father to contribute the remaining $552. While acknowledging that this would impose a greater obligation on the mother, Carmody J considered that this reflected the history of financial relations in the family (that is, past conduct) and was still less than the mother was willing to pay, while being more than what father was willing to pay. Although the absence of information in the case report about the financial positions of the mother and father makes it difficult to draw firm conclusions, it does seem that the strained relationship between father and daughter had a significant impact on the orders made. Important questions arising from AM include: When does the liability of parents for their children end? Does this case effectively make parents the insurers of their children against disability?310 The answer would seem to be that the threshold liability under section 66L is broad, but that the exercise by the court of its discretion on the quantum and contribution issues may well provide some limits on parental liability. There are also indications that the notion of fault operating in this context extends beyond whether the child is responsible for their poor relationship with the father. In the more recent case of Adams & Simpson,311 the FCCoA dismissed the mother’s application for adult child maintenance in relation to the parties’ son for reasons related to the mother’s insufficient efforts to improve her son’s chances of obtaining employment. While the son had an ongoing mental disability (Asperger’s syndrome) and a physical disability (postural hypotension) and was in receipt of a disability support pension, the court was not satisfied that he lacked the capacity to work and to earn an income so that maintenance was ‘necessary’, given evidence that the child and his mother had not taken the steps recommended by Dr F, the mother’s expert witness, to seek consultation with a psychologist to assist her son to operate in a social environment. The requirement that the mother take steps to minimise the financial needs arising from their child’s disability is understandable but imposed a further responsibility on her while not requiring the father to do anything to assist.

11.8.2.4 Applications to enable a child to complete their education Most section 66L cases are made on the basis that maintenance is necessary for the child to complete their education. Masterson & Masterson,312 referred to earlier, is a recent example. In this context, the following points have emerged over time from the reported cases: • ‘Necessary to enable’ for section 66L(1)(a) presupposes at least a reasonable possibility of the child succeeding in the course of education they wish to undertake.313 310 311 312 313

W & W [2002] FamCA 1143, [37] (Barry J), referred to in AM (2006) [2006] FamCA 351, [171]. Adams & Simpson [2008] FMCA 1327 (Baker FM). Masterton & Masterton & Anor [2012] FMCAfam 913 (Brown FM). In the Marriage of H (1981) 7 Fam LR 355.

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• Maintenance may be ‘necessary’ even though a child has been able to undertake further studies to date without maintenance being paid.314 • ‘Education’ is defined broadly: in section 4, ‘education’ is defined to include apprenticeship and vocational training, and in the context of section 66L has been held to extend beyond scholastic, apprenticeship and vocational matters to include any form of training for a skill.315 • Having already completed one course of study does not preclude an adult child from obtaining a maintenance order, although it may make it more difficult to do so.316 • A child’s entitlement to a government student allowance (Youth Allowance) is to be disregarded in assessing section 66L applications.317 These points are generally consistent with the broader social shifts mentioned earlier (11.2.1), particularly the shifting balance from state to private financial means of support. Although the court is required under FLA sections 66J(1)(c) and 66J(3)(a) to take into account the child’s capacity to earn an income, including assets under the child’s control that are capable of producing income, in Cosgrove v Cosgrove (No 2),318 the Full Court considered that spousal maintenance authorities of Bevan319 and Mitchell 320 (Chapter 15) were applicable, to the effect that adult children are not required to divest themselves of all assets and capital to qualify for a maintenance order. However, the 2012 decision of Brown FM in Maher & Maher321 suggests that children who earn a modest amount from part-time work and are significantly subsidised by their mothers are at risk of being viewed as not needing child maintenance from their fathers.322 In conclusion, adult child maintenance cases often seem to be about parents not sharing equitably in the financial support of their adult children. The starting point in Re AM and Masterson & Masterson, for example, was that the mother was bearing most of the financial burden. In both cases, the effect of a FLA order was to shift this burden so that it was shared more equitably between the parents.

314 Re C (No 2) (1992) 15 Fam LR 355, 367–8. More recently see Masterton & Masterton & Anor [2012] FMCAfam 913 (Brown FM). 315 O’Dempsey & van Ray [1990] FLC 92-177 (Butler J). On that basis, it was held that professional training to become a pilot was included. 316 In the Marriage of Henderson (1989) 13 Fam LR 40, 42–3 (per Nicholson CJ and Baker J). See also In the Marriage of Campbell (1987) 92 FLR 130. 317 In accordance with the definition of ‘income tested pension, allowance or benefit’ in reg 12A of the Family Law Regulations 1984, read with FLA s 66J(3)(b)(ii) and s 66K(4)(a): Smith v Wickstein (1996) 21 Fam LR 118. For a recent example see Masterton & Masterton & Anor [2012] FMCAfam 913. 318 Cosgrove v Cosgronve (No 2) (1996) FLC 92-701. 319 In the Marriage Of: John Frank Bevan Appellant/Husband and Merrien Denise Bevan Respondent/Wife [1993] FamCA 95 (Nicholson CJ, Lindenmayer and McGovern JJ) (Bevan). 320 In the Matter Of: Norma Jill Mitchell Appellant/Wife and Anthony Lewis Mitchell Respondent/Husband [1995] FamCA 32, [60] (Nicholson CJ, Fogarty and Jordan JJ) (Mitchell). 321 Maher & Maher [2012] FMCAfam 147. 322 ibid., [120]. Query, however, the relevance in this case of the mother’s relocation from WA to SA at separation to the court’s determination of what was ‘proper’ for s 66G, [126]. See also Masterton & Masterton & Anor [2012] FMCAfam 913, discussed earlier, in which the income difference between the mother and father was more significant.

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The empirical evidence, however, suggests FLA maintenance is rarely being sought and paid for adult children in the broader community. In particular, a detailed empirical analysis of parents’ financial support of their young adult children by Bruce Smyth in 2002 found that parental financial support for young adult children was not the norm in Australia. 323 Smyth also found that parents appeared to be largely unaware of the child’s right to claim child maintenance under the FLA. While 43 of the 72 families in the sample analysed by Smyth included an eligible child according to FLA maintenance criteria, in only six families did the child receive any financial support (periodic or non-periodic) from their parents, aside from important ‘in kind’ support received from the resident parent via provision of board and lodging.324 Smyth’s analysis suggests that, particularly given the continuing high youth unemployment rate compared with the total unemployment rate,325 there is a need for ongoing discussion regarding whether liability should continue to be restricted to need arising from completion of education and disability.326 Smyth also acknowledges, however, that financial support of adult children is likely to be a particularly contentious issue between separated parents, and that the formal mechanism for obtaining maintenance under FLA section 66L—litigation—‘is likely to be off-putting for many resident parents or young adults themselves, since going to court is often time-consuming and prohibitively expensive—both financially and emotionally’.327 Yet the pressure in this area of family law and policy is only likely to increase in the future, in line with the increasing cost and importance of obtaining tertiary and professional qualifications, and the recent announcement in the 2014–15 Federal Budget that people under the age of 30 years will have to wait six months for their first income support payment, then survive on no income for six months of every year of unemployment.328

11.9  Conclusion The analysis in this chapter has demonstrated the point made in the opening quotation, to the effect that child support is an area of family law where it is likely to be particularly difficult to achieve outcomes that the various stakeholders—including children—agree are ‘fair’. The intertwining of tax, social security, and child support regimes also makes it very difficult to determine with certainty the overall impact of any change to child support (and other laws regarding the financial obligation to support children) on children, mothers and 323 Smyth, above n 294. 324 ibid., p 28. Note, however, Smyth’s observation that these represent lower-bound estimates of what is happening, given various methodological factors. 325 For many years, the youth unemployment rate has been higher than the total unemployment rate: ABS, Australian Social Trends 1995, Cat. No. 4102.0.0, ABS, Canberra, 2005; Paul Edgington, ‘High Rate of Youth Unemployment Will Hurt Future Productivity’, The Australian (online), 5 October 2013, . 326 Smyth, above n 294, pp 26–7. 327 ibid., p 33. 328 Commonwealth of Australia, Budget 2014–15 Overview, ‘Income Support Eligibility Changes’, p 10 ; Cassandra Goldie, ‘Removal of Income Support for Young People Risks Creating a Lost Generation’, Financial Review, 21 May 2014.

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fathers. Indeed, the 2006–08 child support amendments have made child support more complex than ever. It is evident, however, that as a group, mothers and children are poorer than before the changes—a serious consequence given that these families are already among the poorest in the community. However, the early research also suggests that low-income fathers are worse off after the changes. In this respect, we agree with Natalier, McKenzie and Cook’s observation that we do not currently have a policy process that ‘charts a meaningful path between reducing state expenditure on supporting sole parent families, ensuring financial support is available to children, and reducing the administrative and privacy burden of the child support system on parents’.329 In this respect, the recent shift in UK child support policy away from extracting small transfers from the welfare population may be worthy of consideration here. Meanwhile, the post-separation financial advantage of fathers as a group, and especially wealthier fathers, has increased under the new formula. Their capacity for financial autonomy330 has also been enhanced as there are now additional mechanisms for exercising control over child support payments (including regular care, binding child support agreements, non-agency payments and lump sum payments). Non-compliance and enforcement also remain significant issues, but the evidence suggests that measuring compliance and designing law and policy that will lead to improvement without unintended consequences is highly challenging. Development of a better understanding of how mothers and fathers think about and experience child support would be a step in the right direction. Recent research findings on the social and financial dimensions of money (including that child support is more likely to be paid in full if parents have civil postseparation relationships, that fathers see a wider range of contributions as amounting to child support than do mothers (which helps explain why fathers describe themselves as paying more child support than mothers report receiving), that fathers are likely to find it easier to think about their payment of child support as a gift rather than as an entitlement of the mother and children. and that parents take into account a range of factors and circumstances when deciding the amount of child support they think is ‘fair’ to pay or receive) suggest that closer examination of parental attitudes and behaviours is key to better calculating, administering and enforcing child support and to supporting parents in their negotiations, decisions and arrangements.331 It is also evident that, regardless of empirical evidence underlining the continuing gendered nature of paid and unpaid work, we have entered an era dominated by formal equality ideology, in which both parents are increasingly expected to share in the parenting and financial support of their children post-separation, and that this policy shift underpins family law, social security law, and changes to child support. Given this, the benefits for family members of mothers and fathers being able to engage in non-gendered patterns of paid and unpaid work are clear. Unfortunately, the current mechanisms for encouraging this to occur (including welfare-to-work rules, and a focus on sharing the care and the 329 Natalier, McKenzie and Cook, above n 8. 330 Cook and Natalier, above n 19, p 31. 331 ibid.

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financial support of children post-separation without the creation of incentives for this to occur during intact relationships) are very much less convincing, with the likely fallout to occur post-separation, especially for mothers and the children living with them. Thus while the concerns of fathers (especially low-income fathers) about paying child support are significant in an era of diminishing rather than increasing state willingness to provide financial support, ‘[a]ll accounts of loss and resilience must be read against the broader context of gender and power in child support reform, a process that in recent years has been to the detriment of women’.332

332 Natalier, above n 7, p 254.

CHAPTER

12

Processes for Resolving Property Disputes 12.1 Introduction 475 12.2 How do separating spouses and de facto couples work out their property arrangements? 476 12.3 Dispute resolution processes  479 12.3.1 Property mediation  479 12.3.2 Arbitration 480 12.4 Mechanisms for giving effect to private agreement without commencing property proceedings 480 12.4.1 Informal agreement  480 12.4.2 Application for consent orders not in a current case  483 12.4.3 Binding financial agreements  486 12.5 Going to court  487 12.5.1 Pre-action steps and procedures  487 12.5.2 Conciliation conferences  488 12.6 Conclusion 489

12.1  Introduction In this chapter we look at the process for resolution of property issues when spouses and de facto partners separate, focusing on ways in which parties can, and are encouraged to, reach settlement without judicial adjudication (that is, a trial at the end of which the judge determines the outcome). Specifically, we consider the range of dispute resolution processes that may be used by parties and by lawyers to reach agreement. We also consider the mechanisms by which agreement between separating parties regarding their property can be given effect. Preceding this discussion is an overview of the empirical evidence on how separated spouses and de facto partners seeking to resolve property matters interact with family law system services. Our discussion conveys that while compared to parenting there has been much less emphasis on the development of processes designed to assist parties to resolve property disputes, a number of approaches for resolving disputes without adjudication and giving agreements effect exist, and the legal and non-legal incentives to agree without going to 475

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court are still strong. The cost of accessing legal advice and representation will commonly be an issue for parties in both parenting and property disputes. While our focus is on property disputes, the mechanisms and processes we describe also apply to spousal and de facto partner maintenance disputes and issues specifically relevant to maintenance disputes are identified in the course of our discussion. The process for resolution of child support issues is discussed in Chapter 11 as it is largely governed by the Child Support Scheme (CSS).

12.2  How do separating spouses and de facto couples work out their property arrangements? There is no doubt that financial issues—including property issues—‘loom large for separating couples and their children’.1 As discussed in Chapter 10, there is a clear link between financial disadvantage and relationship breakdown: financial disadvantage is a predictor and (especially for women) a consequence of separation. Financial issues also play a role in the parenting arrangements parents make and can adversely affect ongoing relationships between parents, and between parents and children.2 Yet personal finances also remain one of the most sensitive and private facets of society and something that many people (including people in intact relationships) find difficult to talk about. On separation, these difficulties are likely to be amplified: there is unlikely to be enough money to go around and the goodwill and trust previously present in the relationship will frequently have diminished or be absent, leaving in its place the strain and grief of relationship breakdown.3 The prevalence of financial abuse as an aspect of family violence also significantly compromises process and outcomes in financial disputes, as women tend to trade money for safety (Chapter 10). It is in these difficult circumstances that parties are likely to be working out their property arrangements. Empirical research suggests, similar to parenting (Chapter 7), that most do so within the first two years after separation and without applying to the family law courts for final property orders under section 79/90SM (Chapter 13).4 Specifically, in 2012 there were 49,917 divorces granted in Australia5 (the number of separations would be much higher if equivalent data were available for de facto 1 Belinda Fehlberg, Bruce Smyth and Kim Fraser, ‘Pre-Filing Family Dispute Resolution for Financial Disputes: Putting the Cart before the Horse?’ (2010) 16 Journal of Family Studies 197, 198. 2 For example, Belinda Fehlberg, Christine Millward, Monica Campo and Rachel Carson, ‘Post-Separation Parenting and Financial Arrangements: Exploring Changes over Time’ (2013) 27 International Journal of Law, Policy and the Family 359; Monica Campo, Belinda Fehlberg and Christine Millward, ‘“I Think It’s Okay; I’m Not Going to Say It’s Unfair”: Children’s Views of Financial Arrangements in Post-Separation Families’, paper presented at the 13th Australian Institute of Family Studies conference, Melbourne, 30 July – 1 August 2014). 3 Fehlberg, Smyth and Fraser, above n 1, 199. 4 Belinda Fehlberg, Christine Millward and Monica Campo, ‘Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214, 228–9: in their qualitative study of 60 Victorian parents separating after the 2006 shared parenting amendments, 46 had reached property settlement by the first interview in early 2009. 5 Australian Bureau of Statistics, 3310.0—Marriages and Divorces, Australia, 2012, .

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relationships). Data from the family law courts suggest that in 2012–13 there were around 9,663 applications for final Family Law Act 1975 (Cth) FLA property orders.6 It is thus evident that a minority of the separating population apply to the family law courts for final property orders. Indeed, empirical research7 suggests that separating couples who formalise their property settlements are more likely to apply to the Family Court of Australia (FCoA) for consent orders in the absence of a current case (12.4.2) or to enter a binding financial agreement (12.4.3 and 14.7).8 Of the minority who do apply for to the family law courts for final orders, a much smaller number ultimately receive adjudicated final orders—most settle before a judge determines the matter. Of all cases finalised by the FCoA in 2012–13 14.6 per cent required judicial determination (the data provided do not break down the proportion of final orders that were property orders).9 Empirical research also indicates that, among the majority who settle without applying to the family law courts for property orders, a range of approaches and services is utilised. Recent findings from the AIFS Longitudinal Study of Separated Parents Wave 3 (LSSF Wave 3) (see also Chapter 10) found that the average time taken to finalise property arrangements among the majority of parents who reported having done so was 15 months.10 Taking a longer time to settle property was associated with higher asset pools and was also linked to only having debt to divide.11 Most parents said they reached their arrangements by ‘discussions’ (40 per cent), while a significant minority said there was not a specific process (19 per cent). Parents in these groups also typically described low assets (58 per cent described net assets of less than $40,000).12 The researchers found 6 In the FCoA in 2012–13, there were 1450 applications for financial orders (a broader category than property orders, including for example applications for spousal/partner maintenance orders) and 399 applications for parenting and financial orders: Family Court of Australia, Annual Report 2012–13, Family Court of Australia, Canberra, 2013, p 42. Applications for financial orders thus comprised the FCoA’s main workload (52% of final order applications being for financial matters, 14% for parenting and financial matters, 33% for parenting matters, and 1% for other matters). In the FCCoA, in 2012–13, there were 17,376 applications for final orders excluding divorce, of which 34% (approximately 5904) were for property and 11% (approximately 1910) were for parenting and property orders: Federal Circuit Court of Australia, Annual Report 2012–13, Family Circuit Court of Australia, Canberra, 2013, pp 40–1. This totals 9,663 applications for final property (including property and parenting) orders in 2012–13. 7 Fehlberg, Millward and Campo, above n 4, 229: in a qualitative study of 60 Victorian parents separating after the 2006 shared parenting amendments, 20 had consent orders, usually not in a current case (12.4.2). 8 Unfortunately, data reported by the family law courts do not indicate the proportion of consent order applications attributable to property matters, or the number made without (as opposed to in) a current case, and there are no data on the incidence of financial agreements. See, however, Grania Sheehan and Jody Hughes, Division of Matrimonial Property in Australia, Research Paper No. 25, Australian Institute of Family Studies, Melbourne, 2001, Table 3.3: about half of the men and women interviewed said that they had settled their financial matters via a private agreement, and the remaining half via court ordered or court registered agreement. Their research was based on data collected for the Institute’s Australian Divorce Transitions Project (ADTP; see also Chapter 10) from 650 Australians separated between 1988 and 1997, and included men and women who had divided their property both with and without legal assistance. 9 Family Court of Australia, above n 6, p 43. Equivalent data are not publically available in relation to the FCCoA, although it was reported that, in 2012–13, 70% of matters were finalised without judicial determination: Federal Circuit Court of Australia, above n 6, p 35. 10 Lixia Qu, Ruth Weston, Lawrie Moloney. Rae Kaspiew and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, p 96. 11 ibid., p 97. 12 ibid., p 98.

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that ‘[h]igher asset levels were associated with higher use of formal pathways (that is, lawyers, the courts, mediation and dispute resolutions services) and a lower use of informal pathways’.13 While lawyers were described by a significant minority of parents (especially the formerly married) as their main pathway for resolving property issues (29.1 per cent), very few described courts as their main pathway (seven per cent).14 In their broader discussion of services used by parents, the researchers found that ‘[t]he proportion of parents considering the service used as very helpful was highest among parents who used a lawyer (51 per cent), followed by those who used a Legal Aid Commission (44 per cent). It was lowest amongst those who used Family Relationship Centres (29 per cent), community legal centres/ women’s legal services (30 per cent each), and those who went to court’.15 A similar pattern involving higher use of lawyers to reach property settlements compared to parenting arrangements was evident in Fehlberg and colleagues’ qualitative research conducted, like LSSF, following the 2006 amendments (Chapter 6). Their study, which involved repeat interviews in 2009, 2010 and 2011 with 60 Victorian separated parents who had separated after those amendments and before the 2009 de facto financial amendments, found that: Pathways to property settlement were characterised by much greater use of lawyers and much lesser use of mediation than was the case in relation to parenting arrangements. Most parents had seen a solicitor in relation to property (n = 43), although levels of lawyer involvement varied from a brief one-off consultation or being represented in the negotiation, drafting and filing of consent orders. Of those who had legal assistance, 20 had consent orders (12—[FCCoA], 8—FCoA; no parent described adjudicated orders), two had entered FLA Part VIIIA financial agreements, and four had entered a formal de facto agreement drafted by a solicitor. The number of parents in our sample with property court orders was the same as the number who had parenting court orders (most of which were also by consent)— although most parents had orders for one and not both. Few had used mediation in relation to property (n = 4). Several parents (n = 12) did not seek professional assistance in relation to property settlement. Avoiding high legal costs—especially when there was only a modest amount of property to divide—was a key factor for many parents … not surprisingly, those with few assets were most likely to settle their property at the time of separation, informally and without professional assistance.16

A further theme to emerge in Fehlberg and colleagues’ study was the difficulty experienced by participants in accessing free or inexpensive professional assistance in relation to property issues, given the lack of legal aid for property disputes.17 Several participants also mentioned that at the time when they had made their property arrangements (2008–09) assistance provided by most Family Relationship Centres 13 ibid., p 99. 14 ibid. 15 ibid., p 50. 16 Fehlberg, Millward and Campo, above n 4, p. 229. 17 ibid. See, for example, the Victoria Legal Aid, 4—Commonwealth Family Law and Child Support Guidelines, 1 November 2011, VLA Handbook for Lawyers, , which provide that a grant of legal aid can be made for spousal maintenance proceedings but make no mention of property proceedings.

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(FRCs) (Chapter 7) did not extend to property mediation when this was what they felt they had needed most. This position has gradually changed and property mediation is now provided by trained or legally qualified professionals in some FRCs and by Family Relationship Service Providers,18 with the fee charged depending on the provider’s policy regarding costs.19 However, in contrast to parenting disputes (Chapter 7), family dispute resolution (FDR) is not a pre-filing requirement for property disputes, although pre-action steps and procedures still apply (12.5.1). While in 2010 the then federal Attorney-General announced that the pre-filing FDR requirement would be extended to financial (property and spousal maintenance) disputes,20 the proposal did not proceed—possibly because of its resource implications. When property mediation results in agreement, legal costs are likely to be reduced rather than removed, as parties may need to seek consent orders (for which legal advice will be recommended: 12.4.2) or enter a binding financial agreement (for which independent legal advice is required: 14.7) to ensure that the agreement reached is enforceable. Even for those willing and financially able to obtain legal advice and assistance (especially given the lack of legal aid funding for property matters just mentioned), the difficulty in predicting the exercise of broad judicial discretion makes litigation a risky strategy (Chapters 13 and 14) and settlement without adjudication continues to be strongly encouraged for those who embark on the litigation pathway (12.5).

12.3  Dispute resolution processes As discussed in Chapter 7, there is a range of processes used by parties and by lawyers to reach agreement in FLA disputes. Usually these start with lawyer-to-lawyer negotiations. If agreement is not reached other processes may then be used, including four-way conferences (essentially a focused negotiation) and collaborative law processes. For property disputes, mediation is also sometimes utilised. A further process available is arbitration.

12.3.1 Property mediation Due to resource constraints, parties who utilise property mediation are more likely to do so by accessing mediation at a FRC (12.2) than they are to pay for private mediation, which is likely to cost in the vicinity of $3,500 or more a day depending on the charge-out rate of the mediator and the party’s legal representative(s). However, when the size of the asset pool warrants it, private mediation may well be an attractive option as it provides a means of reaching agreement with the assistance of a highly skilled professional (for example, a retired judge or a senior barrister). In contrast to adjudication, parties and their legal 18 Available information suggests that of FRCs auspiced by Relationships Australia (about 50% of FRCs) about 80% offer it. However, the demand may not be high and most property FDR is done by the non-FRC FDR services (FRS services). Overall, Relationships Australia organisations collectively undertake an estimated 2,500 cases of property FDR per annum (but only about 500 in FRCs) which totals about 4,000 cases around Australia: email from Andrew Bickerdike to Belinda Fehlberg, 4 April 2014. 19 Email from Ena Shaw to Belinda Felhberg, 4 April 2014. 20 Steve Vizard interview with Robert McLelland (Attorney-General) (radio interview, Melbourne, 20 May 2010), ; Carol Nader, ‘Push to Solve Custody Disputes Outside Courts’, The Age, Melbourne, 20 May 2010, p 3.

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representatives have control over who will mediate the dispute, and while the outcome is not binding the cost involved will create an incentive to agree. A mediated agreement can subsequently be formalised in consent orders (12.4.2) or a binding financial agreement (12.4.3 and 14.7).

12.3.2 Arbitration A further dispute resolution process available in relation to FLA financial disputes is arbitration, defined in FLA section 10L(1) as ‘a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute’. Part II Division 4 of the FLA provides for ‘consensual arbitration [of family law financial matters] by appropriately qualified legal practitioners’. The decision of the arbitrator, once registered in court, is binding and an appeal from the decision is only available on points of law. While the FLA has provided for arbitration of financial disputes since the end of 1991 and the original provisions have been amended twice, they have rarely been used, for reasons including ‘a continued lack of funding, lack of recognition of arbitration as a viable option in the legal community, and a sense that the limits of review [are] too stringent, making arbitration a potentially risky strategy’.21

12.4  Mechanisms for giving effect to ­private ­agreement without commencing property proceedings There are three main mechanisms available to spouses and separating de facto partners who seek to give effect to their property agreement without commencing court proceedings, namely informal agreement, consent orders, and binding financial agreements. In each instance, there are particular potential benefits and pitfalls.

12.4.1 Informal agreement As discussed in Chapter 7, there is no legal requirement that parties enter a formal agreement regarding their family law parenting arrangements. While this is also the case for property arrangements, taxation and stamp duty implications often create strong incentives to formalisation (12.4.2). When this is not the case, parties are more likely to agree informally between themselves on financial matters, either with or without legal or other professional assistance. Other reasons for informal agreement in relation to property include a lack of free or affordable professional services to assist, low or negligible property pools not justifying the cost of professional services, and a desire to ‘keep the peace’ with an ex-partner—the concern being 21 Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper, Commonwealth of Australia, Canberra, 2007, [4.23]. In a 2009 letter of advice to the Attorney-General, the Family Law Council concluded that there was insufficient support for the introduction of compulsory arbitration and suggested ways to enhance support for voluntary arbitration processes.

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that involving lawyers will increase conflict (a concern that research on family lawyers does not support).22 Preserving financial privacy (including the scrutiny of the Australian Tax Office (ATO) and Centrelink over one’s financial affairs) is a further matter that may be of concern. Policy and reform proposals often assume that informal agreement occurs in the context of, and encourages, cooperative post-separation relationships. In contrast, empirical research indicates that those who work out their financial arrangements between themselves without professional involvement are not a homogenous group. They reach settlement with or without reference to likely FLA outcomes and in circumstances that may be, but are not necessarily, cooperative. For example, eight of the 60 participants in Fehlberg and colleagues’ Victorian study had not accessed FDR or family law services, usually describing cooperative post-separation relationships and mutual agreement about children and property. Most did not formalise their arrangements, although two had written down their parenting agreement. However, there were also two participants who had not accessed FDR, mediation or family law services in circumstances of high ongoing conflict, ‘indicating that non-utilisation of services is not necessarily an indicator of peaceful settlement’.23 Interestingly, however, the potential pitfall that a party entering a financial agreement may receive less than (usually) she is entitled to under the FLA appears to be contradicted by the Australian Institute of Family Studies (AIFS) research conducted by Sheehan and Hughes on matrimonial property division and published in 2001, which concluded that, consistent with the Institute’s earlier findings in 1986 in Settling Up, ‘the type of property agreement (that is, private versus a registered or court ordered agreement) had no direct effect on the share of property received’.24 More recently, findings of LSSF Wave 3 included  that: [B]oth fathers’ and mothers’ reports suggest that the outcomes of property division were not affected by whether parents reached settlements through formal pathways or discussions between themselves … [however] both mothers and fathers who

22 In Australia, see Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) 30 Journal of Law and Society 156, p 156; Rosemary Hunter, ‘Through the Looking Glass: Clients’ Perceptions and Experiences of Family Law Litigation’ (2002) 16 Australian Journal of Family Law 7; Rosemary Hunter with Ann Genovese, Angela Melville and April Chrzanowski, Legal Services in Family Law, Justice Research Centre, Sydney, 2000, pp 35–9 for a literature review of previous research. More recent research suggests that family dispute resolution practitioners and lawyers do not view themselves as being in competition for work and that where cross-professional criticisms were evident, they were likely to be made by family dispute resolution practitioners. Lawyers ‘generally described the work of family dispute resolution practitioners in extremely positive terms’: Helen Rhoades, Ann Sanson and Hilary Astor with Rae Kaspiew, Working on Their Relationships: A Study of Inter-Professional Practices in a Changing Family Law System, University of Melbourne, Melbourne, 2006, pp ii– iii. Overseas research includes, in the United Kingdom, John Eekelaar, Mavis Maclean and Sarah Beinart, Family Lawyers: The Divorce Work of Solicitors, Hart Publishing, Oxford, 2000; Richard Ingleby, Solicitors and Divorce, Clarendon Press, Oxford, 1992. 23 Rachel Carson, Belinda Fehlberg and Christine Millward, ‘Parents’ Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings’ (2013) 25 Child and Family Law Quarterly 406, 410–12. 24 Sheehan and Hughes, above n 8, pp 26–7.

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nominated no specific pathway [as being followed to reach property settlement] reported that they had received a lower share than their former partners’.25

While the reasons for this pattern are not clear, when read with the finding that parents were most satisfied with lawyers’ services there would seem to be some suggestion in the data that legal advice is likely to result in more favourable property settlements, although this is not a point made by the researchers. As noted earlier, at a practical level taxation and stamp duty issues often explain why separating partners will formalise their property settlement. Other potential problems with informal agreements are their lack of finality and enforceability. Even if an agreement regarding land or other financial matters is in writing,26 it will not oust the jurisdiction of the court under FLA section 79/90SM to make property orders. While section 44(3)/44(5) provides a time period for making a property application of one year once divorce has been finalised or two years following the end of a de facto relationship, creating some degree of finality, a court can grant leave to apply out of time (13.2.4.2). The High Court of Australia’s (HCoA’s) 2012 decision in Stanford27 (Chapter 13) suggests, however, that informal agreement between partners regarding their financial arrangements may now carry greater weight. In Stanford, the leading judgment emphasised that any informal agreement between the parties during their relationship regarding their property, along with identification of the parties’ existing legal and equitable interests in their property, are key considerations when determining whether it is just and equitable to make a property settlement order: The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.28

This suggests that informal agreement in a broad sense—extending beyond informal agreement after separation, to the way the parties have arranged their financial affairs during the relationship (for example, whether they have pooled their finances)—may be now of increased relevance to family law courts’ determinations of whether it is just and equitable to make a property settlement order. Conversely, as the HCoA (and, subsequently, the Full Court in Bevan)29 also made clear, determination of the just and equitable requirement requires a comprehensive and wide-ranging inquiry. As a result, Stanford should not be read as changing the pre-existing position to the effect that while informal agreements are relevant they are not decisive in the exercise of discretion under FLA section 79/90SM, although it does suggest a shift in emphasis away from the pre-Stanford case law which would have attached little significance to in-relationship agreements.30 25 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 10, p 105. 26 An oral agreement to transfer an interest in land is not enforceable under the modern equivalents of the Statute of Frauds unless it is in writing, e.g., Property Law Act 1958 (Vic) s 53. 27 Stanford v Stanford; (2012) 247 CLR 108; [2012] HCA 52 (French CJ, Hayne, Heydon, Kiefel and Bell JJ) (Stanford ). 28 ibid., [41] (French CJ, Hayne, Heydon, Kiefel and Bell JJ). 29 Bevan & Bevan [2013] FamCAFC 116 (Bryant CJ, Thackray and Finn JJ). 30 For example, Woodland v Todd (2005) [2005] FamCA 161.

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The Full Court’s post-Stanford decision in Bevan (see also Chapter 13), to the effect that it would not be just and equitable to make property orders given the wife’s reliance on the husband’s assurances over many years that he would not make a property claim, illustrates that there are circumstances in which informal agreements will be upheld by family law courts. It is more likely that the husband would have walked away from court with something had the case been decided pre-Stanford.31 However, the unusual circumstances in Bevan and the fact that it was decided so soon after Stanford (at a point when, similar to Goode (Chapter 8), the Full Court is likely to have been keen to convey that it was taking on board the HCoA’s message) make it difficult to predict the case’s wider relevance. Given the significant uncertainty surrounding whether an informal agreement will prove ‘watertight’, a major incentive to formalise a property settlement will often be (and will continue to be, in addition to taxation and stamp duty issues) a concern to know that (subject to the limited grounds for setting aside orders and binding financial agreements) no further claim by a former spouse or de facto partner is possible. This carries with it the knowledge that assets acquired, given or inherited after formalisation are free from a further property claim by a former spouse or partner.

12.4.2 Application for consent orders not in a current case As noted at 7.5.1.5.3, it is crucial to appreciate that consent orders are orders of the court (comprising, in the property context, an order made under FLA section 79/90SM and enforceable as such). However, consent orders are orders that reflect the private agreement of the parties (cf. adjudicated orders) and may be made without the parties actually attending court (as well as once proceedings have been initiated). There is often a financial incentive for parties to formalise their property settlement by consent order or binding financial agreement. Orders for most transfers of interests in real property attract an exemption under state legislation from state stamp duty (binding financial agreements (12.4.3 and 14.7) are similarly exempted under FLA section 90L/90WA).32 A court order or financial agreement is also required to obtain the benefit of capital gains tax (CGT) roll-over relief which applies when there is disposal of a CGT asset from one spouse or former partner to the other (and also to transfers from a company or trust) (CGT in essence being a tax payable on the capital gain made on an asset (defined widely) when ownership changes).33 Further, as mentioned in Chapter 7, consent orders are the only way in which parties can give effect to a binding settlement covering parenting and property issues within the 31 For a recent case in which informal agreement was not decisive see Berrell & Berrell (No 3) [2013] FamCA 1012. Kent J, [233]–[239], concluded that it was just and equitable to make an order despite husband’s claim that the parties had made an informal agreement regarding their property post-separation. He observed that, in contrast, to Bevan, the informal agreement did not deal with all of the parties’ then existing property interests, the parties had not dealt with property in reliance on or in accordance with the agreement and there was no evidence that the wife believed there was a final agreement. There was no full disclosure of financial matters and the wife had no independent legal advice. 32 See further CCH International, Australian Master Family Law Guide, 6th edn, CCH International, Ryde, 2013, [16-460]–[16-540]. 33 See further, ibid., [16-250]–[16-320].

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one document. They are enforceable in the same way as any other court orders and can only be set aside on appeal, or, in the case of property consent orders, pursuant to FLA section 79A/90SN (13.9.2). The ongoing popularity of consent orders, despite the introduction of other options such as parenting plans (see Chapter 7) and binding financial agreements (12.4.3 and 14.7), is explained by the flexibility and finality they offer, as well as legal practitioner familiarity with them and the problems that have arisen in relation to the legislation and enforcement of financial agreements. As also mentioned at 7.5.1.5.3, consent orders can be made (1) by way of settlement in  contested matters (minutes of consent) (Family Law Rules 2004, rule 10.15(1)(a); Federal Circuit Court Rules 2001, rule 13.04(1)) (12.4.4.1) or (2) by a registrar of the FCoA in chambers (by filing an Application for Consent Orders: Family Law Rules 2004, rule 10.15(1)(b)) (our focus now). The former are made following an application for final orders and so are known as ‘consent orders in a current case’ while the latter are made without an application for final orders being made and so are known as ‘consent orders not in a current case’. Cost savings are likely to be greatest in the second situation. In both instances, it is possible to avoid legal representation altogether: unrepresented litigants are increasingly a feature of court proceedings in family law (3.6.3.2) and consent orders made by a Registrar in Chambers do not require that the parties receive independent legal advice—only that they sign an affidavit that they are aware of their right to do so. Usually, though, one of the parties applying for consent orders will have legal assistance, at least to draft the proposed orders. This raises the risk of disadvantageous outcomes for the unrepresented party, especially given the court’s limited scrutiny of proposed orders (see later in this section). The cases, however, indicate that lack of legal representation will not of itself provide a basis for a later section 79A/90SN application to set aside property consent orders. Rather, the court will look at the overall circumstances of the case. For example, in the Full Court case of Gebert,34 the husband agreed to consent orders that were highly disadvantageous to him in order to convey to the wife that the marriage was over, and deliberately sought no legal advice despite the wife and her solicitors recommending he do so. The husband’s section 79A application, made on the basis of a miscarriage of justice due to ‘any other circumstances’, failed. The husband’s deliberate decision not to seek independent legal advice appeared particularly important. In Prior 35 the wife was not represented at the time when the consent orders were made, although she had previously been represented. The wife later complained that a miscarriage of justice had occurred because she did not understand the orders or the financial evidence and felt under pressure (although not amounting to duress) from the husband’s lawyers to consent to the orders. The fact that the settlement arrived at was not obviously disadvantageous to the wife seemed an important factor in the Full Court’s refusal of her section 79A application.36

34 In the Marriage of Gebert (1990) 14 Fam LR 62 (Gebert). 35 Prior v Prior [2002] FamCA 327 (Prior). 36 More recently, see Berry & James [2010] FamCAFC 58. For a similar conclusion in the context of non-disclosure of an interest in property, see Patching (1995) 18 Fam LR 675.

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The option of applying for consent orders to be made by a Registrar in Chambers is likely to be attractive to parties who wish to reach final agreement while avoiding the public exposure of a hearing in open court. While informal agreement and binding financial agreements offer more privacy, they involve other risks, particularly regarding enforceability (12.4.1 and 14.7 respectively). Consent orders preserve financial privacy to the extent that legal advice is not required and the parties avoid the exposure of a trial. However, financial disclosure is required. Under the Family Law Rules 2004 rule 13.05(1) a party is not required to file a financial statement in the court and so in this respect the financial disclosure obligations are not as extensive as in the context of section 79/90SM court proceedings, although the Application for Consent Orders contains nearly as much information. Also, in several cases the Full Court has emphasised that for an order to be just and equitable, full and frank financial disclosure between the parties of all matters relevant to their financial circumstances remains a basic duty,37 and has been very willing to view non-disclosure as amounting to a miscarriage of justice (on the basis of ‘suppression of evidence’ or ‘any other circumstance’) warranting the exercise its section 79A discretion to set aside the order.38 Generally, consent orders are drafted on the basis of negotiations between the parties with the assistance of their lawyers, and so are more likely to reflect the parties’ (or at least the more powerful party’s) wishes. However, they are still subject to some scrutiny by the court, which must be satisfied that section 79/90SM orders are in all the circumstances ‘just and equitable’ (section 79(2)/90SM(3)). In Harris v Caladine39 (see also 3.2.2) the HCoA made clear that when making section 79 consent orders judges and registrars must exercise their powers judicially, and thus must still be satisfied that the orders presented to them are just and equitable (section 79(2)/90SM(3)), having regard to the relevant checklist factors in the FLA—for property orders, the section 79(4)/90SM(4) factors—albeit in a truncated form.40 It remains the case, though, that consent orders are often made quickly, without detailed consideration of the section 79(4)/90SM(4) factors (especially in the case of orders made by Registrars in Chambers; in contrast, where consent orders are made in the context of contested proceedings, more information will be available to the judge), and that ‘in practice, if both parties have been represented and advised as to their rights, it is rare for the orders not to be made’.41 Harris v Caladine thus suggests a gap between the ideal and how the family law system works in practice. Given that consent orders are usually made quickly and with a truncated consideration of section 79(4)/90SM(4) and section 79(2)/90SM(3), it is not surprising that section 79A/90SN applications often constitute applications to set them aside. The Full Court 37 For example, In the Marriage of Morrison [1994] FamCA 153, [32] (Morrison). See also In the Marriage of Suiker [1993] FamCA 141. 38 In the Marriage of Pelerman [2000] FamCA 881. Cf the lack of obligation to disclose a privileged valuation: In the Marriage of Anderson [1999] FamCA 1026. 39 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9. 40 ibid., 95 (Mason CJ and Deane J), 103 (Brennan J), 124 (Dawson J), and 133 (Toohey J). For a recent example, see Hearn & Woolcott [2014] FamCA 42 (Rees J). 41 Tom Altobelli, Family Law in Australia: Principles and Practice, LexisNexis Butterworths, Sydney, 2003, p 487.

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has made clear that, as for other section 79A/90SN applications, the court’s discretion to vary or set aside consent orders should be exercised sparingly. In Prowse,42 for example, property consent orders were made in 1991, and were consistent with the letters of offer made by two separate solicitors who had acted for the wife during negotiations. A year later, having consulted a third firm of solicitors, the wife applied to have the consent orders set aside and for fresh orders to be made under section 79 that were more favourable to her. The Full Court upheld the trial judge’s decision that, even assuming a ‘miscarriage of justice’ within the meaning of section 79A was established,43 the discretion to set aside the consent orders should not be exercised in the wife’s favour. Relevant factors included her substantial delay of 21 months in bringing the application, the husband’s subsequent re-ordering of his financial affairs, the wife’s knowledge at the time the consent orders were made that she was accepting less than her likely entitlement, and the wife’s receipt of independent and complete advice, along with her receipt of what she had asked for by way of settlement. Prowse suggests that a court will be unwilling to entertain a section 79A application which ultimately involves re-litigating what appears to the court to have been a reasonable outcome, even if the process by which those orders were reached turns out to be flawed in some way.44 Even if the consent orders appear highly disadvantageous to the applicant, other factors will be relevant to whether the court will exercise its section 79A/90SN discretion to set aside or vary section 79/90SM orders. These will include the applicant not seeking independent legal advice or not being able to explain their lack of legal representation (see Gebert and Prior, earlier) and the hardship to either of the parties of allowing or not allowing the section 79A/90SN application.45 Alternatively, a dissatisfied party may apply for review of the registrar’s decision, which under the Family Law Rules normally has to be within seven days but can be extended by any period pursuant to the general rule that you can apply to extend the time limit in any of the Rules.46 Anecdotal evidence suggests that this option is of increasing concern to family lawyers, such that when concern exists that the other party might change their mind the option of applying for final orders and then consent orders will be taken, rather than applying to the Registrar for consent orders not in a current case.

12.4.3 Binding financial agreements FLA Part VIIIA/VIIIAB Div 4 allows spouses and de facto couples respectively to enter into a ‘financial agreement’ before marriage or entry into a de facto relationship (section 90B/90UB), during marriage or a de facto relationship (section 90C/90UC), as well as after divorce or the breakdown of a de facto relationship (section 90D/90UD), including in relation to their property. A number of requirements must be met for a financial agreement 42 In the Marriage of Prowse [1994] FamCA 91 (Prowse). 43 In essence, that the registrar had made the orders on the then-accepted practice of being satisfied that the parties consented to the proposed orders, rather than in accordance with the approach set out by the HCoA in Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, which was handed down about two months after the consent orders were made. The nature of this particular miscarriage of justice also possibly made the Court more reluctant to set aside the orders. 44 In the context of non-disclosure, see Patching (1995) 18 Fam LR 675. 45 For example, Morrison [1994] FamCA 153. 46 Recent examples are Hearn & Woolcott [2014] FamCA 42 (Rees J); Nova & Nova [2012] FamCA 152 (Rees J).

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to be binding, including that each party to the agreement receives independent legal advice before the agreement is entered into (section 90G/90UJ). There is no court supervision or registration of agreements. One attraction of binding financial agreements is that, unlike consent orders, they can more effectively preclude the possibility of a future spousal or de facto partner maintenance claim. For this reason parties sometimes enter into consent orders dealing with property and a binding financial agreement precluding spousal or de facto partner maintenance. It is important to note, however, that if at the time the binding financial agreement comes into effect a party is not able to support themselves without an income-tested pension allowance or benefit, the agreement cannot preclude a court exercising its jurisdiction to make a spousal maintenance order (FLA section 90F/90UI). Much case law has surrounded the binding financial agreement provisions of the FLA, along with much practitioner concern about how to ensure both that an agreement will indeed prove ‘binding’ and that they will not be sued by dissatisfied clients. Given this, binding financial agreements are discussed at 14.7.

12.5  Going to court The litigation pathway for property disputes is also characterised by encouragement to reach agreement without adjudication. This is evident in both the pre-action steps and procedures taken by lawyers and stipulated by courts, and in court processes after an application for final orders is made and the case proceeds through the system to ‘resolution’ and ‘determination’ stage.

12.5.1 Pre-action steps and procedures As discussed so far in this chapter and in Chapter 7, a range of processes is used by parties and by lawyers to reach agreement without adjudication. In addition, the family law courts have in place pre-action procedures to encourage parties to resolve issues in financial cases before filing.47 Specifically, in the Federal Circuit Court of Australia (FCCoA) parties are encouraged (but not required) to resolve financial cases before going to court and at the first hearing date will be directed to attend a conciliation conference (see next section) if the judge thinks this will assist the parties to resolve their dispute. Some FCCoA judges have also adopted the practice in cases involving property pools of less than $500,000 of directing the parties to attend private mediation at their own expense—a direction that has not yet been formally challenged. The FCoA requires that parties attend dispute resolution before filing in financial cases with some exceptions (including cases involving family violence, fraud and urgency). It is relatively rare to have pre-filing mediation, probably due to the cost of this, although other approaches may well be used (for example, a ‘four-way round table’ mentioned in Chapter 7). 47 See further Family Court of Australia, Before You File: Pre-Action Procedure in Financial Cases, 19 June 2009, .

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In  the FCoA, the first major event in financial cases is the case assessment conference held between the parties, their lawyers and the registrar; this provides an opportunity for the parties to reach agreement with the registrar’s help. If the parties cannot reach agreement, the registrar will identify the main areas of dispute and the information needed to resolve those issues, will describe the next steps in the court process, and may suggest other services to help settle the dispute.

12.5.2 Conciliation conferences The FLA requires that, before the FCoA can make an order adjusting property interests, the parties must usually have attended a conciliation conference (section 79(9)/90SM(9)). While the same requirement does not apply in the FCCoA, a common approach has been for conciliation conferences to be ordered on the first return date of a property matter (that is, the first time the matter comes before the court; the court typically determines what needs to be done to move the matter forward), or at least after the court has provided directions in relation to disclosure and valuation that have been complied with. More recently in the FCCoA, some judges and some registries order the parties to attend private mediation (12.3.3), rather than a conciliation conference. The parties will often be ordered to share equally in the costs of such mediation, which can be of the order of $3,500 or more a day. This move towards private mediation seems to be largely resource-driven. In matters involving small asset pools FCCoA judges will still order a conciliation conference. Conciliation conferences occur in the ‘resolution phase’ of the FCoA’s48 process for resolving disputes (Family Court Rules 2004, chapter 13), and so are relevant to parties who are in the process of litigating their dispute but have not yet reached trial (the ‘determination phase’ of proceedings). The ‘resolution’ phase involves a number of ‘court events’ which may result in settlement before trial (usually formalised via consent orders: 12.4.2). The court events for financial disputes are a case assessment conference, a procedural hearing, a conciliation conference, and a pre-trial conference (see chapter 12 of the Family Law Rules 2004). Conciliation conferences have particular significance because, as mentioned earlier, the court will not usually make a section 79/90SM order unless the parties have attended such a conference (FLA section 79(9)/90SM(9)). Before the conciliation conference, the parties are required under the Family Law Rules 2004 to exchange, and lodge with the court, specified documents, including a financial questionnaire and balance sheet setting out their assets, liabilities and offers of settlement (rule 12.06).49 The conference is conducted by a judicial officer (usually a FCoA registrar) (rule 12.07), and ‘[is] a mixture of mediation and conciliation—probably varying with the case and style of the person running the conference’.50 Conferences typically comprise a meeting of about 1.5 hours’ duration in which the focus is on matters in dispute. They are ‘advisory’ dispute resolution processes in which registrars may offer information about 48 Conciliation conferences for FCCoA cases are conducted within the FCoA. 49 See further Family Law Courts, 2 Conciliation Conferences, undated, . 50 Patrick Parkinson and Juliet Behrens, Australian Family Law in Context: Commentary and Materials, 3rd edn, LBC Information Services, Sydney, 2004, p 298.

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the range of likely outcomes if the court were to determine the matter as well as whether parties should settle within a given range.51 Each party and, if they are represented, their lawyer must attend (except to have a consent order made) (rule 12.11). The parties must make a genuine effort at the conference to reach agreement (rule 12.07). Statements and communications made at conciliation conferences are privileged (that is, not admissible in court).52 After the conference, the parties must make a genuine effort to reach settlement within 28 days, and the Family Law Rules 2004 include a note that ‘[a]n offer to settle is a factor that must be taken into account when the court exercises its discretion in relation to costs’ (rule 10.06). If the matter proceeds to trial, FLA provisions setting out less adversarial procedures for parenting disputes (FLA Part VII Division 12A—see Chapter 7) can also be applied by consent of the parties to other proceedings, including property cases (FLA section 69ZM).

12.6  Conclusion In summary, resolution of property arrangements without adjudication occurs in most cases and is strongly encouraged, both directly and indirectly, by the Australian family law system. The system has become better resourced in recent years in relation to supporting parties to reach agreement through FRC-based mediation, but remains much less well resourced in relation to the provision of legal representation and advocacy, which is often what parties crave most.53 Partly for this reason, the potential benefits and pitfalls of private settlement, especially for women, are contested in this area of family law, as they are more generally (see Chapter 7 regarding parenting disputes). While it might be thought that settlement without adjudication would be in women’s interests given that women are less likely to have the financial resources to pay for lawyers, whether this is the case will depend on the skills of the professionals involved, both in identifying and addressing power imbalance and in providing legal advice.

51 Donna Cooper, Lisa O’Neill, Kate Bint, Deborah Awiyzio and Sally Field, ‘Dispute Resolution Advocacy in the Context of Conciliation Conferences in Financial Matters’ (2010) 24 Australian Journal of Family Law 72. 52 Pursuant to Evidence Act 1995 (Cth) s 131 and, where this does not apply, pursuant to the HCA rule in Rogers v Rogers (1964) 114 CLR 608, 614, protecting communications that are part of genuine negotiations to resolve matrimonial proceedings: Anthony Dickey, Family Law, 6th edn, Thomson Reuters, Sydney, 2013, pp 91–2. 53 Carson, Fehlberg and Millward, above n 23.

CHAPTER

13

Legal Framework for Resolving Property Disputes 13.1 Introduction 491 13.2 Property division under the FLA: Preliminaries  492 13.2.1 Locating the property provisions in the FLA 493 13.2.2 Which courts have FLA property jurisdiction?  494 13.2.3 Exclusive jurisdiction under the FLA 494 13.2.4 When can an application be made?  495 13.2.4.1 Relationship breakdown required for de facto but not matrimonial property settlement orders  495 13.2.4.2 Time limit for institution of property settlement proceedings  496 13.2.4.3 Proceedings may be continued after death of a party  497 13.2.5 Procedure for exercise of discretion under FLA section 79/90SM: Overview 498 13.2.5.1 What is the procedure? The impact of Stanford 501 13.2.5.2 Wider implications of Stanford 506 13.3 Identification of existing legal and equitable interests of the parties in their property 507 13.3.1 What interests need to be identified?  507 13.3.1.1 What is ‘property’ for the FLA? 507 13.3.1.2 What is a ‘financial resource’?  510 13.3.1.3 To what extent do legal and equitable interests need to be identified? 511 13.3.1.4 Do financial resources still need to be identified?  512 13.3.2 Disclosure requirements in financial cases  512 13.3.3 Valuation 513 13.4 Is it just and equitable to make an order?  515 13.5 Identifying and assessing contributions  517 13.5.1 General points  519 13.5.1.1 Global, asset-by-asset, or combined approach  520 13.5.1.2 No starting point of equal sharing  521 13.5.2 Contributions to property  524

490

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13.5.2.1 Financial contributions to property  525 13.5.2.2 Non-financial contributions to property  526 13.5.3 Contributions to the welfare of the family  527 13.6 Consideration of additional matters  529 13.6.1 The section 75(2)/90SF(3) factors  529 13.6.1.1 Section 75(2)/90SF(3) adjustments: changing approaches over time 529 13.6.1.2 Applying the section 75(2)/90SF(3) factors in the section 79/90SM context 531 13.6.1.3 The section 75(2)/90SF(3) factors are not limited to the parties’ future needs  533 13.6.1.4 Relevance of a ‘partnership’ approach to section 75(2)/90SF(3) adjustments 533 13.6.1.5 The court’s approach to applying the section 75(2)/90SF(3) factors 535 13.6.2 Additional matters  537 13.7 Is the result just and equitable?  539 13.8 Orders in section 79/905M proceedings  540 13.8.1 Interim orders  541 13.8.2 Declarations and injunctions  542 13.8.2.1 FLA SECTION 78/90SL: Declarations  542 13.8.2.2 FLA SECTION 114: Injunctions  542 13.9 After orders are made  543 13.9.1 Appealing a section 79 order  544 13.9.2 Section 79A/90SN(1)  544 13.9.3 Enforcement of financial orders  546 13.10 Conclusion  547

13.1  Introduction There has been renewed interest in the legal framework for resolution of property disputes between separating spouses and de facto partners following the High Court of Australia’s (HCoA’s) 2012 decision in Stanford.1 In this chapter, our central aim is to provide a reasonably detailed overview of that current framework, while endeavouring to keep in mind a key recurring policy question in this area: what approaches to wealth sharing in married and de facto relationships are, and should be, reflected in the law? Consistent with this, throughout the chapter we refer to ‘partnership’ and ‘individualistic’ approaches to wealth sharing. By this we mean that underlying the operation of law and policy in this area is often the notion of (especially) marriage as a partnership, meaning ‘a social and economic unit between equals’,2 involving collective effort and role division 1 Stanford v Stanford (Stanford) (2012) 247 CLR 108; [2012] HCA 52. 2 In the Marriage Of: Renata Ferraro Appellant/Wife and Ruggero Ferraro Respondent/Husband [1992] FamCA 64, [207] (Fogarty, Murray and Baker JJ) (Ferraro).

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or an individualistic approach that sees marriage as an arrangement between individuals in which efforts are made and recognised on a more discrete basis. Viewing marriage as a partnership has tended to result in more generous outcomes for women who have been primary carers and homemakers, as it is more attuned to the range of contribution, needs and compensatory elements relevant to their position. While these two approaches became particularly evident in Full Court cases in the 1990s, Stanford appears more consistent with an individualistic approach. The wider implications of Stanford are, however, still being determined. It is likely that the appeal of the partnership approach will remain in ‘practical recognition of the circumstance that in many marriages each party contributes in ways which might be described as the normal way in our society and that in any qualitative evaluation of those matters the likely outcome is one of equality … and that a lengthy trial in which those facts are examined in detail will produce no different result.’3 Yet the greater likelihood that an individualistic approach will be asserted on relationship breakdown, along with the very limited extent to which the economic disparity can be accounted for in property division in the usual case where the asset pool is not large, also need to be acknowledged (Chapter 10). Indeed, thinking rigidly in terms of partnership and individualistic approaches risks oversimplification: reality is more complex. It is also less dichotomous, as evidenced by oscillation between the ‘rights’ focus inherent in the individualistic approach and the ‘ultility’ focus inherent in the partnership approach,4 evident in the case law. There are also some indications that family law courts are less inclined to apply a partnership approach to de facto partner financial disputes, although it is unclear whether this is due to de facto relationship status or factors that (on the basis of empirical research: Chapter 10) appear more present in de facto relationship cases (for example, relationships of short duration, no children of and/or an absence of financial sharing). Thinking about the financial and property rights and remedies that arise on separation may thus tell us something about how those relationships are conceptualised within our jurisdiction.5 Ultimately, thinking about property on relationship breakdown in terms of ‘partnership’ and ‘individualistic’ approaches underlines the lack of conceptual clarity and coherence that continues to exist in this area, reflective of a broader lack of social consensus on these questions.

13.2  Property division under the FLA: Preliminaries Our focus throughout this chapter is on how property is divided on the breakdown of married and de facto relationships. Central to our discussion are the Family Law Act 1975 (Cth) FLA sections 79 (matrimonial disputes) and 90SM (de facto disputes), which provide a broad discretionary framework for reallocating interests in property of the parties. As discussed in Chapters 3 and 4, de facto financial disputes have been determined 3 In the Matter Of: Russell Stuart Mclay Appellant/Husband and Susan Jeanette Mclay Respondent/Wife [1996] FamCA 29, [60] (Nicholson CJ, Fogarty and Dessau JJ), cited recently in Hoffman & Hoffman [2014] FamCAFC 92, [73] (Faulks DCJ, Murphy and Watts JJ). 4 Stephen Parker, ‘Rights and Utility in Anglo-Australian Family Law’ (1992) 55 Modern Law Review 311. 5 Joanna Miles and Jens M Scherpe, ‘The legal consequences of dissolution: property and financial support between spouses’, in John Eekelaar and Rob George (eds), Routledge Handbook of Family Law and Policy, Routledge, Oxford, 2014, p 138–9.

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under the FLA since 1 March 2009, following a referral of power from the states to the Commonwealth. The criteria for establishing that the parties were in a ‘de facto relationship’ for the purposes of the FLA (including when that relationship began and ended) and the avenues available to them if this requirement is not satisfied are discussed in Chapter 4. In particular, several states now have statutory schemes for the resolution of financial disputes between domestic and caring relationships that are not ‘de facto’ relationships for the purposes of the FLA, although so far these provisions have been little used (Chapter 4). The starting point for understanding Australia’s family property law is a ‘separate property’ regime, under which no automatic co-ownership arises from the fact of being married or in a de facto relationship (in contrast to the community property regimes of civil law countries and of a few United States states such as California).6 On relationship breakdown, property remains in the hands of its legal owner—who is more likely to be the husband or male partner due to women’s lesser opportunity to accumulate property (Chapter 10). The potentially harsh results of this for women were alleviated to some extent by the general law (especially the law of trusts) followed by legislation (now the FLA, but beginning in Australia with the Matrimonial Causes Act 1959 (Cth): 2.3) providing judges with a broad discretion to reallocate interests in property owned by the parties or either of them.

13.2.1  Locating the property provisions in the FLA Unlike the parenting provisions of the FLA, which are grouped in Part VII, the FLA property provisions are, confusingly, now found in several parts of the Act. If the parties were married, the key provisions are found in Part VIII (which contains the main provisions regarding reallocation of interests in property of parties who married, as well as spousal maintenance), Part VIIIA (binding financial agreements), Part VIIIB (superannuation) and Part VIIIAA (third parties). If the parties were in a de facto relationship, the key provisions are found in Part VIIIAB (which contains the main provisions regarding reallocation of interests in property of parties who were in a de facto relationship, as well as partner maintenance, and binding financial agreements). The application of Part VIIIB (superannuation) and Part VIIIAA (third parties) is extended to de facto financial disputes (sections 90MC(2)(superannuation) and 90TA (third parties)). Throughout this and the next chapter we discuss the law and process applicable to resolution of matrimonial and de facto financial disputes together, identifying differences as they arise. This is consistent with the approach taken by family law courts since de facto financial disputes were brought under the FLA from 1 March 2009, which has involved courts following the same process as for matrimonial property disputes, drawing on FLA matrimonial property case law to interpret and apply the de facto provisions. 6 These are usually to the effect that both spouses have a joint interest in property acquired after the marriage and as a result of the personal efforts of either of them. There are two main types of community of property regimes: ‘strict’ (also known as ‘full’ or ‘immediate’, i.e., property becomes jointly owned immediately on marriage) or, more commonly, ‘deferred’ (i.e., the property of spouses is treated as their separate property until the marriage ends or one of a number of relevant events occurs, when certain property is divided equally): see further Anthony Dickey, Family Law, 6th edn, Thomson Reuters, Sydney, 2013, pp 496–8.

494 AUStralian FAMILY LAW: the contemporary context

13.2.2  Which courts have FLA property jurisdiction? The Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCCoA) are the main courts exercising jurisdiction to determine property disputes under the FLA and so our focus throughout is on decisions of those courts, although other courts, in particular the Family Court of Western Australia (FCoWA), also determine FLA property disputes (3.5).

13.2.3  Exclusive jurisdiction under the FLA When the FLA applies to determine a property dispute, it applies to the exclusion of state and general law. Specifically, the FLA section 4(1) definition of ‘matrimonial cause’ (which in practical terms sets out the spousal-related jurisdiction of family law courts under the FLA, with the exception of parenting disputes) includes matrimonial property proceedings as well as spousal maintenance proceedings. Proceedings that constitute a ‘matrimonial cause’ can only be instituted under the FLA (FLA section 8(1)(a)), so to this extent state laws and jurisdiction and general law remedies (such as the law of constructive and resulting trusts, and estoppel) have been superseded. Similarly, if a ‘de facto relationship’ is established for the purposes of the FLA (4.2.1), the de facto financial provisions of the Act will apply to the exclusion of state laws, with certain exceptions (FLA section 90RC) including that FLA orders cannot be made because the parties do not satisfy the Act’s requirements regarding the length of the relationship (FLA section 90SB; see 4.2.1.2) or live in a state that is not a participating jurisdiction (FLA section 90SD). As discussed in at 2.4.1.2, South Australia (SA) did not refer power in relation to de facto financial disputes until after the 2009 amendments took effect and Western Australia (WA) has not referred, resulting in the need to limit application of the FLA de facto financial provisions to parties residing in a ‘participating jurisdiction’. The discretion provided to courts exercising jurisdiction under the FLA to alter the parties’ existing interests in property was designed to be broader than the general law, due to problems that existed (and still exist) for those without legal title who seek to assert an interest in property under the general law, particularly the law of resulting and constructive trusts.7 However, for two main reasons the general law is still relevant to the determination of property disputes under the FLA. First, and as Stanford made clear, it is necessary to identify the parties’ existing legal and equitable interests in property as a first step in determining whether it would be just and equitable to make a FLA order alter those interests (13.3). Second, general law principles are likely to be relevant when the interests of third parties are involved, given that the property provisions of the FLA provide courts with discretion to redistribute interests only in the property of the parties to a marriage or de facto relationship (14.2).

7 See further Lisa Sarmas, ‘Trusts, Third Parties and the Family Home: Six Years Since Cummins and Confusion Still Reigns’ (2012) 36 Melbourne University Law Review 216.

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13.2.4  When can an application be made? Jurisdiction under the FLA is more limited in relation to de facto compared to matrimonial financial disputes in that the breakdown of a de facto relationship is required before proceedings are commenced (FLA section 4, ‘de facto financial cause’). In both contexts, time limits apply within which an application for property orders must be made unless leave of the court is obtained, reflecting the notion of a ‘clean break’: ‘the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them’ (FLA section 81/90ST). This principle is applied more strongly in property than in maintenance proceedings (13.9 15.4.2 and 15.7.1). Proceedings may also be continued after the death of a party.

13.2.4.1  Relationship breakdown required for de facto but not matrimonial property settlement orders In accordance with paragraph (ca) of the definition of ‘matrimonial cause’ in FLA section 4(1), which reflects the Commonwealth’s legislative power under section 51(xxi) and (xxii) of the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution) (Chapter 2), FLA matrimonial property proceedings must be proceedings ‘arising out of ’ the marital relationship’ or relate to an application for principal relief (that is, an application for divorce or nullity: 4.2). It is rare but possible for a financial dispute to fall outside these limits (for example, a property dispute in relation to a business conducted by spouses in an intact relationship).8 FLA jurisdiction in relation to de facto financial disputes is more restricted because the definition of ‘de facto financial cause’ in FLA section 4 reflects the states’ referral of ‘financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships’ (our emphasis).9 A broader range of disputes between de facto partners therefore falls to be determined under state and general law. In particular, those in intact marriages but not in intact de facto relationships may obtain property (and also spousal maintenance)10 orders under the FLA.11 This was recently confirmed in Stanford. The husband and wife’s relationship had not broken down but they been living apart involuntarily due to the wife’s illness requiring nursing home care

8 For example, McCormack & McCormack & Anor and Peakes & Peakes & Anor [2009] FMCAfam 1250, in which two wives who wanted to purchase interests in property (comprising half interests in the matrimonial home) from their husbands’ trustees in bankruptcy sought FLA orders, in order to avoid stamp duty on the transfers. Wilcox FM refused to exercise jurisdiction because the transactions arose ‘from a commercial dealing that has failed’ rather than out of the marital relationship ([4]). 9 Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) s 4(1); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) s 4(1); De Facto Relationships (Northern Territory Request) Act 2003 (NT) s 4(1); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas) s 4(1); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic) s 4(1) and Commonwealth Powers (De Facto Relationships) Act 2009 (SA) s 4(1). 10 FLA s 72(1). 11 See further Jacky Campbell, ‘Property Settlement When Parties Are Not Separated or Are Involuntarily Separated Post-Stanford’ (2013) 23 Australian Family Lawyer 18.

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(see further 2.3.2). However, Stanford also suggests that the ‘central importance’12 of the requirement that the court shall not make the order unless in all the circumstances it is just and equitable to do so will present challenges for applicants seeking orders outside the context of marriage breakdown (13.4).

13.2.4.2  Time limit for institution of property settlement proceedings Section 79 property proceedings must normally be commenced within one year of a divorce becoming final (section 44(3)). For de facto partners, the time limit for commencing section 90SM property proceedings is two years following the end of the relationship (section 44(5)). At first glance the time limits for married and de facto relationships differ but the requirement of separation for one year before a divorce order application can be made (4.2.4) means that in reality the legislation aims for parity here. In practice, however, the time limits are more generous to separating spouses, given that they often take longer than a year after separation to apply for divorce. A further potential disadvantage faced by de facto partners is that because the end of their relationship is not evidenced by a court order, as it is for spouses, it will be necessary to determine when the relationship ended if it is claimed by the other side that the time limit for commencing proceedings has expired13 (in addition to establishing that it was a ‘de facto relationship’ within the meaning of FLA section 4AA if there is dispute regarding the nature and/or duration of the relationship: 4.2.1). Notwithstanding time limits, the court in which proceedings are to be instituted can give leave to commence proceedings out of time if hardship would otherwise be caused to a party or a child of the marriage (FLA section 44(4) or a de facto relationship (section 44(6)).14 The courts have taken the view that ‘power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the [date divorce becomes final]’.15 When determining cases, courts have adopted a two-step approach: (1) determination of the hardship requirement and (2) determination of whether the court should exercise its discretion to extend time. In assessing hardship: It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case … the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship

12 Stanford (2012) 247 CLR 108; [2012] HCA 52, [22] (French CJ, Hayne, Kiefel and Bell JJ). 13 For example, Preston & Maine [2013] FamCA 393 (Cronin J). 14 ibid. 15 Whitford & Whitford (1979) FLC 90-612, 78,146 (Whitford) (Asche, Pawley and Strauss JJ). For a recent example see Sharp & Sharp [2011] FamCAFC 150, [17]–[22] (May and Ainslie-Wallace JJ),

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exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted’.16

If hardship is established, the applicant must also persuade the court that its discretion to grant leave should be exercised.17 Relevant matters include but are not limited to ‘the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant’s case, and the degree of the hardship which would be suffered unless leave were granted’.18 The limitation period prescribed by section 44(3) does not apply where the parties were divorced in an overseas jurisdiction and the divorce was recognised in Australia pursuant to FLA section 104 (see also 3.4.2), a point recently confirmed by the Full Court in Anderson & McIntosh.19

13.2.4.3  Proceedings may be continued after death of a party If a party has died after institution of property proceedings, those proceedings may be continued20 by that party’s personal representative (section 79(8)/90SM(8)) and orders enforced against that party’s estate (section 79(1A)/90SN). Stanford underlined that it is necessary in such cases for the court to determine ‘whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order’ (section 79(8)(b) and section 79(2)).21 Stanford involved parties who had been married for 37 years, living in a home owned by the husband. When the wife became ill and required nursing home care, the husband continued to provide for her, including putting $40,000 in a bank account for her medical needs. The wife’s daughter from her first marriage (acting as the wife’s case guardian) was unhappy with the nursing care being provided and initiated section 79 proceedings, continuing these after the wife’s death before the Full Court’s decision was handed down. The HCoA, allowing the husband’s appeal, held that it had not been shown in accordance with section 79(8) that had the wife not died it would have been just and equitable to make the property orders, with the result that it was not open to the Full Court to find that it was still appropriate to do so.22 In particular, ‘[i]t was not shown that the wife’s needs during her life were not being met or would not be met’23 and, even if this had not been the case, spousal maintenance orders may have provided a more appropriate alternative, given that the husband would otherwise have to sell the home in which he was living if the wife’s property claim was successful. 16 Sharp & Sharp [2011] FamCAFC 150, [17]–[22] (May and Ainslie-Wallace JJ, citing Whitford (1979) FLC 90-612). 17 Whitford (1979) FLC 90-612. 18 ibid., 78,145–78,146 (Asche, Pawley and Strauss JJ). 19 Anderson & McIntosh [2013] FamCAFC 200 (Bryant CJ, May and Thackray JJ). 20 If proceedings have not been instituted the general law, the will of the deceased or the testator’s family maintenance legislation will apply. 21 Stanford (2012) 247 CLR 108; [2012] HCA 52, [24] (French CJ, Hayne, Kieffel and Bell JJ); Heydon J considered that as s 79(8)(b)(i) had not been satisfied it was not necessary to consider s 79(8)(b)(ii)). See also Watson & Ling [2013] FamCA 57 (Murphy J). 22 Stanford (2012) 247 CLR 108; [2012] HCA 52, [53] (French CJ, Hayne, Kiefel and Bell JJ). 23 ibid., [49] (French CJ, Hayne, Kiefel and Bell JJ).

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A policy issue underlying Stanford was that the daughter stood to gain a better outcome under the FLA for the wife’s children than would occur under the husband’s will, which left his home, subject to a life interest to his wife, to the children of his first marriage— especially given that at that time step-children were not able to make a claim on their stepparent’s estate under WA law, where the case originated.24 While Stanford underlines that section 79(8) ‘operates just in this way’,25 it also suggests that in these circumstances the requirement that it be just and equitable both before death and after death to make an order may be a significant hurdle for applicants and that consideration should be given to whether maintenance orders would meet the needs of the claimant spouse.26

13.2.5  Procedure for exercise of discretion under FLA ­section 79/90SM: Overview The FLA confers a very broad discretion on courts exercising jurisdiction under the FLA: the court ‘may make such order as it considers appropriate altering the interests of parties in the property’ (FLA section 79(1) (matrimonial disputes); see also section 90SM (de facto disputes). The Act further provides that ‘[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’ (section 79(2)/90SM(3)). In exercising its discretion, the court must also take into account a list of factors set out in section 79(4)/90SM(4), which as a result of section 79(4) (e)/90SF(4)(e) incorporates the factors set out in section 75(2)/90SF(3): 79 Alteration of property interests (1)

In property settlement proceedings, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines. … 24 See further Campbell, above n 11. 25 Stanford (2012) 247 CLR 108; [2012] HCA 52, [30] (French CJ, Hayne, Kiefel and Bell JJ). 26 Martin Bartfeld, Stanford and Stanford—Lots of Questions—Very Few Answers, Law Institute of Victoria, Melbourne, 2013.

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(2) (4)

The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and the matters referred to in subsection 75(2) so far as they are relevant; and (e) (f ) any other order made under this Act affecting a party to the marriage or a child of the marriage; and (g) 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.

75 Matters to be taken into consideration in relation to spousal maintenance (1) (2)

In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (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

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(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 (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

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(p) (q)

the terms of any financial agreement that is binding on the parties to the marriage; and the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The broad discretion conferred by section 79/90SM on courts to reallocate interests in the parties’ property results, as Patrick Parkinson has observed,27 from two elements: (1) the jurisdiction extends to all of the property of the parties, whenever acquired; and (2) an absence legislative guidance regarding how section 79 should be interpreted and applied. The reported cases suggest that the highly discretionary form of our law leads to variations in outcomes. However, the extent of variation (including regional variation around Australia) in judicially determined cases, let alone in the much larger number of cases where parties are legally advised and settle without adjudication (Chapter 12) remains unclear.28 Most recently, the Australian Institute of Family Studies’ Longitudinal Study of Australian Families Wave 3 findings (involving telephone interviews in late 2012 with 9,028 parents separating after the 2006 amendments (comprising 5,755 members of the original sample (interviewed in late 2008) and a ‘top-up’ sample of 3,273 parents) were that, in cases where there were assets to divide, fathers on average reported 65 per cent going to the mother while mothers on average reported receiving 49 per cent, suggesting that differential reporting is also a relevant factor here, as it is for child support (11.2.4).29

13.2.5.1  What is the procedure? The impact of Stanford The HCoA’s decision in Stanford suggested that the four-step approach to determining property disputes that had evolved in the FLA case law placed insufficient emphasis on the section 79(2)/90SF(3) requirement that it be just and equitable to make an order. However, the facts in Stanford were unusual and the HCoA did not actually determine the property dispute in that case (the applicant having failed to establish that it would have been just and equitable to make an order had the wife not died). As a result, uncertainty has surrounded the wider significance and impact of Stanford for FLA property cases, including the approach to determining disputes. Before the HCoA’s decision in Stanford in November 2012, the approach for determining FLA property disputes had appeared reasonably settled, with courts commonly determining property applications by reference to a process involving four steps (or stages),30 namely 27 Patrick Parkinson, ‘Quantifying the Homemaker Contribution in Family Property Law’ (2003) 31 Federal Law Review 1, 5. 28 Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) 30 Journal of Law and Society 156, 163; Rosemary Hunter with Ann Genovese, Angela Melville and April Chrzanowski, Legal Services in Family Law, Justice Research Centre, Sydney, 2000, pp 166–7. 29 Lixia Qu, Ruth Weston, Lawrie Moloney, Rae Kaspiew and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, p 102. 30 Although the way in which was described by the Full Court has changed slightly over time. For example, in In the Marriage of Pastrikos (Pastrikos) (1979) 6 Fam LR 497, 499 the s 79 procedure was said to comprise a ‘dual exercise’ involving (1) identification and valuation of property and assessment of contributions, and (2) assessment of the s 75(2) factors. A few years later in Ferraro [1992] FamCA 64, [111] the procedure was described as having three steps: (1) identification and valuation of property; (2) contributions assessment; and (3) consideration of the matters in s 79(4)(d)–(g), especially the s 75(2) factors. In Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395 (Hickey), [39] the Court said that property and financial resources of the parties at the date of the hearing should be identified and valued at step 1, and consideration of the ‘just and equitable’ requirement was included as the fourth step.

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1. identification and valuation of the parties’ property and financial resources; 2. identification and assessment of the parties’ contributions to their property and to the welfare of the family (section 79(4)(a)–(c)/90SM(4)(a)–(c); 3. identification and assessment of the matters in section 79(4)(d)–(g)/90SF(4)(d)–(g), especially the matters in section 75(2)/90SF(3); and 4. determination of what orders would be just and equitable.31 This approach, while not ‘legislatively mandated’,32 was routinely set out and followed in section 79 cases33 and in section 90SM cases after the de facto financial provisions came into effect. It was said by differently constituted Full Courts that a trial judge who followed a different approach should indicate reasons for doing so,34 although failure to comply with it would not of itself or necessarily amount to an appealable error.35 In Stanford the HCoA36 did not refer to the four-step process so it was not approved or disapproved. Rather, the Court emphasised the centrality of the requirement under section 79(2) that the Court must not make an order unless it is just and equitable to do so. While saying that ‘just and equitable’ ‘does not admit of an exhaustive definition’,37 the Court also suggested that the requirement that it be just and equitable to make an order would be ‘readily satisfied’ in ‘many cases’ where the parties’ marriage has broken down: In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.38

In contrast, when spouses were living apart involuntarily (as in Stanford), ‘the bare fact of the separation’ did not show that it was just and equitable to make an order interfering with existing rights and interests in property. In addition, the HCoA laid down three ‘fundamental propositions’ for the exercise of discretion under section 79: 1. The first step in determining whether it is just and equitable to make a property order is identification, according to common law and equitable principles, of existing legal and equitable interests in property.

31 32 33 34 35 36 37 38

Bevan & Bevan (Bevan) [2013] FamCAFC 116, [59]–[64] (Bryant CJ and Thackray J). Martin & Newton [2011] FamCAFC 233, [305] (Bryant CJ and Thackray J). Beginning with Pastrikos (1979) 6 Fam LR 497. For a recent example see Hickey [2003] FamCA 395, [39]. In the Marriage of Whiteley [1996] FLC 92-684. See also In the Marriage of Shaw (1989) 12 Fam LR 806, 814: dealing with the contribution and s 75(2) elements together ‘itself is not an error of law or in the exercise of … discretion, but is grounds for close scrutiny by this court of the result so arrived at’. Norman and Norman [2010] FamCAFC 66, [60]–[61] (Finn, May and Murphy JJ). French CJ, Hayne, Kiefel and Bell JJ, Heydon J agreeing with the result but for different reasons. Stanford (2012) 247 CLR 108; [2012] HCA 52, [36] (French CJ, Hayne, Kiefel and Bell JJ). ibid., [42] (French CJ, Hayne, Kiefel and Bell JJ).

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2. Section 79 confers a broad power to make a property settlement order but must be exercised in accordance with legal principles; there is no assumption that the parties’ interests in property should differ from their existing interests. 3. Section 79(2) and section 79(4) are separate statutory requirements and must not be conflated. It would thus be incorrect to conclude that it is just and equitable to make an order by ‘beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property’39 or only because of reference to the matters in section 79(4), without reference to section 79(2).40 The key question after Stanford has been: what are its wider implications for family property law and practice, including the operation of the four-step approach?41 The Full Court’s first opportunity to provide guidance arose in Bevan, in which the husband and wife had been married for 22 years and had two children before the husband ‘took to the seas’ in 1994, executing a power of attorney in the wife’s favour and repeatedly telling her and others that she could retain all of their Australian property for herself and the children, only applying for property orders two days before the one year time period for commencing property settlement proceedings expired (13.2.4.3). In the husband’s absence, the wife had dealt with the parties’ property, managed some complex litigation surrounding their financial affairs, and had looked after the husband’s mother. At first instance, Jordan AJ awarded the husband $363,000 of the $1,069,000 property pool. The Full Court, however, allowed an appeal by the wife who argued that it was not just and equitable for the trial judge to make a section 79 order given the husband’s representations that the property in dispute was hers and his delay in pursing his claim.42 The Court subsequently re-determined the matter, declining to make orders in the husband’s favour.43 Thus the husband received nothing, even though it was accepted that he had: [m]ade valuable contributions over a period of 22 years and continued to make some contributions even after he decided to leave the wife and make his own way elsewhere in the world. We accept that a decision not to make any order interfering with existing property interests will leave the husband with virtually no assets and significant liabilities relating to the costs he has incurred in this litigation.44

It is strongly arguable that notions of fault and matrimonial conduct, although not mentioned in the reasoning, were at play in this case.

39 ibid., [40] (French CJ, Hayne, Kiefel and Bell JJ). 40 ibid., [37]–[40] (French CJ, Hayne, Kiefel and Bell JJ). 41 See, e.g., Patrick Parkinson, ‘Family Property Law and the Three Fundamental Propositions in Stanford v Stanford’ (2013) 3 Family Law Review 80; Jacky Campbell, ‘Stanford: An Examination of s 79 by the High Court, 13 December 2013’ [ 2012] 12 Australian Family Law Tracker 1; Stephen O’Ryan and Paul Doolan, ‘Property Settlement after Stanford v Stanford’, paper presented at the Family Law Section of the Australian Law Council Conference, 2013; Bartfeld, above n 26; Michael Kearney, ‘Palm Tree Justice in a Post-Bevan World’, paper presented at the Family Law Intensive, Family Law Section of the Law Council of Australia Conference, Sydney 5 February 2014. 42 Bevan [2013] FamCAFC 116 (Bryant CJ, Thackray and Finn JJ). 43 Bevan [2014] FamCAFC 19 (Bryant CJ, Thackray and Finn JJ). 44 ibid., [88] (Bryant CJ, Thackray and Finn JJ).

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It was also unfortunate that Bevan was the first opportunity to consider Stanford. Its facts, like Stanford (13.2.4.3), were unusual, and members of the Full Court appeared keen to demonstrate that they had taken heed of what the HCoA had said. Once again, questions surround the wider relevance of the case. Bevan does suggest, however, that while Stanford has re-focused attention on the ‘just and equitable’ requirement, the wider impact of this may be limited. Specifically, in allowing the wife’s appeal the leading judgment of Bryant CJ and Thackray J45 acknowledged Stanford’s greater emphasis than previously on the centrality of the ‘just and equitable’ requirement as a pre-condition to the exercise of discretion46 but also suggested that ‘the reminder in Stanford of the pivotal role of section 79(2) is unlikely to have an impact in most cases’47 because section 79 matrimonial property proceedings usually involve parties whose marriage has broken down, for whom the HCoA said the ‘just and equitable’ requirement is likely to be ‘readily satisfied’ in ‘many cases’. The Full Court’s subsequent re-exercise of the trial judge’s discretion in Bevan was also suggestive of subtle rather than radical change. Specifically, Bryant CJ and Thackray J appeared equivocal rather than dismissive regarding the continued application of the fourstep process, stating that ‘we have no issue … about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments’,48 as long as there was no assumption that the section 79(2) requirement had been met and the three fundamental propositions outlined by the HCoA in Stanford were not obscured. The approach taken by the Full Court when re-exercising discretion involved a greater emphasis on the section 79(2) requirement than has previously been evident in the case law, but the unusual facts in Bevan would have encouraged this even pre-Stanford. As in Stanford, the husband failed to establish that it was just and equitable to make an order and so guidance regarding the process to be adopted in section 79 disputes was once again limited. Post-Stanford and Bevan, we would suggest the following approach to sections 79 and 90SM disputes (there was no reference in Stanford or Bevan to de facto financial disputes, but the same approach has since been applied):49 1. Identify the existing legal and equitable interests of the parties in their property. 2. Determine whether it is just and equitable in the circumstances of the case, which may include reference to the matters listed in section 79(4)/90SM(4), to make an order altering those interests (section 79(2)/90SM(3)). 3. If yes, identify and assess the parties’ contributions to their property and to the welfare of their family (section 79(4)(a)–(c)/90SM(4)(a)–(c)). 4. Consider the additional matters in section 79(4)(d)–(g)/90SM(4)(d)–(g), including the matters in section 75(2)/90SF(3). 5. Resolve, in all the circumstances, what order would be just and equitable. 45 46 47 48 49

Finn J in a separate judgment agreed with the result but for slightly different reasons. Bevan [2013] FamCAFC 116, [67], [70] (Bryant CJ and Thackray J). ibid., [70]. Bevan [2014] FamCAFC 19, [19] (Bryant CJ and Thackray J). For example, Watson & Ling [2013] FamCA 57 (Murphy J).

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A difference between this approach (which is consistent with the Full Court’s decision allowing the wife’s appeal in Bevan)50 and the predominant approach followed by family law courts in the period after Stanford and before Bevan51 is our inclusion of section 79(4)/90SM(4) as a potentially relevant consideration when the court determines it is just and equitable to make an order. Recently in Chapman & Chapman,52 the Full Court made clear that there is no requirement to consider the s 79(4) factors when making a determination whether it would be just and equitable to make an order under section 79(2). In addition, the Full Court’s re-exercise of discretion in Bevan suggests that consideration of section 79(4)/90SM(4) at that point is likely to comprise a relatively truncated analysis (13.5), with the more detailed analysis of section 79(4) occurring when contributions are assessed and the additional factors are considered. However, the Court’s re-determination did not extend beyond concluding that it would not be just and equitable to make an order, and the Court’s emphasis on the breadth of discretion under section 79(2)/90SM(3)53 suggests that there may be cases where a more detailed consideration of section 79(4)/90SM(4) would be necessary in order to determine whether it is just and equitable to make an order. Two key challenges in any approach adopted are to (1) avoid ‘conflation’ of section 79(4)/90SM(3) while also considering the matters listed in s 79(4)/90SM(4) as part of the determination of whether it is just and equitable to make an order54 and (2) ensure that the just and equitable requitement is ‘one permeating the entire process’.55 The approach we suggest reflects those requirements. While the leading judgment in Stanford may be read to suggest that consideration of section 79(4)/90SM(4) should follow56 and be kept entirely separate from57 determination of whether it is just and equitable to make an order, we think that the HCoA’s focus was on conveying that when determining whether it is just and equitable to make an order, the matters to be considered include but extend beyond those matters listed in section 79(4), but when determining what order to make, it is the section 79(4) factors that must be applied. In this respect the HCoA’s approach differed from that previously taken by family law courts, which had involved merging the ‘just and equitable’ requirement with consideration of the section 79(4)/90SM(4) matters, with the result that the wider initial inquiry required for s 79(2) was not undertaken. However, the unusual facts in Stanford also encouraged this approach.

50 Bevan [2013] FamCAFC 116, [84], [87] (Bryant CJ and Thackray J). 51 Recent examples are Wollacott & Wollacott [2014] FamCA 5, [64]–[66](Loughnan J); Bangi & Belov [2014] FamCA 8, [22] (Watts J); Cartas & Dennis [2014] FCCA 12, [34]–[38] (McGuire J). 52 Chapman & Chapman [2014] FamCAFC 91 (Bryant CJ, Strickland and Murphy JJ). 53 Bevan [2014] FamCA 14. 54 Bevan [2013] FamCAFC 116, [89] (Bryant CJ and Thackray J). In order to avoid conflation, Bryant CJ and Thackray J suggested that ‘judges refrain from evaluating contributions and other relevant factors in percentage and monetary terms until they have first determined that it would be just and equitable to make an order’, referring to Martin Bartfeld, above n 26, in which (p 18) a distinction is made between the ‘discretionary’ and ‘evaluative’ characteristics of the matters listed in s 79(4). Finn J, however, did not find this distinction helpful ([171]). 55 Bevan [2013] FamCAFC 116, [86] [2011] FamCAFC 233, echoing Martin & Newton [2011] FamCAFC 233, [306] (Bryant CJ and Thackray J). 56 Stanford [2012] HCA 52, [42] (French CJ, Hayne, Kiefel and Bell JJ). 57 ibid., [51] (French CJ, Hayne, Kiefel and Bell JJ)].

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Like the previous four-step approach, the approach we suggest is not legislatively mandated. It is also more formulaic than Stanford or Bevan, in which no preferred approach emerged. While the development of an approach to questions arising under section 79/90SM is of ‘considerable utility for litigants, the profession and the Courts in the recognition of a common approach’,58 it will not necessarily be appropriate in all cases, departure from it would not necessarily amount to an appealable error, and we await further Full Court guidance on the (or an) approach to be taken in cases where it is determined that it would be just and equitable to make an order, given that in both Stanford and Bevan this was held not to be the case.

13.2.5.2  Wider implications of Stanford Stanford emphasises the breadth of judicial discretion under section 79/90SM yet also suggests that greater caution should be exercised than previously in deciding whether it is just and equitable to exercise that jurisdiction, and that if discretion is exercised it must be ‘principled’ in accordance with section 79(4)/90SM(4) rather than assuming any particular outcome. This is consistent with a recurring theme in the relationship between the HCoA and the family law courts: historically, the HCoA has discouraged attempts by the Full Court of the FCoA to provide ‘starting points’ for the exercise of discretion (13.5.1.2). However, as Richard Ingleby has commented, ‘[t]he effect of this is that the discretion of trial judges, broad enough by the terms of the legislation, is effectively even broader because of the Full Court’s inability to create firm rules to control the exercise of that discretion’.59 Given Stanford’s unusual facts, uncertainty surrounds the wider impact of the court’s emphasis on existing legal and equitable interest in property and the requirement that it be just and equitable to depart from those interests. As suggested in Bevan, this emphasis may be of limited practical relevance, given the HCoA’s reference to the ‘just and equitable’ requirement being ‘readily satisfied’ in ‘many cases’ where parties have ended their relationship. A more cautious approach to disrupting the status quo is likely to have particular risks for women given Australia’s separate property regime and women’s greater economic disadvantage compared to men (Chapter 10). Questions also arise regarding the implications of Stanford and Bevan for several of the specific issues considered in Chapter 14, including the treatment of ‘notional property’ (given Stanford’s emphasis on existing interests in property). As also discussed in Chapter 14, Stanford’s direction against ‘beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property’60 does not appear to sit comfortably with the continued application of approaches developed by family law courts to deal with specific issues—for example, the doctrine of ‘special skills’.

58 Kearney, above n 41. 59 Richard Ingleby, ‘Introduction: Lambert and Lampposts: The End of Equality in Anglo-Australian Matrimonial Property Law?’(2005) 19 International Journal of Law, Policy and the Family 137, 140. 60 Stanford (2012) 247 CLR 108; [2012] HCA 52, [40] (French CJ, Hayne, Kiefel and Bell JJ).

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13.3  Identification of existing legal and equitable interests of the parties in their property The HCoA’s first ‘fundamental proposition’ in Stanford requires determination of whether it is just and equitable to make a property settlement order to begin ‘by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property’.61 In this section, we focus on three issues arising from this requirement: 1. What interests need to be identified? 2. How is full and frank disclosure of interests achieved? 3. Do interests have to be valued at this point? Given that section 79/90SM jurisdiction extends only to interests in property owned by the parties together or individually, determining the interests of third parties will often be a crucial issue. For example, the court will often be required to determine whether property to which a company or trustee has legal title is in reality property of a party to a marriage or a de facto relationship, or whether a party to a marriage has disposed of property to a third party in anticipation of section 79/90SM proceedings, or whether the interests of the third party creditors or the trustee in bankruptcy should prevail over those of a non-bankrupt spouse or partner. Specific issues that arise in relation to the limits of the jurisdiction of courts under the FLA to reallocate interests in ‘property of the parties to the marriage or either of them’ (section 79(4)/90SM(4)) are discussed in Chapter 14.

13.3.1  What interests need to be identified? Before Stanford, step 1 of the four-step process for determining FLA property disputes had evolved to stipulate identification of the parties’ property and financial resources.62 The practice was ‘to list only assets legally owned by the parties and their “financial resources”’,63 on the basis that reallocation of existing interests in property under FLA section 79/90SM made identification of equitable interests unnecessary unless third parties were involved. In Stanford, however, the HCoA referred only to the requirement to identify ‘existing legal and equitable interests of the parties in the property’, raising two main questions: (1) to what extent do legal and equitable interests need to be identified and (2) do ‘financial resources’ still need to be identified? After first outlining how ‘property’ and ‘financial resource’ are defined under the FLA, we consider these two questions.

13.3.1.1  What is ‘property’ for the FLA? The question of what is ‘property’ for the FLA is highly significant because the court is limited to making orders only in respect of the ‘property’ of the parties to a marriage or de facto relationship. There is a narrow range of circumstances in which exceptions have been made to this general principle (for example, when there is non-disclosure of assets with 61 ibid., [37] (French CJ, Hayne Kiefel and Bell JJ). 62 Above n 30. 63 Jacky Campbell, ‘Stanford’, above n 41, p 10.

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the result that the property cannot be precisely determined at the date of trial: 13.3.2), but normally a section 79/90SM order ‘cannot exceed the totality of the net assets and/or superannuation entitlements of the parties’.64 ‘Property’ is defined in the Act to mean property to which the spouses, or either of them, ‘are entitled, whether in possession or reversion’ (our emphasis) (FLA section 4(1)) and has been given a broad construction by the family law courts. The case often cited for this point is In the Marriage of Duff,65 in which the Full Court gave its support to a broad definition of ‘property’ found in Jones v Skinner, an old English case: ‘Property is the most comprehensive of all terms which can be used inasmuch as it is indicative and descriptive of every possible interest which the party can have.’66 The Full Court considered that this definition of ‘property’ was descriptive of the nature of the concept of ‘property’ to which the FLA was intended to relate, and that ‘property’ for the FLA extended to real and personal property, and choses in action (that is, property that comprises a bundle of rights but has no physical form—for example, company shares). On this definition, for example, money owed to a party is ‘almost invariably treated as a present asset (subject to any discount for recoverability)’ rather than as future income.67 Future income is not ‘property’ for the FLA, but if the source of that income is an interest that is ‘property’ (for example, an interest in a partnership68 or shares in a company69) or is certain enough (for example, a pension entitlement under a superannuation scheme in its payment phase: 14.5), then that income stream can be capitalised (that is, a lump sum value can be attached to it for the purposes of property division) and treated as property. For example, in Pope & Pope,70 Ryan J held that the husband’s two royalty streams, arising from his membership of a highly successful entertainment group, were property for the FLA given that he was contractually entitled to receive them, they were interests he could assign and sell, and that given the group’s success he was likely to continue to receive royalties at the level calculated by the expert: There is no doubt that the husband is contractually entitled to receive both types of royalty streams which, for example, he can assign and sell … On balance, although it is difficult to predict with precision the amount through either royalty stream that the husband will receive in any given year, the group’s success and profile means it is likely that he will continue to receive royalties for many years in relation to which the essential calculation and approach by the company expert is sound … I am satisfied that the company expert’s opinion about the value of the royalty streams is sufficiently reliable for it to be included in the property pool.71

64 65 66 67 68 69 70 71

Gollings & Scott [2007] FamCA 397, [85] (Finn, Kay and Boland JJ). In the Marriage of Duff [1977] FLC 90-217 (Watson SJ, Murray and Wood JJ). Jones v Skinner (1835) 5 LJ Ch 90 cited in In the Marriage of Duff [1977] FLC 90-217, 76,133. In the Matter Of: Norma Jill Mitchell Appellant/Wife and Anthony Lewis Mitchell Respondent/Husband [1995] FamCA 32(Nicholson CJ, Fogarty and Jordan JJ). For a recent example see Crawford & Ruskin [2013] FamCA 493. In the Appeal Of: Suzanne Best Appellant and Gary William Best Respondent (Best)[1993] FamCA 107. For example, Ramsay v Ramsay (1997) 137 FLR 40. Pope & Pope [2012] FamCA 204. ibid., [117]–[118].

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Yet the nature of an asset may have an impact on the shaping of orders that are just and equitable (13.4). In other words, there is ‘a distinction between treating something as property for the purposes of a step in the reasoning, and treating it as property for the purposes of making orders’.72 This has been particularly evident in relation to superannuation (14.5) but was also evident in Kennon v Spry.73 Specifically, in Kennon v Spry a majority of the HCoA74 made clear that the definition of ‘property’ under the FLA is broader than under the general law, holding that the assets of a family discretionary trust were the property of the parties to a marriage, due to the husband’s power as a trustee to appoint the whole of assets of the trust to the wife who was a beneficiary.75 Indeed, Justices Gummow and Hayne went further, saying that the wife’s right as a beneficiary to the due administration of the trust was included in her property for the purposes of the Act.76 All three justices considered that a purposive approach should be taken to defining ‘property’ for the purposes of the FLA77 (meaning a definition that ‘advances rather than contains the subject, scope and purposes of the legislation’).78 The HCoA’s broad approach to the definition of ‘property’ for the FLA in Kennon v Spry may seem to conflict with the Court’s recent emphasis in Stanford on identification of the parties’ existing legal and equitable interests in property, as on trusts law principles the same interests would not exist (specifically, the trustee of a discretionary trust has legal title to the trust assets and the beneficiaries have an equitable right to due administration of the trust).79 Parkinson, however, suggests that the decisions can be reconciled on the basis of the distinction just mentioned between ‘treating something as property for the purposes of a step in the reasoning and treating it as property for the purposes of making orders’.80 An asset can be identified as ‘property’ and treated as such for the purposes of contributions assessment and adjustment on the basis of the additional factors, without orders necessarily affecting it. Consistent with this, in Kennon v Spry the HCoA concluded that the trust fund was the parties’ property for the purposes of the FLA and that as a result orders could be made for the husband to make a lump sum payment to the wife without stipulating the assets to be used to make that payment. However, this led to problems at the enforcement stage in Stephens & Stephens and Anor,81 in which the Full Court ultimately held that it had power to make orders that the husband, as the controller of the trust, satisfy his personal liability to the wife out of the assets of the trust, despite the existence of third

72 Parkinson, ‘Family Property Law’, above n 41, p 88. 73 Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56 (Kennon v Spry). 74 French CJ; Gummow and Hayne JJ. Heydon J dissenting and Kiefel J agreeing that the appeal should be dismissed but on the basis of FLA s 85A. 75 Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56, [81] (French CJ). 76 ibid. [126] (Gummow and Hayne JJ). 77 ibid. [64] (French CJ). 78 ibid. [89] (Gummow and Hayne JJ). 79 John Dyson Heydon and Mark James Leeming, Jacobs’ Law of Trusts in Australia, 7th edn, LexisNexis, Chatswood, 2006, [2315]. 80 Parkinson, ‘Family Property Law’, above n 41, p 90. 81 Stephens & Stephens and Anor (Enforcement) [2009] FamCAFC 240 (May, Boland & O’Ryan JJ).

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party beneficiaries whose interests would be adversely affected (relevantly, children of the marriage) (14.2.1).82

13.3.1.2  What is a ‘financial resource’? If a particular source of wealth does not constitute ‘property’, interests in it cannot be reallocated in section 79/90SM proceedings. However, it may still be taken into account when dividing other property, as a ‘financial resource’ of one of the parties via section 79(4) (e)/90SM(4)(e), which incorporates the section 75(2)/90SF(3) factors (13.2.4). These include section 75(2)(b)/90SF(3)(b), which requires the court to consider, among other things, the parties’ ‘financial resources’. In practical terms, this allows the court to award the party without the relevant financial resource an additional share of the property available for redistribution (the ‘offsetting’ approach). The family law courts have taken a broad approach to what will constitute a ‘financial resource’ for FLA purposes.83 In In the Marriage of Crapp, for example, Fogarty J considered that ‘financial resource’ had a wider connotation than ‘property’: In my view, it is a term which is clearly intended to be widely embracing. The term ‘resource’ is defined in the Shorter Oxford Dictionary to include ‘a means of supplying some want or deficiency; a stock or reserve upon which one can draw when necessary’.84

In In the Marriage of Kelly (No 2), the Full Court took a similarly broad view.85 The Court considered that ‘financial resource’ must add something not covered by the terms ‘property’ and ‘income’ in section 75(2), and could thus include a contingent interest or benefit that a party was likely to receive or actually receives, whether the party was legally entitled to it or not. However, a mere hope or expectancy of receiving a benefit will not be enough if there is no certainty that it will be realised. Thus being a beneficiary under a will where the testator is still living (and so may change their will) has been held not to amount to a financial resource for section 75(2)(b), although it may still be relevant under section 75(2)(o) (‘any other fact or circumstance’).86 Sources of wealth that have been held to constitute financial resources by the family law courts include assets of a third party (including a company) over which the party has practical control, the interest of a beneficiary of a discretionary trust (although after Kennon v Spry such interests may be viewed as ‘property’), the ability of a party to raise funds (for example, via borrowing), and regular gifts or financial assistance received by a party from their parent(s).87 Inconsistency in the case law before Kennon v Spry regarding whether trust assets can be property, or can only ever be a financial resource, reflected, respectively,

82 ibid., [351]–[357] (May, Boland and O’Ryan JJ). 83 In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762 (Evatt CJ, Emery SJ and Nygh J) (Kelly (No 2)). See also In the Marriage of Aroney (1979) 5 Fam LR 535. 84 In the Marriage of Crapp (1979) 5 Fam LR 47, 66–7. 85 Kelly (No 2) (1981) 7 Fam LR 762. 86 White and Tulloch v White (1995) 19 Fam LR 696. Cf. Sapir v Sapir (No 2) (1989) 13 Fam LR 362. 87 See further, Butterworths Australian Family Law, commentary to s 75(2)(b).

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differences in approach and opinion between family lawyers and trusts lawyers that are ongoing.88 Once a particular interest qualifies as a financial resource, the court’s assessment of its value will depend on the party’s degree of control over it and/or the benefits they can obtain from it—for example, the ‘financial resource’ may be viewed as being the receipt of rent rather than the capital value of property vested in a third party.89

13.3.1.3  To what extent do legal and equitable interests need to be identified? Pre-Stanford, courts had focused on identifying legal interests of parties in property. Equitable interests were most likely to be relevant where a third party interest was involved (14.2).90 In contrast, Stanford requires identification of each party’s legal and equitable interests in property. The extent and level of precision required to meet this requirement is unclear and there is understandable concern not to do more than required given the potential complexity (and thus cost) of the task. Parkinson, for example, draws the distinction between pre-existing equitable interests (required to be identified) and equitable interests arising as a result of court order (which are not). Parkinson concludes that as FLA property cases will generally involve the latter (in particular, constructive trusts arising by court order), the requirement will not add significantly to the duration and cost of section 79/90SM litigation—although he also suggests that consideration of equitable interests may be important when considering whether a section 78/90SL declaration offers an alternative to section 79/90SM orders.91 Subsequently in Bevan, Bryant CJ and Thackray J suggested (without deciding) that, consistent with the pre-existing position, determining a party’s equitable interest in property legally owned by the other would be unnecessary in cases where section 79 orders would be made, while cautioning that there would be exceptions.92 So far, the post-Bevan cases suggest that courts are taking a practical approach regarding the extent to which detailed consideration of legal and equitable interests in property is required. For example, in Galloway & Midden93 the Full Court held that the trial judge, Harland J, had erred in holding that properties in another country and paid for but not legally owned by the appellant formed part of the property of the parties, without considering how, if at all, the appellant could secure the transfer of the properties to herself.

88 John Glover, ‘Discretionary Trusts, Fiduciary Duties and the Family Law Act: Has the Family Court Acted Beyond Power?’ (2000) 14 Australian Journal of Family Law 184; Lee Aitken, ‘Muddying the Waters Further—Kennon & Spry: ‘Ownership’, ‘Control’ and the Discretionary Trust’ (2009) 32 Australian Bar Review 173; Diana Bryant, ‘Heterodox is the New Orthodoxy—Discretionary Trusts and Family Law: A General Law Comparison’, paper presented at the Society of Trust and Estate Practitioners South Australia Trusts Symposium 2014, 7 March 2014. The history of Kennon v Spry also exemplifies this point. 89 For example, Kelly (No. 2) (1981) 7 Fam LR 762. 90 A recent example is Gabini v Gabini [2014] FamCAFC 18. 91 Parkinson, ‘Family Property Law’, above n 41, p 90. 92 Bevan [2014] FamCAFC 19, [77]–[78] (Bryant CJ and Thackray J). However, Finn J arguably took a firmer line: [156]. 93 Galloway & Midden [2014] FamCAFC 22 (May J, sitting as the Full Court).

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Conversely, in Daines & Daines94 the Full Court held that the trial judge, Judge Cassidy, had not erred in failing to identify the legal and equitable interests of the parties in their property, as: each party put before her Honour a common list of the property of the parties or either of them; did not raise any contentions as to any equitable interests; and, importantly, each party contended for orders adjusting those existing property interests. Conversely, and significantly, neither party suggested to her Honour that no adjustment to those interests should be made by reason of s 79(2).95

Furthermore, this was a case in which the marriage had ended.96 The approaches so far appear consistent with Michael Kearney’s suggestion that the extent to which courts need to determine legal and equitable interests in property before consideration of section 79(4)/90SM is a matter of discretion and is likely to depend on what the parties contend, being necessary in cases when a party argues against any alteration of existing interests under section 79 and unnecessary when neither party contends that existing interests are relevant to the exercise of section 79 discretion.97

13.3.1.4  Do financial resources still need to be identified? Parkinson has taken the view that although in Stanford the HCoA did not stipulate that financial resources be identified, this needs to be done early on given their relevance to the overall inquiry.98 In other words, it may be just and equitable to make a property settlement order in favour of a party because the other party will retain a benefit that, although not amounting to a legal or equitable interest in property, is a ‘financial resource’ for section 75(2)(b)/90SF(3)(b).

13.3.2  Disclosure requirements in financial cases Chapter 13 of the Family Law Rules 2004 and Part 24 of the Federal Circuit Court Rules 2001 require full and frank disclosure of each party’s financial circumstances in section 79/90SM proceedings.99 This information is provided in a financial statement by each party (rule 13.05 (FCoA); rule 24.02 (FCCoA)) and by the filing if necessary of subsequent affidavits or an amended financial statement to provide further information. The disclosure requirements extend beyond the parties’ interests in ‘property’, to information about their income (including the income of any legal entity they fully or partially own or control), financial resources, trust connections,100 disposal of property by  94 Daines & Daines [2014] FamCAFC 61 (Ainslie-Wallace, Murphy and Loughnan JJ).  95 ibid., [40].  96 ibid., [41].  97 Kearney, above n 41, p 16.  98 Parkinson, above n 41, p 91.  99 In the FCoA ‘financial cases’ the Family Law Rules impose both a general obligation (r 13.01) and specific obligations (r 13.04). In the FCCoA, the Federal Circuit Court Rules provide that specific disclosure obligations apply when a financial statement is required to be filed in a ‘financial matter’ (r 24.03). ‘Financial case’ and ‘financial matters’ are widely defined in the dictionaries to the Family Law Rules 2004 and the Federal Circuit Court Rules 2001 to include property and spousal/partner maintenance cases. 100 A wide approach is taken here—e.g., if a party’s de facto is a shareholder in a corporation that is a beneficiary under a trust, this must be disclosed: Family Law Rules 2004, r 13.04(1)(f )(iii); Federal Circuit Court Rules 2001 r 24.03(1)(d).

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the parties or relevant entities in the 12 months before separation and subsequently, and the parties’ liabilities. If a party does not make full disclosure, or there is evidence that the party lied regarding their financial circumstances, the court may exercise its discretion in a manner adverse to that party’s interest. InWeir,101 for example, the Full Court found that the husband deliberately did not make full disclosure of his income. The Court estimated the amount not disclosed as at least $100,000, and ordered the husband to pay the wife half of this even though the Court did not know whether the source of wealth still existed.

13.3.3  Valuation In Stanford, the HCoA referred to interests in property being identified rather than valued, so it would seem that the latter is not required in every case. However, the court may need to value interests in order to determine whether or not it would be just and equitable to make an order altering them under section 79/90SM102 and so that the court is in a position to properly consider the matters listed in section 79(4)/90SM(4). Whether the court needs to determine the value of property interests will also depend on the wider circumstances; for example, where the only property in the pool is the matrimonial home and this will have to be sold, it may suffice for the court to specify what percentage of the sale proceeds each party should receive. It is also possible for parties to agree on the value of particular property but to be in dispute about their respective entitlements to that property. Given that financial resources are not divisible, the same strict approach to valuation does not need to be applied. The practice for many years has been to ascertain the value of the property of the parties by deducting their liabilities from the value of their assets. So, for example, if the family home is valued at $500,000 but is subject to a mortgage of $400,000 in favour of a lender bank, the value of the property for the purposes of the section 79/90SM proceedings will be $100,000. This approach is necessary given the fundamental requirement, discussed earlier, that section 79 orders are limited to property to which the parties are entitled. However, the court’s practice of deducting the parties’ liabilities from their assets varies depending on the nature of the creditor’s interest (secured or unsecured) and the circumstances of the case (the view that debts should be shared is subject to the general principle that financial losses will not be shared where one party has acted deliberately, ‘recklessly, negligently or wantonly’ in diminishing assets103 and a debt owed by a party that is not likely to be recovered may not be deducted). Allocation of responsibility for financial losses and liabilities is considered at 14.2. When valuation is required it is normally done close to the date of the hearing, although special circumstances may justify a departure from this approach.104 The court’s assessment 101 In the Marriage Of: Suzanne Margaret Weir Appellant/Wife And: William Hilton Weir Respondent/Husband [1992] FamCA 69 (Nicholson CJ, Strauss and Nygh JJ) (Weir). For more recent examples, see Somerset & Somerset [2009] FamCAFC 5 (May J); Linder & Linder [2013] FamCA 988 (Rees J). 102 Bevan [2013] FamCAFC 116, [159] per May J, referring to Martin Bartfeld, above n 26. 103 Kowaliw and Kowaliw (1981) FLC 91-092, 76,644 (Baker J) (Kowaliw). 104 In the Marriage of Wardman and Hudson (Formerly Wardman) [2005] FMCAfam 402.

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of value is a question of fact. The FLA does not set out a particular method for valuation (although there are special rules in relation to superannuation interests—see 14.5.3), and the court exercises its discretion to determine the most appropriate method. The starting point for most valuations is ‘fair market value’ but this may be a contested and complex matter to determine and so is an area where expert witnesses may be required. Chapter 15 of the Family Law Rules 2004 limits the involvement of numerous expert witnesses in the determination of FLA disputes (including parenting and property disputes), in order to save the parties unnecessary expense, to reduce court time, and to address concerns about partisanship of experts. 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.105 Family law courts have also recognised that property may have a value for parties exceeding its market value (for example, in relation to shares in family companies),106 and the ‘real value’ of property to the parties is also a relevant consideration in the context of determining what orders would in the end be just and equitable (13.7). Where the court is unable to ascertain the value of an asset, an order for its sale may be appropriate, although whether this is a viable option will depend on the nature of the asset. Even when a single expert is agreed on, valuation is likely to present difficulties when the assets are complex. For example, it may be very difficult to value shares in a closely held company whose shares are not publicly traded and thus have no obvious market value.107 It may also be difficult to value the shares in a company by looking at the value of the company’s business or other assets (for example, how should an interest in a company be valued when the primary asset of the company is intellectual property rights that are still being developed?).108 Due to problems associated with valuation of assets, along with the different levels of risk attached to particular assets and the fact that some assets are more liquid than others, ‘a distribution that superficially is “fair”, in reality may be just the opposite’.109 For example, dividing the net value of the property in half and allocating assets comprising 50 per cent each of the pool to the husband and wife may not take sufficient account of the fact that some assets are more risky than others, ‘both in terms of the risk inherent to the asset and with respect to the individual’s ability to manage that risk’.110 For issues of valuation, risk and liquidity to be properly considered requires ‘a distribution plan that transcends the immediate financial statements placed before the court’.111

105 For a recent example in which an application was refused see Berrell & Berrell [2013] FamCA 676 (Kent J). 106 For example, In the Marriage Of: John Oswald Turnbull Respondent/Husband and Catherine Anne Turnbull Applicant/Wife John Richard Turnbull Bald Hills Pty Ltd Allans Water Pty Ltd Apropos Pty Ltd Interveners [1990] FamCA 157; Between: Rosemary Elizabeth Harrison Appellant/Wife and Ian Robert Harrison Cross Appellant/ Husband [ [1996] FamCA 12 (Ellis, Baker and Warnick JJ). 107 This issue was considered in Mallet v Mallet (Mallet) (1984) 156 CLR 605; [1984] HCA 24, 615–7 (Gibbs CJ), 627–8 (Mason J), and 641–3 (Deane J). See also Miller; McFarlane [2006] 2 AC 618 and Ramsay (1997) 137 FLR 40. 108 See further David Rosettenstein, ‘“Big Money” Divorces and Unequal Distributions: Value, Risk, Liquidity and Other Issues on the Road to Unfairness’ (2005) 19 International Journal of Law, Policy and the Family 206, 209, which refers to a US example to this effect. 109 ibid. 110 ibid., 206. 111 ibid., 217.

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Yet achieving this is challenging in the absence of a crystal ball with which to foretell the future. So, for example, if there are no apparent plans to dispose of a particular item of property, it is unclear whether the court when valuing that property should take into account potential taxation liabilities (12.4.2) that would arise if the asset were disposed of: Whether the incidence of capital gains tax should be taken into account in valuing  a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.112

Other options might be to take a potential taxation liability into account in the context of determining what orders would be just and equitable under section 79(2)/90SF(3)113 or to make a contingent order that would operate if and when the taxation liability arose.114 Similarly flexible approaches have been applied to other assets that are difficult to value, including superannuation (14.5). An example of the vagaries of valuation is Best,115 in which two different approaches to valuing the husband’s partnership interest in a law firm were put forward by counsel for the husband and wife, resulting in very different valuations of $18,968 and $161,606 respectively. The trial judge accepted the latter (that is, the wife’s) valuation, which was based on a capitalised value of the husband’s future earnings. No challenge was made to this approach on appeal, so the Full Court did not express any view about the correctness of the methodology or the figure arrived at.116 More recently, in Pope & Pope,117 complexity surrounded the retrospective valuation of the husband’s interest in a well-established entertainment group at the time when the parties commenced cohabitation, given that the group was ‘well advanced along a trajectory’118 towards ‘spectacular success’119 by the time cohabitation commenced. Even more complicated was determination of the value of his future royalty streams. In the absence of any accepted valuation methodology, the Court considered that the valuation of an expert was ‘sufficiently reliable’ for the royalty streams to be included as property in the FLA section 79 proceedings.

13.4  Is it just and equitable to make an order? While there is no ‘legislatively mandated’ approach, Stanford and Bevan tell us that determination of whether it is just and equitable to make an order follows identification of the parties’ legal and equitable interests in the property. 112 Rosati and Rosati (Rosati) [1998] FamCA 38, [6.36]. See further IABH & HRBH [2006] FamCA 379, [77]–[78] (Finn, Coleman and May JJ). 113 Rosati [1998] FamCA 38, [6.44]. 114 ibid., [6.42]–[6.43]; Jarrott & Jarrott [2012] FamCAFC 29, [62]–[63] (Coleman, May and Thackray JJ). 115 Best [1993] FamCA 107. 116 ibid., 946. 117 Pope & Pope [2012] FamCA 204 (Ryan J). 118 ibid., [4]. 119 ibid., [107].

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Much less clear is what exactly the court must consider when making this determination. Indeed, the HCoA emphasised in Stanford that: The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.120

Similarly, the Full Court in Bevan was ‘at pains to stress [that] section 79(2) confers a wide discretion, and therefore each case will turn entirely on the view taken by the judicial officer of the facts and merits of that case’.121 However, it is clear, on the basis of the three ‘fundamental propositions’ in Stanford (13.2.5.1), that making this determination requires having regard to the parties’ existing interests in the property, without any assumption that those rights should be altered, and with reference to matters extending beyond those listed in section 79(4),122 including ‘any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable’.123 Also relevant will be any agreement between the parties during their relationship regarding their property: The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.124

While the HCoA said that in ‘many cases’ where the relationship had ended the requirement that it is just and equitable to make an order would be ‘readily satisfied’, it is clear from Bevan that this will not always be the case. As noted earlier, the facts in that case were highly unusual. There are more common scenarios where the same outcome may be likely, including short relationships, childless relationships and relationships in which parties have kept their finances separate. As discussed in Chapters 4 and 10, while earlier empirical research suggests that these features often characterise de facto relationships, more recent research suggests that viewing marital status as the key causative factor shaping financial arrangements within intimate couple relationships risks oversimplification. An appreciation of this appeared evident in Watson & Ling,125 in which Murphy J determined that it would not be just and equitable to make an order, identifying as relevant factors the parties’ short (five-year) de facto relationship during which they had maintained separate finances, Ms Ling had added to her pre-existing property and Mr Watson had contributed very little. The case underlines the capacity for a wide range of matters related to the parties’ relationship to influence the court’s determination of the ‘just and equitable’ requirement. The fact that Mr Watson had died and the proceedings were being continued

120 121 122 123 124 125

Stanford [2012] HCA 52, [36] (French CJ, Hayne, Kiefel and Bell JJ). Bevan [2014] FamCAFC 19, [92] (Bryant CJ and Thackray J). Stanford [2012] HCA 52, [37]–[40] (French CJ, Hayne, Kiefel and Bell JJ). ibid., [46] (French CJ, Hayne, Kiefel and Bell JJ). ibid., [41] (French CJ, Hayne, Kiefel and Bell JJ). Watson & Ling [2013] FamCA 57 (Murphy J).

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by his former wife in the name of his estate (section 90SM(8)) may also have played a role in shaping the outcome. The requirement that it be just and equitable to make an order is also likely to be difficult to satisfy when spouses live apart but the relationship has not ended, as the ‘bare fact of separation’ does not show that departure from the parties’ pre-existing arrangements is justified.126 This was the case in Stanford, in which the husband and wife lived apart due to the wife’s illness requiring nursing home care. The key factor influencing the HCoA’s conclusion that it had not been shown that it would have been just and equitable to make an order had the wife not died was the absence of any evidence suggesting that ‘the wife’s needs during her life were not or would not be met’.127 The Court referred to the husband’s having set aside money for the wife’s accommodation and care (although not to the trial judge’s acceptance that the wife’s daughter’s ‘motivation in bringing and pursuing these proceedings was to obtain funds to provide a better standard of care for her mother’).128 The HCoA indicated that, even if the wife’s needs were not being met, the trial judge should have considered whether a spousal maintenance order would have been sufficient to meet her needs.129 Overall, Stanford and Bevan suggest that a wide-ranging yet practical analysis is required when determining whether it is just and equitable to make a property settlement order. However, in order to avoid any allegation of ‘palm tree justice’,130 that analysis must be grounded in the terms of the FLA (including the purpose of the Federal Parliament’s constitutional power to make laws altering property rights, which is to avoid injustice that would otherwise occur, and the matters listed in section 79(24)/90SM(4)) and ordinary legal and equitable principles, in particular whether departure from existing interests is justified, including consideration of other alternatives such as maintenance. As the court must be satisfied that it is just and equitable to make an order, the fact ‘[t]hat both parties seek an alteration of property interests may well be indicative that s 79(2) is satisfied, but not necessarily so’.131

13.5  Identifying and assessing contributions The matters listed in section 79(4)/90SM(4) fall into two main categories comprising identification and assessment of (1) contributions (section 79(4)(a)–(c)/90SM(4)(a)–(c)) (a retrospective exercise) followed by (2) additional matters mainly of a prospective nature (section 79(4)(d)–(g)/90SM(4)(d)–(g)). This section is concerned with the former and the next section (13.6) with the latter.

126 Stanford [2012] HCA 52, [43]–[44] (French CJ, Hayne, Kiefel and Bell JJ). This issue does not arise in de facto cases due to the requirement of relationship breakdown for exercise of FLA jurisdiction (13.2.4.1). 127 ibid., [49] (French CJ, Hayne, Kiefel and Bell JJ). 128 ibid., [43] (Bryant CJ, May and Moncrieff JJ, referring to the first instance decision of Magistrate Duncanson). 129 ibid., [47] (French CJ, Hayne, Kiefel and Bell JJ). 130 R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 257 per Barwick CJ, Gibbs, Stephen and Mason JJ; referred to with approval in Stanford (2012) 247 CLR 108; [2012] HCA 52, [38] (French CJ, Hayne, Kiefel and Bell JJ). 131 Parkinson, ‘Family Property Law’, above n 41, p 86.

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As noted earlier, identification and assessment of contributions are retrospective exercises. The court considers the parties’ financial (FLA section 79(4)(a)/90SM(4)(a)) and non-financial (section 79(4)(b)/90SM(4)(b)) contributions up to the date of the hearing to the acquisition, conservation and improvement of their property and to the welfare of their family (section 79(4)(c)/90SM(4)(c)). The requirement to assess contributions was underlined by the Full Court recently in Robertson & Robertson,132 in which it was held that the federal magistrate erred because he had ‘failed to make findings as to the respective contributions of the parties [and] did no more than identify the relevant sections of the Act’.133 However, the level of detail required has been more contentious (13.5.1.2). When determining what order to make, the usual approach of the family law courts has been to make a finding regarding contributions (for example, 50 per cent to the husband and 50 per cent to the wife, on the basis that the husband and wife’s contributions have been equal) and then to consider whether any further adjustment should be made on the basis of the additional (prospective) factors (13.6)(for example, that an additional adjustment of 10 per cent should be made in the wife’s favour because of her ongoing and past role as primary caregiver for the parties’ children, reducing her ability to earn an income). However, the Full Court has emphasised that the allocation of percentages, while ‘a sensible and valuable tool, (particularly to promote consistency and predictability)’ is not a requirement.134 Nor is expressing the percentage split in dollar terms, although this will also often be done because ‘the quantum and effect of the mooted assessment of contributions’135 is relevant to the court’s consideration of the additional factors.136 Allocating percentage and dollar figures at the end of contributions assessment—and also after the additional factors have been considered (13.6.1.5)—is, however, a sensible step in helping to protect the decision against a later claim that the reasons were inadequate to explain the result.137 Despite the apparent precision that percentages and dollar figures convey, how exact figures were arrived at is often unclear in judgments. Indeed, the Full Court has repeatedly cautioned that ‘the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise’.138 To this end, allocation of a percentage figure to each paragraph, or to different categories of contribution during the relationship,139 ‘should be avoided’ as ‘contrary to the holistic analysis required by the section’,140 and an ‘over-zealous’141 approach to contributions assessment (and also in

Robertson & Robertson [2012] FamCAFC 60 (Finn, Strickland and Ryan JJ). ibid., [42] (Finn, Strickland and Ryan JJ). Kane & Kane [2013] FamCAFC 205, [3] (Faulks DCJ). Marsh & Marsh [2014] FamCAFC 24, [128] (Murphy J). Willis & Willis [2007] FamCA 818, [50] (Warnick, May, Stevenson JJ). For example, Bolger & Headon [2014] FamCAFC 27 (Thackray, Murphy and Kent JJ). Dickons & Dickons (Dickons) [2012] FamCAFC 154, [25] (Bryant CJ, Faulks DCJ, Murphy J). For example, initial contributions and contributions made during the relationship: Bolger & Headon [2014] FamCAFC 27, [22] (Thackray, Murphy and Kent JJ). 140 Dickons [2012] FamCAFC 154, [25]. See also Lovine & Connor and Anor [2012] FamCAFC 168, [41]–[42] (Coleman, Ainslie-Wallace and Kent JJ), Bolger & Headon [2014] FamCAFC 27, [22]–[28]. 141 Norbis v Norbis (Norbis) (1986) 161 CLR 513; [1986] HCA 17, 524 (Mason and Deane JJ). 132 133 134 135 136 137 138 139

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relation to the section 75(2) factors) is to be avoided.142 Furthermore, the fact that another judge might have arrived at a different result will not of itself be an appealable error (8.5.1): The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events[,] amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result.143

Mixed messages are therefore evident: the court must assess contributions but not go overboard, and whether too much or too little has been done will be decided on appeal. Stanford and Bevan offer no guidance regarding whether and to what extent the preStanford process for identifying and assessing contributions as just outlined has now changed (if so). As noted earlier, however, it is arguable (although less likely in practice in the usual run of cases) that the HCoA’s warning in Stanford that it would be incorrect to conclude that it is just and equitable to make an order by ‘beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property’144 will have a wider impact on assessment of contributions and the additional factors, encouraging a closer examination of the particular circumstances of the case and discouraging the application of a partnership approach: Stanford seems to have been a shot across the bows to the Family Court in relation to its whole approach to family property. … The jurisprudence of the Family court in the last 25 years or more has, despite the High Court’s decision in Mallet, been built upon an implied doctrine of community of property. That is evident in the approach to property acquired in the course of the relationship, with contributions typically being treated as equal (resulting in an equal division of property subject to s 75(2) adjustments.145

As also noted earlier (13.2.4.1), despite the potential dual role of section 79(4)/90SM(4), in Bevan the Full Court’s concise consideration in the course of determining the just and equitable requirement suggests that detailed assessment will generally occur in cases where the requirement is satisfied, although once again exceptions are likely. Our approach now and in the next section is consistent with this reading of Stanford and Bevan.

13.5.1  General points There are two points of general relevance to the procedure for assessing contributions: (1) when undertaking this task the court may take different approaches, depending on the parties’ assets and circumstances; and (2) there is not starting point that the parties’ contributions were equal.

13.5.1.1 Global, asset-by-asset, or combined approach When assessing contributions, the court may take what is known as a ‘global’ approach, or an ‘asset-by-asset’ approach, or an approach that combines these. 142 143 144 145

Dickons [2012] FamCAFC 154, [23]. G & G (2004) FamCA 1179, [74] (Kay, Warnick and O’Ryan JJ). Stanford (2012) 247 CLR 108; [2012] HCA 52, [40] (French CJ, Hayne, Kiefel and Bell JJ). Parkinson, ‘Family Property Law’, above n 41, pp 91–2.

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The global approach involves the court determining the overall contribution made by each party to their past and present property as a whole. An asset-by-asset involves the court looking at contributions made by each party to specific items of property, to the extent this is possible and reasonable in the circumstances given the general point that assessment of contributions does not involve a precise accounting exercise: ‘although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party’s contribution to them’.146 The global approach has been more usual (including in de facto cases147) with some exceptions.148 For example, an asset-by-asset approach has been more likely (but will not necessarily be taken)149 when the relationship has been short and finances have been kept separate,150 when one party (usually the male) has built up assets as result of ‘special skill’ (14.4), or when there has been a substantial lapse of time between separation and the date of the hearing during which the parties have accumulated substantial new assets and liabilities.151 It is also possible for a composite approach to be adopted,152 whereby the approach is global except regarding specific assets that the parties agree, or the court thinks, should be treated separately from the general pool, such as assets acquired before marriage or after separation (14.3). In 1986, the HCoA in Norbis153 considered which approach should be applied, and did not eliminate either possibility. The majority of the Court (Mason and Deane JJ, and Brennan J)154 considered that it was acceptable for the Full Court to express a preference for the global approach via the development of a guideline to this effect, but there was no majority in the HCoA preferring either approach. Following Norbis, the global approach became more usual. At a practical level, it is often more convenient and helps to reduce the time taken to hear the case, thus saving court time and reducing the parties’ legal costs. The global approach would also seem consistent with more recent empirical evidence regarding the way that couples often behave during longer term marriages and de facto relationships where there are children (10.3.1). In terms of the partnership and individualistic approaches set out at the start of this chapter, a ‘global’ approach is consistent with a partnership approach. Tactically, it is likely to be more advantageous for women whose contributions have been as homemakers and so are likely to receive a less generous assessment on contribution on an asset-by-asset basis.

146 Norbis (1986) 161 CLR 513; [1986] HCA 17, 523 (Mason and Deane JJ). 147 For example, Aitken & Murphy [2013] FamCA 3; Harrison & Cawley [2013] FCCA 1594. 148 See further In the Matter Of: Rebecca Miriam Zyk Appellant/Wife and David Zyk Respondent/Husband [1995] FamCA 135, [20]–[28] (Nicholson CJ, Fogarty and Baker JJ) (Zyk), in which the Court discussed circumstances in which the asset-by-asset approach may be appropriate. 149 For example, in Ferraro [1992] FamCA 64, a ‘special skills’ case discussed at 14.4.1, a global approach was taken. 150 For example, McMahon and McMahon (1995) 19 Fam LR 99; McGee & Kerr [2013] FCCA 402; Collins & Andrews [2013] FCCA 1488. 151 Z v Z [2005] FamCA 996; Polonius & York [2010] FamCAFC 228. 152 Norbis (1986) 161 CLR 513; [1986] HCA 17, 533 (Wilson and Dawson JJ): ‘In some cases either approach may be adopted in part or in whole’. 153 ibid. 154 ibid., 523–4 (Mason and Deane JJ), 541 (Brennan J).

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The practical efficiency of the global approach suggests that its use will continue in much the same way as previously. However, the emphasis in Stanford on the requirement of ‘a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage’,155 along with the warning that it would be incorrect to conclude that it is just and equitable to make an order by ‘beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property’,156 appear more consistent with an asset-byasset approach. Indeed, even before Stanford, the Full Court’s 2005 decision in Coghlan157 that superannuation should be treated as property in section 79 proceedings, although preferably listed and considered separately from other property (the ‘two pools’ approach), represented a shift back to an asset-by-asset or a combined approach, and raised the risk that women’s contributions to their male partner’s superannuation interests (and other property) might be inadequately recognised (14.5.4).

13.5.1.2  No starting point of equality While it is clear that there is no legislative starting point that parties’ contributions will be assessed as equal, family law courts have trodden a very fine line between acknowledging this and often readily concluded that different contributions should be viewed as equally valuable in the context of a marital or de facto partnership. Stanford’s discouragement of starting points is thus best understood as the latest chapter in an ongoing struggle between guidelines and discretion. Specifically, early on in the operation of the FLA, the FCoA developed a ‘working rule’ that in a long marriage, during which domestic assets had been built up by joint efforts and used for joint purposes, the court would start from a position of equal contribution to, and thus equal division of, those assets.158 Underpinning this approach was the view that it is appropriate to view different (that is, gendered) contributions as being of equal value. It was an approach consistent with a partnership view of marriage. The working rule was, however, not followed in the same way where the circumstances diverged from the model, particularly in cases involving assets not accumulated during the marriage as a result of the joint efforts of the parties. Examples included short marriages, pre-marriage assets and initial contributions, post-separation contributions, inheritances and business assets.159 This was probably due in part to the terms of FLA section 79(4) before amendment in 1983.160 Since 1983, contributions to the welfare of the family have appeared as a separate contribution in section 79(4)(c), whereas previously section 79(4) (b) provided that the court must have regard to non-financial contributions to property, 155 Stanford (2012) 247 CLR 108; [2012] HCA 52, [41] (French CJ, Hayne, Kiefel and Bell JJ). 156 ibid., [40] (French CJ, Hayne, Kiefel and Bell JJ). 157 In the Marriage of Coghlan, reported as C & C [2005] FamCA 429 (Coghlan) (Bryant CJ, Finn, Coleman, Warnick and O’Ryan JJ). 158 In terms of the reported Full Court cases, this approach had its genesis in In the Marriage of Rolfe (Rolfe) (1977) 5 Fam LR 146. There are first instance decisions indicating that the approach existed before this: McLeod and McLeod [1976] FLC 90-073, 75,348. The working rule was most clearly articulated and applied by the Full Court in In the Marriage of Wardman and Hudson (1978) 5 Fam LR 889. 159 For example, In the Marriage of Albany (1980) 6 Fam LR 461. 160 Family Law Amendment Act 1983 (Cth).

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including as a homemaker and parent. The drafting pre-1983 raised the question whether contributions as a homemaker or parent had to be referrable (that is, linked in some way) to property, encouraging a more cautious view regarding property over which the marriage partnership extended. The working rule was also departed from in cases where a further adjustment was made on the basis of the prospective factors in section 75(2).161 In 1983, the FCoA’s starting point of equal sharing was disapproved by the HCoA in Mallet.162 The HCoA viewed this approach as being inconsistent with the court’s discretionary power under section 79 to adjust interests in property. Of the majority,163 Wilson J took the strongest line regarding this, followed by Mason J. The individualistic approach exemplified in the later Full Court decision in JEL and DDF (Chapter 14) focused on the judgments of Mason J164 and Wilson J in Mallet to support the view that in every case ‘[t]here is a requirement to undertake an evaluation of the respective contributions of the husband and the wife’.165 Yet another notable feature of Mallet was Deane J’s strong dissenting judgment. Justice Deane understood the Full Court’s working rule to represent ‘no more than sound commonsense based on unrivalled experience’.166 It provided trial judges with a non-binding yet helpful guide, thus assisting in consistency in FCoA decisions. This approach became the majority position two years later in Norbis,167 when the issue of Full Court guidelines arose again, the question being whether courts should take a global or asset-by-asset approach when assessing contributions.168 In Norbis, Mason J and Brennan J joined Deane J to form the majority, and Wilson and Dawson JJ became the minority. Mallet was not overruled in Norbis,169 but the ability of the FCoA to devise non-binding guidelines was confirmed.170 Following Mallet and Norbis the FCoA engaged in a fine balancing act: in the post-Mallet period, whilst avoiding the suggestion that it was attempting to create a presumption or starting point, the Court has continued to emphasise that in the general run of marriages … the likely outcome will be equality of contributions even though the contributions may have been disparate.171 161 For example, Rolfe (1977) 5 Fam LR 146, in which the husband had looked after the children and the home for five years post-separation. 162 Mallet (1984) 156 CLR 605; [1984] HCA 21. 163 Gibbs CJ, Mason J, Wilson J and Dawson J. 164 In JEL and DDF [2000] FamCA 1353, [143] (Holden and Guest JJ) the judgment of Gibbs CJ is referred to but the quotation in fact comes from the judgment of Mason J in Mallet. 165 JEL and DDF [2000] FamCA 1353, [152] (Holden and Guest JJ). 166 Mallet (1984) 156 CLR 605; [1984] HCA 21, 641. 167 Norbis (1986) 161 CLR 513; [1986] HCA 17. 168 See further Richard Ingleby, in Caroline Bridge (ed.), Family Law Towards the Millennium: Essays for PM Bromley, Butterworths, London, 1997, pp 404–5, quoted by Lord Cooke in White v White [2001] 1 AC 596. 169 See Figgins & Figgins [2002] FamCA 688, [116] (Nicholson CJ, Ellis and Buckley JJ) (Figgins). 170 For a recent discussion of the distinction between a ‘binding rule of law’ (the failure to observe which constitutes an error of law), a ‘legitimate guideline’ (which guides discretion but does not replace it) and a ‘guideline’ (or statement of ‘unifying principle’ which does not amount to a ‘legitimate guideline’), see Hoffman & Hoffman [2014] FamCAFC 92, [32]–[44] (Faulks DCJ, Murphy J and Watts J). 171 The Family Court of Australia’s response to the federal Attorney-General’s Discussion Paper, Property and Family Law: Options for Change: A Discussion Paper, Commonwealth of Australia, Canberra, 1999, discussed in John Fogarty, ‘Never Mind the Quality—Feel the Width, Special Contributions’, paper presented at the 10th National Family Law conference conducted by the Family Law Section of the Law Council of Australia, Melbourne, March 2002.

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Consistent with this, and with a partnership approach, the general approach in the FCoA for many years, at least in marriages of reasonable duration and involving modest assets and contributions within the normal range, was that no detailed assessment of contributions is called for or appropriate and that contributions were regarded as having been equal.172 There were also indications in cases involving assets outside the normal range that judges taking a partnership view were becoming increasingly uncomfortable about evaluating contributions, with the practical result of this disinclination being the re-emergence of a starting point of equal contribution.173 A related and final important point to emerge from Mallet (particularly in the judgments of Mason J and Dawson J)174 was that a conclusion of equality might be more readily reached in long marriages when the property comprised domestic assets (typically, the matrimonial home and superannuation). When business assets were acquired as a result of the skills of the husband, equality of contribution was more questionable. Yet as noted earlier, Mallet was decided on the basis of the FLA before the 1983 amendments—in 1983, section 79(4) was amended to make it clear that a nexus between homemaker contributions and property was not required. While academic175 and judicial176 differences on the nexus requirement have been evident (with the Full Court’s recent decisions in Polonius & York177 and Marsh & Marsh (Marsh),178 taking the view that no nexus is required: Chapter 14), the 1983 amendments at least made it more arguable that claims could be made in relation to assets not accumulated during the marriage or as a result of the joint efforts of the parties.179 Mallet, then, arguably reflects a narrower view than is warranted on the basis of the current section 79(4).180 Consistent with this, in some Full Court cases181 decided in the late 1980s it seemed that the 1983 amendments were resulting in greater recognition of wives’ domestic 172 173 174 175

176 177 178 179 180 181

Ferraro [1992] FamCA 64, [199]. Ingleby, ‘Lambert and Lampposts’, above n 59, p 147. Mallet (1984) 156 CLR 605; [1984] HCA 21. See in particular Mason J (625) and Dawson J (649). For example, Patrick Parkinson, ‘Quantifying the Homemaker Contribution in Family Property Law’(2003) 31 Federal Law Review 1 (nexus required). Cf John Dewar, ‘Contributions outside Marriage’, paper presented at the 10th National Family Law conference conducted by the Family Law Section of the Law Council of Australia, Melbourne, March 2002 (no nexus required). Judicial views also appeared to diverge on this requirement (e.g., Bryson v Bryant (1992) 16 Fam LR 112 (where the majority insisted on a nexus between contributions and property being established) versus Parij v Parij (1997) 72 SASR 153 (where the nexus was not insisted upon). There is also healthy debate both among academic commentators and judges regarding the extent to which FLA s 79 was ever intended to codify existing equitable principles. For example, among academic commentators, John Dewar has argued, in contrast to Parkinson, that ‘although the original text of the Act seemed to link contributions clearly to the acquisition of property, it did so in terms far broader than anything contemplated by the law of implied trusts’. For example, In the Marriage of Farmer and Bramley [2000] FamCA 1615. Polonius & York [2010] FamCAFC 228, [115]–[119] (Boland, Thackray and O’Ryan JJ). Marsh & Marsh [2014] FamCAFC 24 (Ainslie-Wallace, Murphy and Le Poer Trench JJ), particularly Murphy J, [104]. A point recently underlined by the Full Court in Dickons [2012] FamCAFC 154, [14]–[22] (Bryant CJ, Faulks DCJ, Murphy J). Although in Mallet, Gibbs CJ indicated that he did not think that this would have affected his decision. In particular, In the Marriage Of: Rhonda Evelyn Napthali Appellant/Wife and Geoffrey Napthali Respondent/ Husband Appeal [1988] FamCA 9; In the Marriage Of: Andrew Meldrum Dawes Respondent/Husband and Elizabeth Wade Dawes Appellant/Wife Appeal (Dawes) [1989] FamCA 71; In the Marriage of Harris (Harris) (1991) 15 Fam LR 26.

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contributions. It also seemed that these contributions were more likely than previously to be traced into husbands’ business assets, as well as other assets not acquired during the marriage.182 Two examples are Dawes183 and Harris.184 In both cases, property comprised mainly of business assets accumulated by the husband was divided equally between him and his homemaker wife.185 In 1992 in Ferraro, the Full Court considered these cases in detail. The Court suggested that the partnership theme was evolving and strengthening, concluding that ‘a concept inherent in the FLA, to the effect that marriage is a social and economic unit between equals’ had been encouraged by both the 1983 amendments and by changes in social values that increasingly recognised the value of homemaker and parenting contributions.186 More recently, family law courts have struggled with the limits of this approach, particularly the extent to which the duration of the marriage and/or the circumstances in which property was acquired should have an impact on the way property is divided. The site for the struggle has generally (but not always) been high asset cases, often involving business assets accumulated by the husband while his wife looks after the home and the children. The vehicle for specific recognition of husbands’ contributions has been the doctrine of ‘special skill’ (or ‘special contributions’), which sits uncomfortably with a partnership approach to marital and de facto relationships (14.4.1). In Stanford, Norbis was not referred to and only the judgment of Gibbs CJ in Mallet (who of the majority took the most flexible view regarding the extent to which contributions assessment was required) was referred to. However, the point that there is no starting point of sharing or equality of contribution is consistent with emphasis in Stanford on the requirement of ‘a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage’,187 along with the warning that it would be incorrect to conclude that it is just and equitable to make an order by ‘beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property’.188

13.5.2  Contributions to property The court must take into account both the financial (section 79(4)(a)/90SM(4)(a)) and non-financial (section 79(4)(b)/90SM(4)(b)) contributions to property of the parties. In both instances, contributions may be direct or indirect. They may be to the ‘acquisition, conservation, or improvement’ of property, including property that the parties 182 A willingness to reward the wife’s domestic contributions out of pre-marriage property was indicated by In the Marriage of Shaw (1989) 12 Fam LR 806. 183 Dawes [1989] FamCA 71. 184 Harris (1991) 15 Fam LR 26. 185 Both were cases involving long marriages (30 years in Dawes and 24 years in Harris) during which business assets had been accumulated by the husband ($1 million in Dawes and $900,000 in Harris). In both cases the wife’s main role was as homemaker and parent, although in each case the wife also had a nominal role in her husband’s business to satisfy formal legal requirements regarding officeholders and for tax minimisation purposes. In Harris the wife had also worked in the business when required. 186 Ferraro [1992] FamCA 64, [207]. 187 Stanford (2012) 247 CLR 108; [2012] HCA 52, [41] (French CJ, Hayne, Kiefel and Bell JJ). 188 ibid., [40].

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have owned in the past but no longer own. Also, contributions may be made ‘by or on behalf of a party to the marriage’ (for example, contributions by parents of one party to a marriage on behalf of their child).

13.5.2.1  Financial contributions to property As just noted, financial contributions to property may be direct or indirect. Direct financial contributions to the ‘acquisition, conservation, or improvement’ of property include, for example, paying the deposit when the family home is purchased or making mortgage payments (acquisition), paying for home repairs (conservation), or paying for home renovations (improvement). Indirect financial contributions to property include paying household expenses (for example, water, gas and electricity bills and council rates). While some general patterns have emerged in the courts’ approach to particular categories of financial contribution, the guidance is not clear. For example: • In the case of gifts received from third parties (such as the parents of one of the parties) during marriage or a de facto relationship, the party to whom a gift is made is normally regarded as having ‘contributed’ it,189 but the timing of receipt and the duration of the parties’ relationship will be relevant: a gift received early on in a long union is likely to be given less weight as a contribution than a gift received close to the time when parties separate, or a gift received during a short union.190 • Similarly, an inheritance is more likely to be treated as the property of the beneficiary spouse or partner if it is received late in the relationship and if there are ‘ample funds from which an appropriate property settlement can be made and a just result arrived at’191 (suggesting a level of circularity in the reasoning). • Lottery winnings during a marriage or de facto relationship192 may be considered as a contribution of one or both of the parties, depending on the circumstances. The issue of who purchased the ticket is not decisive: where the marriage involves each contributing their income (or domestic services) towards the joint partnership constituted by their relationship, the purchase of the ticket is likely to be regarded as

189 In the Marriage of Gosper (1987) 11 Fam LR 601 (Fogarty J). The Full Court has subsequently held that all contributions by parents (and other relatives) to the property of the marriage will be taken to be contributions made on behalf of the party who is the child of the parents (or the parties’ relative), unless there is evidence that it was not the parent’s intention to benefit just their child: In the Marriage of Kessey (1994) 18 Fam LR 149. 190 A fairly recent example of the court’s weighing up process is In the Matter Of: Joseph Pellegrino and Ornella Pellegrino [1997] FamCA 52. The wife’s parents provided the parties with rent-free accommodation for 17 of the parties’ 18-year marriage, allowing the parties to accumulate other assets. Over this time, the parties carried out renovations on the property costing between $10,000 and $13,000. Chisholm J held that the contributions of the parties were equal apart from the rent-free accommodation which, as a contribution of the wife, resulted in a conclusion of contributions of 55/45 in her favour. 191 In the Marriage Of: Anthony Milton Bonnici Appellant/Husband and Jacqueline Angela Bonnici Respondent/Wife [1991] FamCA 86, [43] (Nicholson CJ, Nygh and Tolcon JJ). 192 Cf lottery wins before marriage/commencement of a de facto relationship or after separation, which are likely to be viewed as a contribution on the part of the party who purchased the ticket, e.g., Farmer and Bramley [2000] FamCA 1615.

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a purchase from joint funds, and the contribution of the prize would be seen as an equal contribution by the parties.193 • Depending on the circumstances, a damages award for personal injury may also provide a basis for both parties to claim that they have made relevant contributions: the portion of the award that relates to pain and suffering will be regarded as a contribution of the injured party, while their care by the non-injured party will amount to a contribution by the latter.194 This brief examination of particular categories of financial contribution provides an initial indication of the difficulty surrounding how section 79/90SM should be applied in the case of assets not accumulated during the marriage or de facto relationship as a result of the joint efforts of the parties. What claim should a party have to property to which they have not directly contributed? And what do the limits drawn in the cases tell us about underlying judicial views regarding the nature of the commitment represented by entry into marriage or a de facto relationship? In Chapter 14, we consider specific contexts in which these questions have been considered.

13.5.2.2  Non-financial contributions to property As noted earlier, non-financial contributions to property may be direct or indirect. Examples of direct non-financial contributions to property include building the matrimonial home, working on renovations or doing repairs. Indirect non-financial contributions to property include being a homemaker and primary caregiver to children and thus freeing up the other spouse for money-making activities. There will often be overlap between the paragraphs under which a contribution may be ‘counted’ and the Full Court has consistently emphasised that there can be no double counting of contributions. Thus a homemaker contribution counted under section 79(4)(b)/90SM(4)(b) cannot be counted again under section 79(4)(c)/90SM(4)(c) (contributions to the welfare of the family).195 As indicated earlier, however, the process of assessing contributions is often less clear and systematic than this directive would suggest. Since the enactment of section 79(4)(c) in 1983 (13.5.1.2), contributions to the welfare of the family have appeared as a separate contribution in s 79(4)(c)/90SM(4)(c) and so there has been less need for homemakers to utilise section 79(4)(b)/90SM(4)(b). There may, however, still be cases where paragraphs (b) and (c) are both relevant—for example, where a wife makes contributions under section 79(4)(b)/90SM(4)(b) via her support of her husband’s business activities (which may range from accepting a modest standard of

193 Zyk [1995] FamCA 135. Cf Between: Jeffrey Douglas Brease (Appellant/Husband) and Lilly May Brease (Respondent/Wife) [1997] FamCA 23, in which the trial judge found that the parties had not pooled their funds and the lottery ticket had been purchased with the wife’s money, with the result that the wife had made a much greater contribution under s 79 than the husband. The Full Court (Ellis, Finn and Purdy JJ) dismissed the husband’s appeal. 194 In the Marriage of Zubcic (1991) 14 Fam LR 559; for a recent example, see Danford & Danford [2011] FamCAFC 54. 195 For example, Ferraro [1992] FamCA 64, [178]. See also the judgment of Nygh J in In the Marriage of Shewring (1987) 12 Fam LR 139.

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living while he builds up the business, to taking on a more formal or direct role in the enterprise), in addition to her homemaker role.196 An interesting example of section 79(4)(b) in operation is In the Marriage of Whiteley,197 decided by the FCoA in 1992. Wendy Whiteley’s role as her famous husband Brett Whiteley’s artistic muse over their 30-year relationship was recognised under section 79(4)(b), as well as her role as homemaker and parent (section 79(4)(c)), with the result that their contributions were assessed as 70 per cent to 30 per cent in her husband’s favour. While Mallet laid the foundations, Whiteley marked the beginning of the FCoA’s recognition of ‘special skill’ (14.4).

13.5.3  Contributions to the welfare of the family Section 79(4)(c)/90SM(4)(c) requires the court to consider ‘the contribution made by a party to the marriage to the welfare of the family constituted by the parties of the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent’. Contributions under this section have been held to include those made during the time of the parties’ cohabitation (if any) before marriage ‘to the welfare of a cohabitation unit composed of persons who are [before the court] as the parties to the marriage in question’.198 As the wording of the section indicates, ‘family’ is quite restricted for section 79(4)(c)/90SM(4)(c), and does not include the extended family of the parties199 (although contributions to the care of children who are not children of the relationship can be recognised when the additional matters are considered, under section 75(2)(o)/ 90SF(3)(r)).200 A further restriction evident from the wording of section 79(4)(c)/ 90SM(4)(c) is that, unlike section 79(4)(a)/90SM(4)(a) and (b), contributions to the welfare of the family cannot be made ‘on behalf of ’ a party to a marriage or de facto relationship.201 Unlike section 79(4)(a)/90SM(4)(a) and (b), there is no stipulation in s 79(4)(c)/ 90SM(4)(c) that contributions to welfare of the family need to be linked to property. Whether or not a nexus is required between the timing of contributions and the acquisition of property has been subject of debate, with the most recent Full Court cases not insisting on this (13.5.1.2; see also 14.3). The family law courts have encountered particular difficulties regarding how homemaker contributions should be assessed and valued, and then weighed against contributions to property. These problems were clearly articulated by the Full Court in Ferraro:202 For example, Dawes [1989] FamCA 71. In the Marriage of Whiteley [1992] FLC 92-304. In the Marriage of G and G (1984) FLC 91-582, 79,695 (Nygh J). In the Marriage of: Husseyin Mulla Mehmet Appellant and Fatma Mehmet Respondent Appeal [1986] FamCA 24. In the Marriage of: Gaye Robb Appellant/Wife and David John Robb Respondent/Husband Appeal [1994] FamCA 136. 201 Thus in AB v ZB [2002] FamCA 1178, Mullane J held that childminding assistance provided to the parties by the wife’s parents when the wife undertook paid work was not a contribution for s 79(4)(c). However, there appears to be no reason why such contributions could not be considered under s79(4)(b). 202 Ferraro [1992] FamCA 64. 196 197 198 199 200

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The task of evaluating and comparing the parties’ respective contributions where one party has been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation cannot be conducted on a ‘level playing field’. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and can not readily be equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.203

The Full Court in Ferraro emphasised that valuing homemaker contributions was a particular problem in relationships in which roles are divided exclusively along gender lines (husband as breadwinner, wife as homemaker). Different—although related—issues arise in the now more usual case where women take on part-time work in addition to having primary responsibility for managing the home and caring for children (Chapter 10). The FCoA’s general approach is not to give women any extra credit for the ‘double shift’204 but also, conversely, not to view a woman’s homemaker contribution as being diminished where outside help was accessed to relieve the wife of doing some of that work (for example, a housecleaner or a child minder).205 These approaches are consistent with judicial reluctance to engage in a detailed qualitative assessment of homemaker contributions, which at a practical level would require increased court time and cost to the parties to an extent not warranted by the limited pools of property available to be divided in most cases. In other words, although these approaches appear consistent with a partnership view of marriage, the underlying reality may owe more to convenience and judicial discomfort about the task than to a commitment to gender equality.206 Indeed, an underlying and gendered double standard is often evident in the cases, involving breadwinner husbands’ modest homemaker and parenting contributions being described and credited very generously207 while the paid work typically done by wives in addition to their significant domestic and parenting responsibilities, and which is often very important for their family’s financial well-being, tends to be rendered invisible in the course 203 ibid., [200]. 204 For example, Between: Peter Sinclair Bremner Appellant/Husband and Sandra Sylvia Mary Bremner Respondent/ Wife Appeal [1994] FamCA 116 (Bremner ). Although in Hill v Hill (Reported as H & H) [2005] FamCA 42, (Kay, Holden and Boland JJ), which involved assets of over $10 million generated as a result of the husband’s stockbroking business, the Full Court considered that ‘[w]hilst the outcome reached by the trial Judge seems generous to the husband, it may be that on a thorough analysis of the parties’ contributions another judge may conclude that the husband’s financial contributions so outweigh the wife’s financial and non-financial contributions as to merit a significant imbalance as to outcome. However the wife’s contributions as a homemaker and parent coupled with her financial contributions throughout the marriage ought not necessarily be seen as being of any less worth than the financial contributions of the husband’ ([76]). 205 Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (CrossAppellant/Husband) Appeal [1997] FamCA 27; (1997) 22 Fam LR 1, 29 (Kennon ). See also In the Marriage of Aroney (1979) 5 Fam LR 535. 206 Ingleby, ‘Introduction: Lambert and Lampposts’, above n 59, p 147. 207 JEL and DDF [2000] FamCA 1353.

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of reaching the common conclusion that the parties’ contributions were equal.208 These patterns are consistent with the empirical research discussed in Chapter 10, particularly the consistent finding in sociological research on money and marriage that: Women’s income is regarded as their own by their spouses, who trivialise its importance to the household’s finances. Men, in their roles as breadwinners, are supposed to provide the necessities while women’s income is for discretionary spending. In reality, however, studies show that a woman’s income is more likely to be spent on household, rather than personal, goods; men are more likely to increase personal consumption if their wives earn.209

13.6  Consideration of additional factors In addition to identifying and assessing contributions, the court must take into account the factors set out in section 79(4)(d)–(g)/90SM(4)(d)–(g). This part of the process is prospective, involving consideration of issues related to the parties’ current and financial positions and the effect of any orders on the parties and their creditors. The main (but not the sole) focus are the factors listed in section 75(2)/90SM(3), which are brought into section 79/90SM by section 79(4)(e)/90SM(4)(e) and are often referred to by family law professionals as the ‘75(2) factors’.

13.6.1  The section 75(2)/90SF(3) factors Section 79(4)(e)/90SM(4)(e) requires the court to consider the matters referred to in section 75(2)/90SF(3) so far as they are relevant. The section 75(2)/90SM(3) factors comprise a list of 18 matters that appears in the FLA in the context of the spousal/de facto maintenance provisions. Given this, specific factors are dealt with in more detail in Chapter 15. Here, we focus on issues that arise when the section 75(2)/90SM(3) factors are applied in the section 79/90SM context.

13.6.1.1  Section 75(2)/90SF(3) adjustments: Changing approaches over time In the context of property division, the section 75(2) factors were initially less important, ‘justifying only minor adjustments from the position as reached on assessment of contributions’ but by the late 1990s it was observed that ‘significant adjustments are sometimes being made with reference to the section 75(2) factors’.210 This shift was described by Fogarty J in Waters and Jurek: In the majority of property cases little difficulty is encountered in the contribution step and increasingly in the general run of cases the conclusion is likely to be one of equality or thereabouts. There is no doubt that the centre of gravity in the

208 For example, Bremner [1994] FamCA 116. 209 Saba Waseem, Household Monies and Decision-Making, Policy Research Paper No. 23, Australian Government, Department of Family and Community Services, Canberra, 2004, p 1. 210 Patrick Parkinson, ‘The Diminishing Significance of Initial Contributions’ (1999) 13 Australian Journal of Family Law 52, 81. See also Kennon [1997] FamCA 27; (1997) 22 Fam LR 1; and Best [1993] FamCA 107.

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determination of property cases has, especially in more recent times, moved to the evaluation of the s 75(2) factors and the significance of that has been heightened because of recent full court decisions which have emphasised those provisions and indicated that they should be given real rather than token weight.211

At that time, in the context of what had looked like a general shift towards a starting point of equality of contributions, the additional factors seemed likely to be of increasing significance. Although the section 75(2)/90SM(3) matters are expressed in gender-neutral terms, the impact of their increased emphasis was usually in favour of women.212 This is hardly surprising, given the need-based focus of several of the section 75(2)/90SF(3) factors and the negative economic impact of relationship breakdown on women with dependent children (10.2). Before superannuation splitting became an option in 2002 (14.5.2), the combination of an equal assessment of contributions and a further adjustment on the basis of the section 75(2) factors could increase the chance that the mother would be able to keep the family home, thus having an important impact on the housing arrangements of the children in the usual case where they lived with their mother most of the time. Most recently, however, the Australian Institute of Family Studies (AIFS) evaluation of the 2006 shared parenting amendments213 cautiously suggested that following 2006 shared parenting amendments there had been a reduction in the likelihood and extent of these adjustments. About half of the 319 family lawyers surveyed by the AIFS in 2008 said that property settlements had changed in favour of fathers and that the average property division allocated to mothers had decreased by about seven per cent (from 63 per cent to 57 per cent) post-2006.214 Possible reasons for this suggested by the researchers included that bargaining dynamics/trade-offs may have been affected by the shared time amendments (for example, mothers trading away property to resist shared time claims by fathers) and that section 75(2) adjustments had reduced due to shared time arrangements (especially as a party’s care of children of the relationship under 18 is a relevant consideration under section 75(2)(c)/90SF(3)(c)). A reduction in section 75(2)/90SF(3) adjustments may also be partly due to the 2002 superannuation splitting amendments (with the result that section 75(2) adjustments are made less frequently: 14.5). Although no systematic analysis has so far been undertaken, recent Full Court shared time cases215 suggest that shared time is leading to a less generous approach to adjustments in favour of mothers than was evident in the late 1990s. For example in Wynona & Friend,216 the Full Court allowed the husband’s appeal in relation to property settlement orders, agreeing that Federal Magistrate Jarrett’s adjustment of 15 per cent in the wife’s favour for 211 In the Matter Of: Brent Geoffrey Herbert Waters Appellant/Husband and Mary Bohumila Jurek Respondent/Wife [1995] FamCA 101, [29] (Fogarty J) (Waters and Jurek). 212 Cf In the Marriage of Burke (1992) 16 Fam LR 324. 213 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kellie Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009, p 225. 214 ibid., p 225. 215 Further examples are Davida & Davida [2011] FamCAFC 38. See also Craven & Crawford-Craven [2008] FamCAFC 93, Nettler & Nettler [2009] FamCAFC 185, and Wayne & Wayne [2010] FamCAFC 33. 216 Wynona & Friend [2011] FamCAFC 6.

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the section 75(2) factors was too high. Federal Magistrate Jarrett had found that the parties’ contributions should be assessed at 52 per cent by the husband and 48 per cent by the wife, so the effect of the further adjustment of 15 per cent was that wife would receive 63 per cent ($229,702.83) of the net asset pool of $364,607.67 and the husband would receive 47 per cent ($134,904.84). The section 75(2) adjustment was made by Jarrett FM due to disparity between the parties’ income earning capacity (while the husband’s income earning capacity was a modest $40,000–$50,000 per annum, the wife’s was less), the husband’s failure to pay child support, and the wife’s greater care of the parties’ two children (aged eight and six years at the time of the orders, which also provided for a shared time arrangement involving the children living with the mother for 11 nights and the father for five nights per fortnight). The Full Court, however, found that Jarrett FM had erred in not considering whether the dollar value of the differential created by the section 75(2) adjustment resulted in a distribution that was not just and equitable:217 [T]he Federal Magistrate’s assessment under s 75(2) which had the effect of the wife receiving approximately one third of the total assets more than the husband was plainly wrong and appealable error is established.218

In its re-exercise of discretion, the Full Court reduced the section 75(2) adjustment in the wife’s favour from 10 per cent to five per cent (or $17,261.63, resulting in a differential between the parties overall entitlements of $20,714), concluding that a ‘modest’ adjustment was warranted ‘having regard to the need for the wife to re-establish herself in the workforce and her greater care of the children’.219 Apparent here is the future-focused approach often seen in parenting disputes, with the result that there is no or token consideration of the capacity via section 75(2)/90SF(3) to compensate a mother for ongoing financial inequality arising from her primary carer role during the relationship. Having a shared time arrangement in place after separation will not necessarily reduce the financial cost to her of having reduced her participation in paid work to care for the family. The extent to which she is able to recover financially will depend on several factors, including her ability to obtain work given the likely diminution of her skills and level of workforce participation since having children, the availability of affordable childcare and the extent to which she needs to shape her work commitments around her ex-partner’s availability to spend time with the children (Chapters 6 and 10).

13.6.1.2  Applying the section 75(2)/90SF(3) factors in the section 79/90SM context The drafting of the section 75(2)/90SF(3) factors reflects their positioning in the context of the spousal/de facto maintenance provisions of the FLA and it is unclear on the face of the Act how they should be applied in the section 79/90SM context. The judgment of Fogarty J in Waters and Jurek provides some assistance: 217 ibid., [176] (Faulks DCJ, Boland and Benjamin JJ). 218 ibid., [177]. 219 ibid., [200].

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[Section] 79(4)(e) includes in the s 79 exercise the factors in s 75(2) ‘so far as they are relevant’. Those words also serve a second and more important purpose, namely to make clear that the remaining paragraphs do not apply automatically but only where and to the extent to which they are ‘relevant’. That identifies the major issue in this case specifically and in other cases more generally—when are the one or more of the paragraphs in s 75(2) ‘relevant’. The answer to that is to be found in the imperative words contained in s 79(2), namely that the court shall not make an order unless it is satisfied that it is ‘just and equitable’ to do so. … In relation to some paragraphs the relevant connection is usually obvious; for example, para (c) relating to the ‘care and control of a child of the marriage’ traditionally calls for significant attention. Others are rather ethereal so that a concrete connection between them and the ‘just and equitable’ exercise of redistributing property is much more difficult to mark out. In this case the attachment was to para (b) which is also a commonly relevant provision as it deals with the ‘income, property and financial resources of the parties’ and their capacity for appropriate gainful employment. It has a special relevance in dealing with difficult problems such as superannuation, or income capacity differences arising from responsibilities assumed by the parties during and because of the marriage and the children. Consequently, the theoretical attachment to para (b) is not surprising.220

A further section 75(2)/90SF(3) factor that would seem likely to be raised reasonably often is the financial impact of re-partnering. This can be considered under section 75(2)(m)/90SF(3)(m): the financial circumstances of the cohabitation when either party is in a cohabiting relationship (that is, living together as husband and wife: Roberts v Roberts).221 The issue of re-partnering was, for example, unsuccessfully raised by the husband on appeal in the Full Court in DJ and AJ.222 The husband complained that since ‘the wife had for some years been in a relationship with a gentleman in Hobart, his Honour had then erred in failing to take into account the financial benefit to the wife of that relationship’.223 The Full Court agreed with the trial judge that section 75(2)(m) was not established as there was no cohabitation. There was no evidence after detailed cross-examination of the wife that the relationship was other than boyfriend–girlfriend.224 This approach would seem appropriate

220 221 222 223 224

Waters and Jurek [1995] FamCA 101, [26]–[33] (Fogarty J). Roberts v Roberts (1977) Fam LN 59. DJ and AJ [2006] FamCA 961 (Bryant CJ, Finn and Coleman JJ). ibid., [58]. ibid., [58]. Other cases to consider the relevance of re-partnering to s 79 orders include In the Marriage of Crawford (1979) 5 Fam LR 106 (where the Court took a generous approach to the wife—i.e., re-partnering was not viewed as having a significant effect on property entitlement) and Z and G (1982) 8 Fam LR 193 (where the majority of the Court seemed to take the opposite view). In P & W [2005] FamCA 1303, [51], Warnick J reviewed the cases and concluded that was ‘necessary to go beyond merely a statement of the financial circumstances of the person with whom the party is cohabiting, to give some consideration to the manner and extent of any potential for benefit to the party’.

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given the variable extent to which new partners may be relied upon for financial support, and the high rate of breakdown of subsequent relationships.225

13.6.1.3  The section 75(2)/90SF(3) factors are not limited to the parties’ future needs The section 75(2)/90SF(3) factors are sometimes referred to in a shorthand way as ‘future needs’ factors, but in reality are not limited to the future needs of the parties, extending, for example, to the consideration of the parties’ income, property and financial resources (section 75(2)(b)/90SF(3)(b)). As a result, section 75(2)/90SF(3) adjustments may be made on a compensatory basis, rather than just on the narrower basis of a need being established. The Full Court’s decision in Waters and Jurek226 underlined that, in the context of property proceedings under section 79, the section 75(2) factors are not limited to making adjustments on the basis of need in the same way as in the spousal maintenance context (which requires a threshold of the applicant’s inability to support herself adequately and the respondent’s capacity to pay: Chapter 15). Rather, the fact of a disparity in the earning capacity of the parties may be enough, in the context of section 79 proceedings, to warrant a further adjustment on the basis of section 75(2). Thus in Waters and Jurek the Court concluded that the trial judge’s order for a further adjustment of $50,000 in the wife’s favour on the basis of the income disparity between the parties at the end of their 22-year marriage was not an unreasonable exercise of discretion. This was even though both parties were both employed as professional psychiatrists on high incomes—although the husband’s income was significantly higher than the wife’s. While the cause of the income disparity was not entirely clear, the wife was said to have had the main caregiving role for the couple’s child during her infancy. A compensatory element thus appeared evident. As noted earlier, this compensatory aspect appears less evident in recent Full Court cases involving shared time.

13.6.1.4  Relevance of a partnership approach to section 75(2)/90SF(3) adjustments In the 1990s, the notion of marriage as a social and economic partnership was often used to underpin or justify more generous section 75(2) adjustments. Justice Fogarty’s judgment in Waters and Jurek provides an example:227 In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party, which were recognised until separation, and which largely determined or influenced the personal development of that party and the 225 For example, ABS data indicate that second marriages are slightly more likely to fail than first marriages: ABS, 4102.0—Australian Social Trends, 1999, ‘Family Formation: Remarriage Trends of Divorced People’, . 226 Waters and Jurek (1995) [1995] FamCA 101. 227 See also Kennon [1997] FamCA 27; (1997) 22 Fam LR 1.

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arrangements between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home—in circumstances where it was the joint decision of the parties that that be the way in which they would conduct their affairs, and where that decision was made in the expectation of the relationship continuing.228

This articulation, however, raises questions regarding the position when traditional gender roles are not adopted and/or where no mutual decision, choice, or intention is evident. The facts and outcome of Waters v Jurek, just discussed, suggest that a ‘partnership’ approach may nevertheless have been applied to justify an adjustment on the basis of the section 75(2) factors. It appears less likely that this would happen now, in the wake of superannuation splitting, the shared parenting amendments and Stanford. Justice Fogarty’s ‘partnership’ approach in Waters and Jurek raises a further question regarding the section 75(2)/90SF(3) factors: to what extent will ‘any deficit, such as illhealth, unemployment, etcetera … be given full effect within s 75(2) even if it arose from factors which are unconnected to the marriage, and may have occurred long after the marriage ceased’?229 This question remains unresolved,230 although both Fogarty J in Waters and Jurek231 and the majority of the Full Court in Kennon232 expressed concern about the court becoming involved in ‘social engineering’.233 Consistent with this, in Farmer and Bramley,234 Guest J would have required the establishment of a nexus, in the context of the section 75(2) factors, between the post-separation circumstances of the parties and the circumstances of the marriage, a view with which Kay J disagreed. In Polonius & York, however, the Full Court noted that ‘[t]he dissenting judgment of Guest J has been the subject of considerable discussion and comment’235 and observed that a consequence of adopting Guest J’s approach may be that, in effect, an asset-by-asset approach would apply when considering the matters in section 75(2)(b)/90SF(3)(b). While noting that the issue was ‘not extensively argued before us’236 the Full Court did not agree with this approach, with the result that Polonius is likely to discourage arguments based on the nexus requirement in this context.237 Uncertainty regarding the degree to which it is appropriate to use property division as a mechanism for redressing needs arising independently of 228 Waters and Jurek [1995] FamCA 101, [57]. 229 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 23 (Fogarty and Lindenmayer J). 230 For a recent case example, see Wollacott & Wollacott [2014] FamCA 5(Loughnan J) in which the parties agreed that a s 75(2) adjustment in addition to spousal maintenance should be made in the wife’s favour due to a ‘disastrous’ workplace injury during their relationship which left her unable to work and in receipt of modest workers’ compensation payments. The court made a s 75(2) adjustment of 10%, taking into account that the husband was 10 years younger than the wife and had a substantial earning capacity but supported his current wife and her children. See also Patrick Parkinson, ‘Applying the s 75(2) Factors to the Division of Family Property: A Principled Approach’ (2014) 4 Family Law Review 77. 231 Waters and Jurek [1995] FamCA 101. 232 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1. 233 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 23 (Fogarty and Lindenmayer J). 234 Farmer and Bramley (2000) 27 Fam LR 315. 235 Polonius & York [2010] FamCAFC 228, [116] (Boland, Thackray and O’Ryan JJ), citing commentary including Anthony Dickey, ‘Financial Relief and Nexus with Marriage’ (2002) 76 Australian Law Journal 287. 236 Polonius & York [2010] FamCAFC 228, [117]. 237 More recently, to similar effect, see Marsh [2014] FamCAFC 24 (Ainslie-Wallace, Murphy and Le Poer Trench JJ), particularly Murphy J [104].

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the relationship underlines a lack of general clarity regarding how far the liabilities and obligations of married and de facto partnerships extend.

13.6.1.5  The court’s approach to applying the section 75(2)/90SF(3) factors More generally, there has been some debate about the preferred approach for considering section 79(4)(d)–(g) matters—that is, whether an ‘asset-by-asset’ or ‘global’ approach to the property pool should be taken when considering the additional factors. In T & T,238 Watts J concluded that the better view, at least in the case before him, was that adjustments on the basis of the additional factors ‘can more conveniently be made by looking at all of the net property and superannuation together’239 (that is, a ‘global’ approach). The Full Court’s decision in Polonius & York240 supports this approach. Yet the Court’s observation that an asset-by-asset approach in effect imposes a nexus requirement raises a broader question regarding the ongoing application of the asset-by-asset approach (13.5.1.1). In other words, there seems to be an inconsistency between the continuing application of an asset-by-asset approach to contributions assessment and movement away from a nexus requirement in both the contributions and section 75(2) contexts. The Full Court has also held that when considering the section 75(2)/90SF(3) factors, it is only necessary for the court to refer to factors of particular relevance and analyse these.241 However, similar to contributions assessment, it can be difficult to work out exactly how the factors are being applied and weighted, partly due to overlap between them and partly due to the high level of discretion involved in the section 79/90SM process. For example, in Clauson242 the Court increased the adjustment on the basis of the section 75(2) factors in the wife’s favour from 15 per cent to 25 per cent, reasoning that: it appears to us that an assessment of 15% did not do justice to the legitimate claims of the wife or just and equitable consideration of those factors. There is nothing in his Honour’s reasons for judgment which point to particular error. His Honour approached the matter diligently. Whilst this court is reluctant to substitute its own view in relation to matters in respect of which there is no uniquely right answer, nevertheless the conclusion at which we have arrived, after careful reflection, is that the assessment here should be characterised as falling below a legitimate exercise of discretion.243

Similar to contributions assessment, Full Court has taken the view that the section 75(2)/90SF(3) factors should be considered not just individually, but also overall. In Tomasetti & Tomasetti,244 for example, the trial judge, Lawrie J, concluded that the parties’ contributions were respectively 60 per cent and 40 per cent, in the husband’s favour, due to T & T [Pension Splitting] [2006] FamCA 207 ibid. [211]. Polonius & York [2010] FamCAFC 228, [119]. In the Marriage of Collins (1990) 14 Fam LR 563, 567. Between: Frances Ann Clauson Appellant/Wife and Derek George Clauson Respondent/Husband [1995] FamCA 10; (1995) 18 Fam LR 693, 697 (Barblett DCJ, Fogarty and Mushin JJ) (Clauson). 243 ibid. 244 Tomasetti & Tomasetti [2000] FamCA 314 (Lindenmayer, Finn and Brown JJ). 238 239 240 241 242

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his $200,000 pre-marriage contribution, but then made a further adjustment of 40 per cent in the wife’s favour on the basis of the section 75 factors, being 25 per cent for the disparity in the parties’ financial resources (given the husband’s superannuation interest and earning capacity), and 15 per cent to take into account the wife’s ongoing care of the parties’ four children. The overall distribution of assets was thus 80 per cent to the wife and 20 per cent to the husband. The husband appealed on a number of grounds including the section 75(2) adjustment. The Full Court agreed that Lawrie J’s process of reasoning and the end result regarding the section 75(2) factors were flawed. Justice Lawrie had erred in listing the wife’s disadvantages for the future, which were all assigned a percentage figure, and then adding up these percentage figures to give the wife an extra 40 per cent. Rather, the trial judge should look at the overall picture once the separate factors have been considered. This would avoid any double counting and would help ensure that the cumulative process has not resulted in an outcome that is manifestly unjust. The Court re-exercised discretion, reducing the section 75(2) adjustment in the wife’s favour from 40 per cent to 30 per cent.245 Ultimately in Tomasetti, it seemed that the Full Court had difficulty with the idea of giving 40 per cent to the wife on the basis of the section 75(2) factors. Despite the vagueness surrounding how adjustments are calculated, there seems to be a ‘standard’ or conventional amount that is generally expected for this part of the process, with adjustments in the 1990s rarely exceeding 30 per cent and since the 2000s (following superannuation splitting reform and the 2006 shared parenting amendments) rarely exceeding 15 per cent, with the exception of small pools (where adjustments may be higher). The Full Court has also made clear that ‘[section 75(2)/90SF(3)] adjustment must be considered in the light of the quantum of the contribution entitlements of the parties’246 and is also relevant to the court’s determination of whether the outcome would be just and equitable (13.7): [The s 75(2)] exercise is not done in isolation; it is done against the background of conclusions already arrived at on contributions, the consequence of which will be in some cases to intrude into the s.75(2) exercise because of the dimension of the former conclusion and the total pool. It is largely for that reason that it is ultimately necessary to stand back from the process and reach a conclusion which appears overall to be a just and equitable exercise of the discretion.247

Given the relevance of a section 75(2) adjustment to determination of whether the outcome is just and equitable, courts commonly allocate a dollar value as well as a percentage figure to the adjustment.248 In high asset cases, the court is likely to conclude that as the dollar value of the contributions assessment is more than enough for the wife to live on comfortably no further adjustment is required, despite marked disparities in the parties’ circumstances. As a result, even in the 1990s it was less usual in high asset cases to see an adjustment being made on the basis of the section 75(2) factors. JEL and DDF249 provides 245 ibid., [109]–[115]. 246 In the Marriage of Brown (2005) 33 Fam LR 377, [77] (Kay, May and Boland JJ); Willis & Willis [2007] FamCA 818, [50] (Warnick, May, Stevenson JJ). 247 Clauson [1995] FamCA 10; (1995) 18 Fam LR 693, 711. 248 For example, Wynona & Friend [2011] FamCAFC 6. 249 JEL and DDF [2000] FamCA 1353.

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one example of this: although the Full Court, after awarding the wife 27.5 per cent of the parties’ property on the basis of contributions, concluded that although the husband’s earning capacity was far greater than that of the homemaker wife, ‘[g]iven the large amount of capital available, we are not persuaded in the context of this case that a differential earning capacity ought to result in any adjustment’.250 Similarly in Ferraro251 the trial judge made no adjustment on the basis of the section 75(2) factors and this was not challenged on appeal. An exception to this approach has been high asset cases where the nexus between the wife’s contribution and the property is weaker, and so the court utilises the section 75(2) factors to give the wife a more generous outcome. Figgins & Figgins (Figgins)252 and Farmer and Bramley253 are examples of this. In Figgins, for example, where the relationship was short and the property comprised the husband’s inheritance worth $22.5 million, the Full Court awarded the wife $600,000 for contributions, and a further $1.9 million on the basis of section 75(2). The notion that it is adequate to meet something more than the wife’s needs and then give the rest to the husband was the subject of criticism in Figgins.254 However, the decision of the Full Court in Wynona & Friend 255 (13.6.1.1) illustrates that use of dollar value to restrict the operation of section 75(2)/90SF(3) can be applied more generally, including in modest asset cases. In that case, the Court held that the trial judge erred in making a section 75(2) adjustment of 10 per cent in the wife’s favour without considering whether the resulting differential between the parties’ entitlements was a just and equitable outcome and reduced the adjustment to five per cent.

13.6.2  additional matters In addition to the section 75(2)/90SF(3) factors, section 79/90SM provides that the court must take into account a number of other matters of a prospective nature. These are the effect of any proposed order on the earning capacity of either party to the marriage (section 79(4)(d)/90SM(4)(d)), any other order made under the FLA affecting a party to the marriage or a child of the marriage (section 79(4)(f )/90SM(4)(f )), and the child support liability of a party to a marriage for a child of that marriage (section 79(4)(g)/ 90SM(4)(g)). Section 79(4)(d)/90SM(4)(d) has particular relevance in cases where section 79/90SM orders may require a sale of income-producing property (such as a farm or other business) which in turn will have an impact on the earning capacity of the owner party. The section does not prevent the court from ordering a sale; the court need only consider the impact of that event on the owner party’s capacity to earn an income. In practical terms, however, the court will avoid making a section 79/90SM order affecting a party’s income earning capacity where there is an alternative available (for example, payment of the order by the

250 ibid., [178] (per Holden and Guest JJ, Kay JJ agreeing). An extra $200,000 was awarded to the wife, however, to reflect the significant taxation benefits available to the husband. 251 Ferraro [1992] FamCA 64. 252 Figgins & Figgins [2002] FamCA 688 (Nicholson CJ, Ellis and Buckley JJ) (Figgins). 253 Farmer and Bramley [2000] FamCA 1615 (Finn, Kay and Guest JJ). 254 Figgins [2002] FamCA 688, [89]–[100] (Nicholson CJ and Buckley J). 255 Wynona & Friend [2011] FamCAFC 6.

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owner party in instalments, postponing payment, or making orders for continuing spousal maintenance).256 An area of particular sensitivity is the family farm.257 Farms are often inherited by one of the parties to the marriage (raising issues of pre-marriage contribution) and comprise both the family home and the business (which, unless there is substantial other property, means that orders redistributing interests in property will have an impact on the farm). Conversely, the apparent reluctance of courts to order the sale of a farm can result in injustice, especially for parties (usually women) who marry into farming families, contribute as best they can to life on the farm, and then risk not receiving a just and equitable share. These points were underlined by AIFS empirical research in the 1980s on the economic consequences of divorce, although admittedly the group describing farms was very small:258 of the 825 respondents, family farms where the wife had no ownership were described by nine respondents, including two couples, translating to seven cases. In six of these seven cases, the farm (which included the matrimonial home) was retained by the husband. There was a cash transfer to the wife that was small relative to the value of the farm, and so could in most cases be paid without the farm being sold. Husbands, however, complained that because the farms belonged to them their wives had received too great a share. In contrast, wives were satisfied with the small share they received: Women … often emphasised their relief that their marriages had ended and  that they were relatively satisfied with what they had got. Given the somewhat  vulnerable  position of these women—they had no house and no job other than farmer’s  wife—their satisfaction could only be explained by noneconomic  considerations. Discussion of  the wife’s share in these cases revolved around the extent of her contribution  to  the  farm. No mention was made either by men or women of recompense being given to the wife for her reduced earning capacity.259

The pattern differed considerably in cases involving jointly owned farms, although once again the numbers were small: nine respondents, including two couples, described jointly owned farms. In four out of seven of these cases, the farm was sold and the proceeds divided (we are not told in what proportions but something approximating equality of division seems to be implied). In the three remaining cases the farm was retained but in most cases the wife received a cash transfer of about 40 per cent of all the property—that is, a much higher proportion than in cases where the wife did not have a share of ownership. Farms in the jointly owned category were usually less valuable than farms owned just by husbands, were less likely to have been owned before marriage, and involved women working on the farm in a much more intensive way.260 256 In the Marriage of CP and TL Lee Steere (1985) 10 Fam LR 431. 257 More recent Full Court decisions are Cross & Beaumont [2007] FamCA 123 (Kay, Boland and Benjamin JJ); Cromwell and Cromwell [2006] FamCA 1454 (Kay, Warnick and May JJ); Gould & Gould [2010] FamCAFC 197 (Boland, Thackray and Crisford JJ). 258 Peter McDonald, ‘The Allocation of Businesses’, in Peter McDonald (ed.), Settling Up: Property and Income Distribution on Divorce in Australia, Australian Institute of Family Studies and Prentice Hall, Sydney, 1986, pp 211–3. 259 ibid., p 212. 260 ibid., p 213.

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13.7  Is the result just and equitable? Pre-Stanford, at the end of the section 79/90SM process the court reviewed the orders it proposed to make and considered whether, pursuant to section 79(2), it was just and equitable to make the order. It is appropriate that this approach should continue, given that the just and equitable requirement is one ‘permeating the entire process’,261 and that section 79(2)/90SM(3) refers both to the making of an order and the order: ‘The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’. The extent to which section 79(2)/90SM(3) provides a basis for changing the substance of orders, which are determined on the basis of the matters set out in section 79(4)/90SM(4), is unclear on the face of the FLA. Of assistance is the decision of the Full Court in Manolis & Manolis (No 2) (Manolis),262 which underlines that scope for varying the substance (versus the impact) of the outcome reached as a result of section 79(4)/90SM assessment is limited. At first instance, the Federal Magistrate had made an initial assessment that the parties’ contributions were equal, made no further adjustment for the additional factors and then at the end of the process revisited the contributions assessment and awarded the husband an extra five per cent for his initial contribution. The Full Court, allowing the appeal, considered that while the power to make property orders is not exhausted after consideration of the additional factors, the federal magistrate’s ‘scope for varying the substance of the outcome’ resulting from consideration of the matter set out in section 79(4)/90SM ‘would have been limited’. 263 Rather, the just and equitable requirement at this stage of the process obliges the court to ‘“stand back” from its preliminary determination, and consider its impact. So doing may inform the terms of the orders appropriate to produce a just and equitable outcome in those terms’.264 However, the Full Court’s decision in SDM & JCM 265 underlines that judges must also ‘address the “just and equitable” “mix” of assets’. That is, the court must consider whether the proposed orders are just and equitable in terms of the current and future assets allocated to each party, meaning assets that can be enjoyed now (for example, the family home) and assets that will be enjoyed in the future or which will never be ‘liquid’ assets (that is, assets that can be sold quickly with little impact on their value) (superannuation interests, considered at 14.5, are a common example). In that case the trial judge did not follow this approach when considering the division of tangible assets and superannuation and the appeal was allowed partly for that reason. In summary, there is little capacity to alter the percentage share that each party will receive at this point, and the focus is on achieving a just and equitable outcome in terms of the property each party receives to make up their percentage shares. However, the allocation of ‘liquid’ assets may be tailored to reflect the ‘real’ (usually lesser) value of an ‘illiquid’ asset to the parties (that is, its economic significance independent of valuation), 261 262 263 264 265

Bevan [2013] FamCAFC 116, [86]. Manolis & Manolis (No 2) (Manolis) [2011] FamCAFC (Coleman, May and Ainslie-Wallace JJ). ibid., [66]. ibid., [66]. SDM & JCM [2006] FamCA 840, [28] (Warnick, May and Boland JJ).

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in the interests of achieving a just and equitable outcome. Often, though, this will not be easy to achieve. Take, for example, a case in which the parties (who have been married for 10 years) are both 40 years old, and the property pool comprises the husband’s superannuation savings (valued at $40,000) and the jointly owned family home (with equity of $60,000 once the mortgage is repaid). Assume that the court decides that the parties’ contributions are equal and makes an adjustment of 10 per cent in the wife’s favour on the basis of section 75(2) due to her continuing role as primary carer for their two children aged five and seven. If the resulting percentage split of 60 per cent to 40 per cent in the wife’s favour is achieved by the wife retaining the family home (becoming solely responsible for repayment of the mortgage) and the husband retaining his superannuation interest, will the outcome be ‘just and equitable’ especially given that the husband cannot access his superannuation until his retirement, which is many years away, while the wife will be left without superannuation savings but with a current asset that can be sold if necessary to provide for her later needs? It is unlikely that a court would order that all liquid assets be enjoyed by one party and all superannuation by the other.

13.8  Orders in section 79/90SM proceedings FLA section 80/90SS sets out the types of order the court may make under Part VIII, and so is relevant to both property and spousal/de facto partner maintenance orders (the latter are more specifically discussed in Chapter 15). The range of possible orders is broad and includes orders made by consent (12.4.2), interim orders, orders for lump sum or periodic payments, and orders for the transfer of an interest in property. Regarding property orders, section 79(1)/90SM(1) provides that ‘the court may make such order as it considers appropriate altering the interests of the parties in the property’, and so it has been held court’s powers extend beyond those listed in section 80/90SS.266 Other important options are declarations and injunctions. A further option available to the court is adjournment (section 79(5)/90SM(5)), although the applicant must establish that this course of action is reasonable due to a likely change and significant change in financial circumstances, such that an order made if that change occurs is more likely to do justice between the parties than an immediate order.267 Achieving finality is an important goal of section 79/90SM proceedings: ‘regard should be had to the fact that the usual order pursuant to section 79 is a once and for all order made after a final hearing’.268 When making section 79/90SM orders, the court must have regard to the ‘clean break’ principle, enshrined in FLA section 81/90ST, to the effect that as far as practicable the court must make orders that will finally determine the financial relationships between the parties and avoid further proceedings between them. The notion of a ‘clean break’ in financial matters is also reflected in the time limits for commencement of section 79/90SM proceedings (13.3).

266 In the Marriage of JT and ML Collins (1977) 3 Fam LR 11, 424, 434. 267 Pratt & Pratt [2012] FamCAFC 81. 268 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166, [132] (Boland, Thackray and O’RyanJJ) (Strahan).

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13.8.1  Interim orders Interim property orders are important in practice, often being sought early on in the dispute so that the applicant can pay (usually) her legal fees.269 The option of applying for interim property orders became more attractive following the Full Court’s 2009 decision in Strahan.270 Strahan involved long-running litigation in which the wife said the assets were in the hundreds of millions while the husband said there were assets of around $80 million. The wife sought interim property orders of $5 million, mainly to pay her legal fees, which she said were already about $10.5 million due to the husband’s failure to disclose his assets. She was awarded $1 million at first instance. The Full Court allowed her appeal and made orders for interim property settlement of $5 million. In doing so, the Court revisited the principles applicable to applications for interim property orders, making clear that an interim application involves two steps: (1) a procedural/threshold step, and (2) a substantive step. At step (1) it must be established that section 80(1)(h) was enlivened, the Court making clear that the overarching consideration is the interests of justice and that it was not necessary to illustrate compelling circumstances271 (as had been previously held by the Full Court).272 However, the Court also emphasised that a section 79 order is usually a ‘once and for all’ order made at a final hearing so at interim stage more was required than just establishing that on a final hearing the applicant would receive at least the property being sought from the other party.273 At step (2) the court must have regard to the usual matters in a section 79 order. A detailed inquiry is not required, but there must be some assessment of section 79 matters. As this is an imprecise exercise, the interim property order has to be ‘conservative’ so that the final property order will not be compromised by the interim property order.274 While Strahan has encouraged applications for interim property orders, its effects were pared back recently in Marchant & Marchant 275 in which the Full Court emphasised the ‘discretionary nature of the adjudication involved’ and the cautionary aspects of the earlier decision: We think it is important to highlight that whilst the discussion of the first question in the joint judgment in Strahan includes examples, including by reference to other cases, where the appropriateness criteria would be met, there was no attempt to define or exhaustively identify those circumstances or categories of cases meeting that criteria. That is understandable, given the discretionary nature of the adjudication involved and the wide range and variety of circumstances presented from case to case, so that any such attempt would likely prove to be futile. Nevertheless, the joint judgment in Strahan emphasised both the importance of the interests of justice normally being 269 The alternative approach of applying for litigation funding under FLA s 117 was discussed in Lovett & Xavier and Anor [2014] FamCA 49 (Thornton J). For a recent example of interim orders being sought in respect of a range of issues but not legal fees, see Kanelos & Kanelos [2014] FamCA 36 (Stevenson J). 270 Strahan [2009] FamCAFC 166. 271 ibid., [132] (Boland and O’Ryan JJ), [226] (Thackray J). 272 Between: Graeme John Harris Appellant/Husband and Anne Patricia Harris Respondent/Wife Appeal [1993] FamCA 49 (Nicholson CJ, Fogarty and Moore JJ). 273 Strahan [2009] FamCAFC 166, [138]–[139] (Boland and O’Ryan JJ), see also [224]–[225] (Thackray J). 274 ibid., [132]–[141] (Boland and O’Ryan JJ). 275 Marchant & Marchant [2012] FamCAFC 181 (May, Ainslie-Wallace and Kent JJ).

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served by a single and final determination of s 79 orders and that establishing only that the applicant’s ultimate entitlement would cover or exceed the interim claim was not sufficient, on its own, to establish that the application ought be entertained.276

13.8.2  Declarations and injunctions Our focus throughout this chapter has been on the court’s broad discretion under FLA section 79/90SM to make orders for the alteration of property interests of the parties, or either of them. In this section, we discuss two more general powers available to the court which will often be relevant in the section 79/90SM process.

13.8.2.1  FLA section 78/90SL: Declarations Section 78/90SL gives the court power to make a formal declaration of a party’s existing title or rights in property (that is, to declare existing interests on the basis of the ordinary principles of law and equity), along with power to make consequential orders to give effect to declarations (for example, regarding sale or possession of the property). In practice, the declarations power has not often been used—the weight of authority suggests that for a declaration to be made there must be a dispute between the parties regarding title or rights to property,277 and where this is the case the application is more likely to be made under section 79/90SM, which provides the court with the much broader discretionary power to alter interests in property including power to make a declaration in relation to property.278 However, the power to make declarations has sometimes been used when the court identifies the property available for division: if there is argument about the legal and equitable ownership of the property (including the interests of third parties), the court may need to make a finding about these issues, and formalise this by making a declaration, before going on to consider whether those interests should be altered under section 79/90SM. Parkinson suggests that, following Stanford, there might be greater scope for the making of declarations, on the basis that once existing legal and equitable interests are identified ‘it may be sufficient to make orders under section 78 for the sale or division of jointly-owned property. This will be so, for example, where the judge concludes that an equal division of the assets held in joint names will meet the justice and equity of the case’.279 So far it is not evident that this approach is being taken by family law courts.

13.8.2.2  FLA section 114: Injunctions Wide powers to grant injunctions are provided to courts under FLA section 114, including the power to make injunctions in relation to the property of a party to a marriage or de facto relationship (section 114(1)(e)/114(2A)(c)), or regarding the use or occupancy of the family home (section 114(1)(f )/114(2A)(a)), or as a remedy ancillary to other substantive proceedings (section 114(3)) (see 5.8 in relation to personal protection). An application 276 277 278 279

ibid., [26] (May, Ainslie-Wallace and Kent JJ). Lanceley and Lanceley [1994] FamCA 94. FLA s 80; Hickey [2003] FamCA 395. Parkinson, above n 41, p 84.

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for an injunction must be between parties to a marriage or de facto relationship and, respectively, in relation to matters arising out of the marital relationship or the breakdown of the de facto relationship (13.2.4.1). In relation to unmarried partners, the Full Court’s 2014 decision in Norton & Locke280 underlines that the court’s power to grant injunctions pursuant to section 114(2A) can only be granted ‘in a de facto financial cause’ and therefore requires that a de facto relationship be established (4.2.1). The Court set aside interlocutory injunctions made by Judge Scarlett preventing the appellant from interfering with the respondent’s continued exclusive occupancy of the appellant’s home unit and from selling the unit. Judge Scarlett also made orders for the appellant to pay a number of outgoings for the unit, extending to mortgage payments. The Full Court held that, as it had not been established that the parties were not in a de facto relationship, Judge Scarlett lacked jurisdiction to grant the injunctions made in reliance upon section 114(2A) and that the circumstances were not sufficiently compelling to require an interlocutory injunction while jurisdiction was established. Regarding section 114(1)(f ), the HCA held in Mullane v Mullane281 that an injunction allowing one spouse sole occupation of the matrimonial home does not alter property interests and thus does not prevent a section 79 application being made (the position being that section 79/SM orders can only be made once and are final, unless set aside on appeal or under section 79A/90SN(1)). The section 114(1)(e)/114(2A)(c) power to make an injunction in relation to property of a party to a marriage or de facto relationship will often be used to prevent that party from disposing of property and spending the proceeds of sale before section 79/90SM proceedings occur. In R v Dovey; Ex Parte Ross, for example, the wife was granted an injunction to prevent her husband using his voting rights in a family company he controlled to sell the matrimonial home, which was owned by the company.282 Some overlap exists between section 114(1)(e)/114(2A)(c) and the court’s power under FLA section 106B (previously section 85) to make orders setting aside or restraining the making of instruments or dispositions that are intended to defeat, or likely to defeat, existing or anticipated FLA orders (14.2). It is likely in both cases that orders will have an impact on third parties. The current position in this regard is that section 106B has been interpreted more generously than section 114, and so is more likely to be utilised.

13.9  After orders are made The Full Court has emphasised that after an order has been made under section 79/90SM the power of the court to make a further order is exhausted (Strahan283 (13.8.2) is an example). The order can only be varied or set aside as a result of a successful appeal or under section 79A. These two options are now considered. 280 281 282 283

Norton & Locke [2013] FamCAFC 202 (Bryant CJ, Murphy and Benjamin JJ). Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4. R v Dovey; Ex Parte Ross (1979) 141 CLR 526; [1979] HCA 14. Strahan [2009] FamCAFC 166. Subsequent Full Court cases include Panshin & Farmer [2012] FamCAFC 197; Marchant & Marchant [2012] FamCAFC 181; Levy & Prain [2012] FamCAFC 92.

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13.9.1  Appealing a section 79 order The grounds on which an appeal from an exercise of discretion can be made were discussed at 8.5.1. In practical terms, when a trial judge has not made an obvious error of fact or law and has given adequate reasons for their decision it will be difficult to successfully appeal the resulting exercise of discretion. Courts have emphasised that, as the power to make section 79/90SM orders is discretionary, ‘assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’284 and the fact that the appeal court’s opinion differs from that of the trial judge is not of itself enough to warrant appellate interference.285 However, where opinions differ it may be more likely that an error will be found.

13.9.2  Section 79A/90SN(1) Section 79A(1)/90SN(1) sets out limited grounds on which property orders may be varied or set aside286 on the application of the parties, and also by third parties affected by the orders. It allows a section 79/90SN order to be set aside or varied on the grounds of: • a miscarriage of justice (namely, fraud, duress, the giving of false evidence, the suppression of evidence, and ‘any other circumstance’ (section 79A(1)(a)/ 90SN(1)(a)); • other specific difficulties or hardships (including the impracticability of carrying out the order (section 79A(1)(b)/90SN(1)(b)), or changed circumstances of an exceptional nature relating to the care, welfare or development of a child of the marriage resulting in hardship for the applicant (section 79A(1)(c)/90SN(1)(c)). Even if a ground under section 79A(1)/90SN(1) is established, the court has an overarching discretion whether or not to vary or set aside the order.287 The Full Court has emphasised that the establishment of a miscarriage of justice does not automatically mean that orders will be varied or set aside,288 and that the section 79A/90SN discretion should not be exercised lightly:289

284 Norbis [1986] HCA 17, [4] (Mason and Deane JJ); (1986) 161 CLR 513, 540. 285 ibid., [5] (Mason and Deane JJ); (1986) 161 CLR 513, 540. 286 Section 79A(1A) provides that ‘[a] court may, on application by a person affected by an order made by a court under s 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under s 79 in substitution for the order so set aside’. The difference between varying and setting aside orders is not clear (although the practical repercussions—e.g., regarding stamp duty, CGT, Centrelink and child support) and if there is a difference, it is unclear whether 79(2) applies to an order that is varied. The better view is that ‘make another order under s 79’; s 79A(1A) should be read to extend to varying an order. Following Stanford a court might do this to cover off against s 79(2) challenge: email from Richard Ingleby to Belinda Fehlberg, 2 April 2014. 287 In In the Marriage of Patching, the Full Court described the court’s approach under s 79A as comprising four steps: whether there was a suppression of evidence or other circumstance, whether that amount to a miscarriage of justice, whether the court in its discretion should vary or set aside the order, and whether another order should be made: (1995) 18 Fam LR 675, 677 (Patching). 288 ibid., 677, referring to In the Marriage Of: Eleni (Aka Helen) Prowse Appellant/Wife and Geoffrey John Prowse Respondent/Husband [1994] FamCA 150, and In the Matter Of: Donald Vincent Morrison Appellant/Husband and Pamela Marlene Morrison Respondent/Wife Appeal [1994] FamCA 153. 289 Patching (1995) 18 Fam LR 675.

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As is well-known, s 79A of the Act is not a provision which is intended to, or operates as an avenue of redress for a party who has, or believes he or she has, in the light of subsequent events, made a bad bargain.290

As discussed at 12.4.2, section 79A/90SN applications are often to set aside consent orders. The application of section 79A/90SN is particularly interesting in the context of consent orders, given the court’s lesser involvement and the potential that exists for unfair outcomes due to inequality of bargaining power. For example in the consent order context, the Full Court recently concluded in Whistler & Whistler291 that there had been a ‘miscarriage of justice’ due to ‘any other circumstance’ (section 79A(1)(a)/90SN(1)(a)). The Full Court inferred from the evidence before it that the parties had agreed for a final instalment payment be made by the husband to the wife five years after the first payment, that consent orders providing for the payment to be made within eight years after the orders were made due to an error on the part of the wife’s barrister, and the husband had been aware of the error but had not informed the wife, thus allowing the consent orders to be made reflecting the error and taking advantage of her mistaken belief.292 The Full Court varied the consent orders to make clear that the final payment was due five years after the first payment.293 Also of note, particularly following the 2006 shared parenting amendments, is FLA section 79A(1)(d)/90SN(1)(d) (exceptional circumstances arising since the making of the order relating to the care, welfare or development of the child and resulting in financial hardship). The cases show (1) that a change in children’s living arrangements must be unexpected and (2) that financial hardship has resulted in order for the ground to be satisfied. The cases also indicate that these requirements are not easy to satisfy.294 In Simpson and Hamlin,295 for example, the parties filed consent orders in relation to their property settlement. Nine days later, the two children of the marriage, who had been living with the husband, were returned to the wife at the husband’s request due to his financial commitments and this change in living arrangements became permanent. The wife applied under section 79A to set aside the consent orders for property and to obtain new orders and was successful at first instance before Lambert J. On appeal by the husband, the Full Court considered that ‘exceptional circumstances’ for section 79A(1)(d) had been established but cautioned that: The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec. 79 of the Family Law Act could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage Wernham & Campagnola [2012] FamCAFC 137, [23] (Coleman J, Ryan J and Ainslie-Wallace J agreeing). Whistler & Whistler [2012] FamCAFC 97 (May, Ainslie-Wallace and Murphy JJ). ibid., [97]–[101]. For a recent case in which consent orders were not set aside, see Irving & Irving [2013] FamCA 962 (Foster J). The fact that the husband had been legally represented throughout protracted negotiations before the consent orders were made was influential. 294 Two particularly important cases covering these points are In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040 (Simpson and Hamlin) and Sandrk (1991) 15 Fam LR 197. More recently see Garden & Gavin (No. 2) [2010] FamCAFC 125 (Faulks DCJ, May and Benjamin JJ). 295 Simpson and Hamlin (1984) 9 Fam LR 1040. 290 291 292 293

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often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable having regard to the children’s welfare that such a change occurs.296

However, the husband’s appeal was successful because Lambert J’s finding that the wife would suffer hardship if the order were not changed was based on an assumption that the consent order reflected the husband’s responsibility for the care of the children in the future, when on the facts there was no basis for that assumption. The Full Court also held that Lambert J had erred in varying the consent order without first considering whether any inequity could only be rectified in another way, such as by the payment of maintenance. In Sandrk and Sandrk,297 the father made an application under section 79A when the two children of the marriage, boys aged seven and 12, changed residence from their mother to their father within four months after consent orders were made for alteration of property interests. The children ‘voted of their own initiative and of their own feet’, changing residence solely at their own request and not as a result of any action by either party.298 As a result, Gee J found an ‘exceptional circumstance’ (as well as hardship, given that the husband was on worker’s compensation and had increased expenses, and the wife was unable to pay maintenance).

13.9.3  Enforcement of financial orders FLA Part XIIIA contains sanctions for failure to comply with financial orders, including section 79/90SM orders. In particular, there are various sanctions for failure to comply with orders without reasonable excuse, including a bond, a fine, and imprisonment (section 112AD; see also section 112AE). A community service order may also be imposed (sections 112AG, 112AN). In practice, however, the family law courts are generally reluctant to punish people who breach FLA orders. An applicant (who needs to go to the cost and trouble of returning to court to utilise the sanction process) will usually be more interested in enforcing an order in their favour than in punishing their ex-spouse or partner for failing to comply with that order. The enforcement processes for financial orders and obligations set out in Chapter 20 of the Family Law Rules 2004; Division 25B.2 of the Federal Circuit Court Rules 2001 are thus likely to be of more practical assistance. The range of enforcement options available to the court is broad. For example, in relation to the enforcement of an obligation to pay money, rule 20.05 of the Family Law Rules and rule 25B.11 of the Federal Circuit Court Rules provide for four methods of enforcement: an order for seizure and sale 296 ibid., 1045 (Emery SJ, Baker and Nygh JJ). The husband’s appeal was successful because the finding that the wife would suffer hardship if the order were not changed was based on an assumption that the consent order reflected the husband’s responsibility for the care of the children in the future when there was no basis for that assumption. Also, the trial judge erred in varying the order without first considering whether any inequity could only be rectified in another way, such as by the payment of maintenance. 297 Sandrk and Sandrk (1991) 15 Fam LR 197 (Gee J). 298 ibid., 203.

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of real or personal property, an order for the attachment of earnings and debts, an order for sequestration of property, and an order appointing a receiver. Enforcement of orders where property is outside Australia is discussed at 3.4.2.

13.10  Conclusion Our consideration in this chapter of the legal framework for determining FLA property disputes has indicated the breadth of discretion available to courts determining disputes under section 79/90SM. Following the HCoA’s decision in Stanford there is a continuing and possibly increasing role for discretion, given that views will differ regarding what is ‘just and equitable’. Continuing lack of conceptual clarity and coherence surrounding this question is reflective of the range of circumstances to be addressed by family property law but also of a broader lack of social consensus on whether, and if so when, and if so the extent to which, intimate couple relationships are partnerships. At first glance, Stanford appears more consistent with an individualistic approach than a partnership approach. In essence, the decision suggests that family law courts must not assume that it is just and equitable to make an order departing from existing legal and equitable interests in property, indicates the increased relevance of any agreement during the relationship between the parties regarding their financial arrangements (12.4), and warns that no assumptions are to be made that one party has a right to an interest in the other’s property. In the end the ‘real effect of it all is to enable the party with more legal and equitable interests to have more arguments against adjustment’.299 These patterns are more (although not always) likely to serve the interests of men, given women’s generally greater economic disadvantage after relationship breakdown. However, Stanford’s unusual facts encourage caution when generalising about the wider impact, and the case confirms more than it contains the breadth of judicial discretion in relation to FLA property disputes.

299 Email from Richard Ingleby to Belinda Fehlberg, 17 February 2014.

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14

Specific Property Issues in Property Disputes 14.1 Introduction 548 14.2 Allocating responsibility for financial losses and liabilities  549 14.2.1 Third party interests and section 79/90SM proceedings  549 14.2.2 Apportioning liabilities and losses  553 14.2.3 Bankruptcy 558 14.2.3.1 FLA proceedings after bankruptcy occurs  558 14.2.3.2 Transactions entered before bankruptcy occurs  560 14.3 Initial and post-separation contributions  563 14.3.1 Initial contributions  564 14.3.2 Post-separation contributions  565 14.4 Breadwinner contributions in high asset cases  567 14.4.1 The doctrine of ‘special skills’  567 14.4.2 Retreat? 570 14.5 Superannuation 573 14.5.1 Increasing significance of superannuation as a relationship asset  573 14.5.2 The 2002 superannuation reforms  574 14.5.3 Valuation 578 14.5.4 To what extent is superannuation being ‘treated as property’?  581 14.6 Relevance of family violence to property outcomes  585 14.7 Financial agreements: Not so binding?  592 14.7.1 Undermining policy goals?  594 14.7.2 Section 90G/90UJ: Strict compliance, further legislation and more problems 595 14.7.3 Section 90K/90UM: More ways of avoiding agreements  600 14.8 Conclusion 603

14.1  Introduction In this chapter, we identify and discuss several specific and current issues often arising in Family Law Act 1975 (Cth) FLA section 79/90SM property cases.

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As in Chapter 13, our analysis demonstrates the breadth of discretion under section 79/90SM. However, we suggest that recent Full Court cases, particularly following Stanford,1 show increased caution regarding approaches that risk pre-determining outcomes, and increased preference for an approach that focuses contextually on the circumstances of the case. The inquiry that is encouraged need not prevent the influence of partnership and individualistic approaches (Chapter 13) but in the absence of labels or signposts such approaches may be less easy to identify. Our analysis throughout this chapter suggests that when making property settlement orders, recognising ‘good’ behaviour has generally been less problematic for family law courts than penalising ‘bad’ behaviour. This is consistent with the ‘no fault’ philosophy, which, although in legislative terms is only relevant to divorce (4.2.4), has permeated interpretation of the FLA. The consequence of this in the property context is that large asset pools have been shared less equally than debts, commonly to the cost of women and illustrating the variable and contextual way in which both partnership and individualistic approaches can be applied.

14.2  Allocating responsibility for financial losses and liabilities Allocating responsibility for financial losses and liabilities on relationship breakdown has been an issue of ongoing importance in FLA property proceedings, and has had particular significance in recent years following the Global Financial Crisis and economic downturn. At the end of a relationship, debts and other financial losses may be significant or greater than the asset pool and, even if they are not, one party (commonly the wife or female de facto partner) may consider that her responsibility for debt or financial loss is less than that of her ex-partner. Cases involving financial losses fall into two broad (and potentially overlapping) categories: (1) cases involving the interests of third parties and (2) cases in which assets have been dissipated (used, lost or wasted) by a spouse or de facto partner. In this section, we provide an overview of the courts’ broad approach to dealing with liabilities and losses, beginning with a brief discussion of the position of third parties in FLA property proceedings to provide essential context. Our analysis demonstrates the generally protective approach to third party interests in FLA property proceedings along with a starting point that debts and losses will be shared on relationship breakdown, but also several ways in which these broad approaches may be modified.

14.2.1 Third party interests and section 79/90SM proceedings Because the Commonwealth Parliament’s legislative power revolves around marriage and divorce and the breakdown of de facto relationships (Chapter 2), questions arise regarding the extent to which third parties can be affected by laws enacted pursuant to those legislative powers, and by court orders made pursuant to FLA section 79/90SM property 1 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 (Stanford).

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jurisdiction conferred by those laws. These effects may be positive2 or negative3 for third parties. In particular, the family law courts’ usual approach of deducting liabilities from assets even in the case of unsecured debts (see 14.2.2) will have a positive effect for creditors. Greater concern has surrounded laws and orders that have a negative impact on third parties (reflected, for example, in several procedural requirements directed at protecting them).4 Very often, a third party will have an interest in property that is the subject of FLA section 79/90SM proceedings. The third party may have a close relationship with one or both parties (for example, a relative, a business colleague, a family company or a close associate who is the trustee of a family trust) or may have a commercial or arms-length relationship with them (for example, a bank making a housing loan to the couple, a trade creditor, the Commissioner of Taxation, or the Trustee in Bankruptcy). Companies and discretionary trusts feature particularly strongly in the case law, as they are often used by families, or family members, as vehicles for business, investment, tax planning, and income distribution to family members. As a result, property of substantial value may be owned by a company or held on trust, rather than being in the individual hands of parties to a marriage. An important question is whether that property can be regarded as the property of one of the parties to the marriage or de facto relationship so that FLA 2 For example, can the court make orders in favour of children of a marriage, in property proceedings between their parents? See Dougherty v Dougherty (1987) 163 CLR 278; [1987] HCA 33, in which an adult son intervened in FLA s 79 property proceedings between his parents. The son had worked on two farms owned by his parents for virtually no wages but on the understanding that one of the farms would eventually be transferred to him. The High Court of Australia (HCoA) held that the son was entitled to make his application in, and to be heard by, the Family Court of Australia (FCoA). The HCoA also held that to be a ‘matrimonial cause’ in relation to which the FCoA had jurisdiction, proceedings for a transfer of property to a child of a marriage must arise out of the marital relationship (consistent with the definition of ‘matrimonial cause’ in FLA s 4(1)(ca)(i), which in turn reflects the limits of the marriage power as interpreted by the HCoA—2.3.2). Such situations would be exceptional—a law is not a law with respect to marriage just because it involves parents and their child. The Court gave as an example of a requisite connection with the marriage, proceedings by a child for orders for a transfer of property to satisfy a parental obligation. In contrast, any contribution that the child had made to the property of the child’s parents was not of itself enough to establish jurisdiction. This test is likely to be difficult to apply in practice. It is also unfortunate that the HCoA did not consider the divorce and matrimonial causes power as providing a potential basis for the validity of such orders. 3 The power of family law courts to make orders that adversely affect third parties is also important to prevent property orders from being readily undermined: in other words, to protect against the risk that a party may dispose of property in order to avoid it being affected by FLA property settlement orders. This concern was at the heart of Between: Narelle Gould; Wah Dak Services Limited and Cheung Wah Bank Limited Appellants and Vanda Russell Gould and Swire Investments Limited Respondents Appeals [1993] FamCA 126 (Gould), which involved a constitutional challenge to s 85 (now s 106B) of the FLA. In essence, s 106B allows the court to set aside or restrain the making of instruments and dispositions that are intended or are likely to defeat an existing or anticipated order in the proceedings. The effect of s 106B is usually to impact on a third party to whom property has been transferred. See, e.g., Stephens & Stephens and Anor (Enforcement) [2009] FamCAFC 240 (May, Boland and O’Ryan JJ). 4 For example, the ability of third parties to intervene (FLA s 92); the duty of the court not to make a property order unless satisfied that in all the circumstances it is just and equitable to make the order (s 79(2)); disclosure obligations on parties to s 79/90SM proceedings regarding their financial circumstances (13.3.2); the ability of third parties who have not had notice of s 79/90SM proceedings and whose interests are affected by orders made to challenge those orders on the basis that there has been a ‘miscarriage of justice’ (s 79A(1)(a)/90SM(1)(a): Trustee for the Bankrupt Estate of N Lasic & Lasic [2009] FamCAFC 64 (Boland, Thackray & Ryan JJ) (Lasic); and the ability of third parties to be parties to a financial agreement and for creditors to apply to set aside a financial agreement entered to defraud a creditor or with reckless disregard to a creditor’s interest (para eab) of the 4(1) definition of ‘matrimonial cause’/para (f ) of the s 4(1) definition of ‘de facto financial cause’ and s 4AA/4B, read with s 90K(1) (aa)/90UM(1)(b)).

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orders can attach to it.5 In relation to companies, the fundamental concept of corporate law is that the company is a separate legal entity, distinct from its members (in most cases shareholders, who own shares representing their investment in the company) and directors (who manage the company).6 In contrast, a family discretionary trust is not a separate legal entity. The legal owner of the trust property is the trustee. Beneficiaries have an equitable interest comprising a right to call on trustees to administer the trust in accordance with the trust deed, a right to be considered by the trustees in the exercise of their discretion to make distributions, and a right to call for accounts, but have no other interest in the trust property.7 However, if the court takes that view that the trust property is property of the parties to a marriage or de facto relationship, the operation of the trust, including the interests of third party beneficiaries, is likely to be adversely affected. In essence, property owned by a third party (for example, a company or a trust) will not be treated as property of parties to a marriage or de facto relationship in section 79/90SM proceedings unless it can be established that one or both parties has control over the third party.8 The leading case is Ascot Investments Pty Ltd v Harper,9 decided by the High Court of Australia (HCoA) in 1981, in which the husband had a substantial but not a controlling interest in the relevant company and three of its directors were sons of the marriage. While the husband appeared to exert effective control, the majority of the Court10 did not consider that this was enough for the company to be regarded as his ‘puppet’. Ascot Investments thus suggested that in the absence of legal control of a company (that is, voting control either of the shareholders in general meeting or the board of directors) by a spouse or de facto partner,11 it would be difficult to establish control justifying interference with the rights of the company. The case law in relation to discretionary trusts similarly underlines ‘the centrality of the concept of control as the effective determinant of the question of whether, in private family law proceedings, the assets of a discretionary trust can be treated as an asset of a party or parties’.12 The crucial issue when establishing the requisite level of control is the ability of a party to vest the property of the trust in himself or herself, or in the other spouse or 5 While our focus is on the Australian context, similar issues have arisen in other jurisdictions, e.g., Prest v Petrodel Resources Limited and Others [2013] UKSC 34. 6 Salomon v Salomon & Co [1897] AC 22. 7 See further John Glover, ‘Discretionary Trusts, Fiduciary Duties and the Family Law Act: Has the Family Court Acted Beyond Power?’ (2000) 14 Australian Journal of Family Law 184, 187; Diana Bryant, ‘Heterodox is the New Orthodox—Discretionary Trusts and Family Law: A General Law Comparison’, paper presented at the Society of Trusts Estate Practitioners South Australia Trusts Symposium, Adelaide, 7 March 2014. 8 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 (Ascot Investments). 9 ibid. 10 Justice Gibbs delivered the leading judgment; Aickin J and Wilson J agreed with Gibbs J, and Barwick CJ delivered a separate judgment also allowing the appeal. Justice Murphy dissented. 11 Cf R v Dovey; Ex Parte Ross (1979) 141 CLR 526; [1979] HCA 14, a case where the husband’s legal control was established. The wife was granted an injunction to prevent her husband using his voting rights and/or position as a director in a family company he controlled to sell the matrimonial home, which was owned by the company. In that case, the husband and wife were both directors of the company but the husband held the only share conferring the right to vote in general meeting. Although the husband claimed that a redeemable preference share had been issued to his accountant, it seemed that this would only have voting rights as assigned by the directors, and that if the directors disagreed on this it would be a matter resolved by the shareholders (i.e., the husband) in general meeting. 12 Bryant, above n 7, p 5.

552 AUStralian FAMILY LAW: the contemporary context

partner.13 In 2007 in Stephens,14 Bryant CJ summarised the authorities and the underlying policy rationale as follows: a party who is the trustee of a discretionary trust, or has the capacity to appoint himself as trustee, and is also a beneficiary, or who has the capacity to become a beneficiary or become a majority shareholder in a company (who is or can become a beneficiary) can have the assets of the trust treated as if they are his or her own property. … Were it otherwise, it is obvious that a party could, by simply acquiring or placing assets in a discretionary family trust, effectively avoid an order being made which would enable the other party to share in the property owned by the trust.15

Thus in 2008 in Kennon v Spry16 (the appeal of the Full Court’s decision in Stephens) a majority of the HCoA17 held that the assets of a family discretionary trust were the property of the parties to a marriage, due to the husband’s power as a trustee to appoint the whole of assets of the trust to the wife who was a beneficiary. The HCoA’s decision was followed in 2009 by enforcement proceedings in Stephens (Enforcement),18 in which the Full Court held that it had power to make orders that the husband, as the controller of the trust, satisfy his personal liability to the wife out of the assets of the trust.19 This aspect of the decision had a direct impact on third parties, namely the parties’ children who were beneficiaries under the trust. The fact that the trust assets comprised assets acquired by the parties to the marriage and that the third parties were so closely linked to Dr and Mrs Spry made it easier to disregard their interests in this case, although the decision has certainly led to further criticism from trusts lawyers who claim to take a stricter view on when court interference with the running of a trust is warranted than the family law courts, which are generally more focused on the achievement of a just and equitable outcome.20 In making its 2009 decision in Stephens (Enforcement), the Full Court was influenced by FLA Part VIIIAA, ‘Orders and injunctions binding third parties’, which all parties agreed provided jurisdiction to make an order against assets of the trust. While Part VIIIAA was inserted into the FLA via Schedule 6 of the Family Law Amendment Act 2003 (Cth)21 and has been in force from 31 December 2004, considerable uncertainty has surrounded whether it can be used to alter the substantive property rights of third parties or can only 13 Anthony Dickey, ‘The Principle in Ashton Reviewed’ (1991) 65 Australian Law Journal 544. See also Richard Ingleby, ‘Family Law’ in An Annual Survey of Australian Law 1991, Adelaide Law Review Association, Adelaide, 1992, 404–5. 14 Stephens & Stephens and Ors [2007] FamCA 680 (Bryant CJ, Finn and Warnick JJ) (Stephens). 15 ibid., [43]–[44] (Bryant CJ). 16 Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56 (Kennon v Spry). 17 French CJ; Gummow and Hayne JJ. Heydon J dissenting and Kiefel J agreeing that the appeal should be dismissed but on the basis of FLA s 85A, which provides another way in which the court can vary interests under a discretionary trust in the rare case where it can be established that the trust is an ante-nuptial (i.e., pre-nuptial) or post-nuptial settlement. 18 Stephens (Enforcement) [2009] FamCAFC 240 (May, Boland and O’Ryan JJ). 19 ibid., [351]–[357] (May, Boland and O’Ryan JJ). 20 Bryant, above n 7; Lee Aitken, ‘Muddying the Waters Further—Kennon & Spry: ‘Ownership’, ‘Control’ and the Discretionary Trust’ (2009) 32 Australian Bar Review 173. 21 The 2009 de facto financial amendments (2.4.1.2) extended Part VIIIAA so that it applies to both matrimonial and de facto property disputes (FLA s 90TA).

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be used to implement orders relating to what has properly been found to be the property of the parties to the marriage. In 2009, the Full Court indicated in Stephens (Enforcement) that it preferred the expansive view. In 2013, this was again evident in AC & VC.22 The Full Court concluded (consistent with submissions by counsel for the Attorney-General, who intervened) that orders could be made under Part VIIIAA to accelerate the vesting of a discretionary trust (thus altering the rights, liabilities or property interests of third parties, in this case comprising the parties’ three children and the husband’s mother) provided that legislative safeguards protecting third parties were satisfied and ‘where reasonably necessary or reasonably appropriate and adapted to effect a division of property between the parties to the marriage’:23 Whatever may be the outer limits of the powers in Part VIIIAA, we are satisfied the Part can be used to require a trustee (including a third party trustee) to bring forward the vesting date of a trust [fund] for what can be termed, the ‘ancillary’ purposes of valuing an irrevocable entitlement to ultimately share in the trust fund, and of distributing that share to the party entitled, and that these powers can be exercised even at the expense of third party interests, provided that the requirements in ss 90AE(3) and (4) and ss 90AF(3) and (4) are met, and the order, if made under s 79, is ‘just and equitable’, or if made under s 114, is ‘proper’.

This conclusion was, however, encouraged by the trial judge’s finding that the husband and wife, as specified beneficiaries, had a ‘fixed and irrevocable entitlement to a share of capital upon a vesting of the trust’.24 However, the appeal was allowed because the husband’s mother was not accorded procedural fairness as Part VIIIAA required. After Stephens, Stephens (Enforcement) and AC & VC, it thus appears that courts exercising FLA jurisdiction have power to make orders (under Part VIIIAA or more broadly) adversely affecting third parties, provided that the orders are reasonably necessary to achieve a just and equitable outcome between the parties and procedural safeguards protecting third parties are met. However, Ascot Investments has not been overruled, it is not yet clear what guides discretion, and the implications of AC & VC are not yet clear.

14.2.2 Apportioning liabilities and losses As noted in the previous section, the practice in property applications under FLA section 79/90SM has been to ascertain the value of the property of the parties by deducting their liabilities from the value of their assets. This practice operates most clearly where a third party’s interest is secured (that is, where property or a personal undertaking is provided as security for the loan, with the lender being able to call on that security if the borrower defaults). In that case, the parties are in the position of unsecured creditors and will rank after secured creditors. Unsecured liabilities will normally be deducted in section 79/90SM proceedings, but the court may decline to do so if it considers that the debt is vague or 22 AC and Ors & VC and Anor [2013] FamCAFC 60 (Bryant CJ, Finn and Strickland JJ) (AC & VC). 23 Stephens (Enforcement) [2009] FamCAFC 240, [69] (May, Boland and O’Ryan JJ). 24 AC & VC [2013] FamCAFC 60, [81]–[87] (Bryant CJ, Finn and Strickland JJ, quoting the first instance decision of Chrisford J).

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uncertain, unlikely to enforced, or has been incurred unreasonably.25 Even then, however, third party rights ‘cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse’.26 This approach was taken in Biltoft,27 in which the Full Court upheld the trial judge’s approach of taking into account in a general way an unsecured and unquantified debt (of something less than $280,000) owed by the husband to a third party. The court’s usual approach of deducting liabilities from assets even in the case of unsecured liabilities is necessary given the fundamental requirement that section 79/90SM orders are limited to property to which the parties are entitled (13.3.1.1) but has the result that ‘however meritorious the claims of a [non-debtor spouse or de facto partner], his or her section 79/90SM claim is effectively postponed to the rights of unsecured third party creditors’,28 rather than sharing any available funds proportionately with other unsecured creditors (being the standard approach in insolvency law).29 In the interests of achieving just and equitable outcomes, there are now several ways in which the broad approach may be modified with the effect that losses (including liabilities) may not be shared or shared equally. The various approaches also amount to a series of exceptions developed in the case law to the general principle that ‘marital conduct of parties is not specifically referred to in section 79 of the Act and as a general proposition the marital behaviour of parties is not of itself relevant to applications under section 79’.30 While more obviously consistent with an individualistic approach, they may also reflect a modified partnership approach. The approaches allow financial losses to be recognised at several points in the section 79/90SM process for making property settlement orders (Chapter 13), namely:31 • When property is identified, by treating the loss as a premature distribution of the asset pool and notionally adding it back to the pool as the asset of the party who had its sole benefit (referred to as ‘notional property’ or ‘add-backs’).32 • When contributions are assessed, if the conduct of one party towards the other has had a significant adverse impact upon the other parties’ contributions to the marriage or made the other parties’ contributions more arduous than they ought to have been,

25 In the Marriage Of: Christopher John Biltoft Cross-Appellant/Husband and Valentina Biltoft Respondent/Wife Appeal (Biltoft) [1995] FamCA 45, [57] (Nicholson CJ, Ellis and Buckley JJ). See further Dorothy Kovaks, ‘The New Face of Bankruptcy in 2005: The Bankrupt Spouse, the Trustee in Bankruptcy, and the Family Court’ (2005) 19 Australian Journal of Family Law 60, 77. 26 Biltoft [1995] FamCA 45, [63]. 27 ibid., [65]. While not a legislative rule, it is a ‘general practice’ that is commonly followed. 28 Patrick Parkinson, ‘Property Rights and Third Party Creditors: The Scope and Limitations of Equitable Doctrines’ (1997) 11 Australian Journal of Family Law 100. 29 An example of the harsh impact of this on the non-debtor spouse is In the Matter Of: Fayza Bourham Chemaisse Appellant/Wife and the Commissioner of Taxation First Respondent/Intervener and Bourham Chemaisse Second Respondent/Husband [1990] FamCA 32. 30 Polonius & York [2010] FamCAFC 228, [69] (Boland, Thackray and O’Ryan JJ, citing Soblusky and Soblusky (1976) FLC 90-124). 31 Polonius & York [2010] FamCAFC 228, [89] (Boland, Thackray and O’Ryan JJ). 32 In the Marriage Of: Azelda Deslie Townsend Appellant/Wife and Anthony Clyde Townsend Respondent/Husband Appeal (Townsend) [1994] FamCA 144 [1994] FamCA 144.

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then this may be relevant.33 While this approach was developed by the Full Court in Kennon34 in the context of inter partner violence (14.6), it can also be utilised more widely including in cases involving financial losses.35 • When the additional factors are considered, by taking the losses into account in a general way under section 75(2)(o): Kowaliw.36 In recent years, the first approach has received much attention in practice and case law, to the extent that, ‘increasingly, (and despite the Full Court seeking to emphasise that they are the exception and not the rule) there seem to be few cases in which it is not said that “add backs” of some significance should form part of the divisible assets’.37 However in Bevan & Bevan, decided by the Full Court after Stanford (Chapter 13) the Court suggested that the third approach was preferable: We observe that ‘notional property’, which is sometimes ‘added back’ to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute ‘property of the parties to the marriage or either of them’, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage—and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.38

More broadly, the approach taken in Bevan also appeared to support the second approach: in that case, the husband ‘took to the seas’, leaving the wife to manage a protracted legal dispute and to look after his mother. As treatment of financial losses was not an issue that arose in Stanford or Bevan, the Full Court’s observations in Bevan suggest the broader impact of Stanford on specific issues that arise in the section 79/90SM process. Particular concerns in relation to add-backs are (1) that their recognition is at odds with Stanford’s emphasis on existing interests in property, and (2) the more general question following Stanford regarding the use of any established or set approach that risks pre-determining outcomes. Yet those seeking to have losses accounted for are likely until prevented by clear authority to keep attempting to utilise the approaches that have evolved, and of these approaches are likely to prefer add-backs, given that the Kennon principle is difficult to establish (14.6) 33 Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal [1997] FamCA 27; (1997) 22 Fam LR 1 (Kennon). 34 ibid. 35 Polonius & York [2010] FamCAFC 228, [86] (Boland, Thackray and O’Ryan JJ. For example Hill v Hill (Reported as H & H) (2005) 32 Fam LR 552, [74] (Kay, Holden and Boland JJ): the husband argued unsuccessfully that the wife’s conduct warranted a Kennon adjustment in his favour, as she ‘disrupted and interfered’ with his business operations, including diverting money, diverting his emails and causing tension at the office. He also failed to establish that on the basis of In the marriage of Kowaliw, J.I. and Kowaliw, A.G. (1981) FLC 91-092 (Kowaliw) her conduct should be treated as relevant under s 75(2)(o) or as a premature distribution of assets in favour of a guilty party. 36 Kowaliw (1981) FLC 91-092. 37 Kouper & Kouper (No. 3) [2009] FamCA 1080, [106] (Murphy J) (Kouper). 38 Bevan & Bevan [2013] FamCAFC 116 (Bevan), [79] (Bryant CJ and Thackray J).

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and taking the loss into account under section 75(2)(o)/90SF(3)(o) may result in a lesser adjustment than treating the loss as ‘notional property’. Given the high level of attachment to add-backs, there is some attraction—as well as merit—in the argument that financial losses give rise to a right to account between spouses, which is a legal and equitable interest in property within Stanford.39 Whatever approach is taken to apportioning losses, other questions surrounded the circumstances in which financial losses will be relevant, with the pre-Stanford and Bevan case law in the context of add-backs identifying the following main circumstances, summarised by the Full Court in 2005 in Omanici:40 1. where the parties have expended money on legal fees;41 2. where there has been a premature distribution of matrimonial assets;42 3. in the circumstances outlined by Baker J in Kowaliw43 (which in essence involve negative contribution—sometimes referred to as ‘wastage’): As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances: (a) (b)

where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

In Kouper44 Murphy J considered the Full Court authorities and suggested that (with the exception of paid legal fees) add-backs could be approached with reference to five questions: 39 Richard Ingleby, ‘Addbacks, Post-Separation Contributions and Stanford’, paper delivered at Legalwise, 6 March 2014. Cf Watson & Ling [2013] FamCA 57, [29]–[30] (Murphy J), which while not dealing specifically with the right to account is not encouraging of notional property being viewed as an existing legal or equitable interest in property after Stanford. 40 Reported as AJO & GRO [2005] FamCA 195, [30] (Holden, Warnick and Le Poer Trench JJ). See also Kouper [2009] FamCA 1080, [90]–[113] (Murphy J); Shimizu & Tanner [2011] FamCA 271, [72]–[74] (Bryant J). 41 FLA s 117 says parties shall bear their own costs unless the court otherwise orders and courts have emphasised that they have discretion to add back legal fees. See further DJM and JLM [1998] FamCA 97, [11.6]: ‘the normal approach ought be to add costs already paid back into the pool’ (Kay, Baker and Morgan JJ); cf Chorn & Hopkins, reported as NHC & RCH [2004] FamCA 633, [58]: ‘If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset’ (Finn, Kay and May JJ). More recently, see Beklar & Beklar [2013] FamCA 327 in which Ryan J added back legal fees, seeing that the husband’s argument that he had paid for these out of his post-separation income and his living expenses out of matrimonial capital was an attempt to avoid Chorn & Hopkins: ‘I am persuaded that the manner in which he arranged his financial affairs qua legal fees at this point was unreasonable and almost certainly designed to maximise his chances of persuading the Court that the wife should not share in the savings he retained at separation’ ([151]). 42 Townsend [1994] FamCA 144: the husband had a taxi licence, which he sold and retained the benefit of the money. 43 Kowaliw (1981) FLC 91-092, 76,644: the husband had lost money by permitting a prospective purchaser (who did not purchase) to occupy the matrimonial home free of rent or contribution to outgoings for about a year. Baker J held that this action was commercially inept and economically reckless, and that the husband should be solely responsible for the consequent loss. 44 Kouper [2009] FamCA 1080, [90]–[113] (Murphy J).

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(a)

(b)

(c)

(d)

(e)

Is it contended that property (including money), that would otherwise be available for distribution between the parties if a s 79 order is made, has been dissipated with a consequential loss to the property otherwise potentially divisible between the parties at the date of trial?; If so, is it alleged that the dissipation of property was in respect of things other than what, in the particular circumstances of this particular marriage, can be classified as “reasonable living expenses”?; If it is asserted that any loss to the divisible property results from dissipation of property other than in respect of such expenses, why is it asserted that the result should be a sharing of that loss by the parties other than equally? If it is contended that this be the result, why should there be an add back (which brings to account, dollar for dollar, such past expenditure in current dollars) as ­distinct, for example, from there being an adjustment being made pursuant to s 75(2)(o)?; and How should either any ‘add back’, or adjustment pursuant to s 75(2)(o), be ­quantified?45

However, this approach has not received universal support46 and judges (including Murphy J in Kouper)47 have emphasised there is no firm or fixed set of categories. Rather, treatment of financial losses is a matter of discretion: the court must consider the particular circumstances surrounding expenditure and decide how to treat the diminution to achieve a just and equitable outcome. Indeed, the Full Court’s 2011 decision in Mayne & Mayne,48 in which the husband argued that $173,841 that could not be accounted for by the wife should be added back into the pool, illustrates the different approaches that may be taken within a case.49 Courts have also emphasised that ‘[i]t is not the Court’s function to conduct an audit of the marriage or of the relationship finances’,50 and the decision of Bryant CJ in Shimizu & Tanner51 illustrates the reluctance of the courts to limit too strictly the reasonable spending of parties post-separation. The limit appeared to be reached in Sand & Sand 52 in which Coleman J (on appeal from the Federal Magistrates Court of Australia 45 ibid., [108] (Murphy J). 46 For example, while it was found useful by Bryant CJ in Shimizu & Tanner [2011] FamCA 271, [74]–[75], in Mayne and Mayne [2011] FamCAFC 192, [182], Strickland J did not consider that Shimizu & Tanner [2011] FamCA 271 and Kouper [2009] FamCA 1080 were definitive of the issues or added anything. 47 Kouper [2009] FamCA 1080, [113] (Murphy J). 48 Mayne & Mayne [2011] FamCAFC 192 (Faulks DCJ, May and Strickland JJ) (Mayne). 49 More specifically, Faulks DCJ disagreed with the Federal Magistrate’s adding-back of the funds to the pool and viewed the proper approach as being to consider it under s 75(2)(o) factor or when the court considered whether it would be just and equitable to make the orders (Mayne [2011] FamCAFC 192, [83]). May J viewed the better course as being to take it into account when considering the parties’ contributions [106]. Strickland J considered its inclusion as an asset notionally added back was open to the federal magistrate, although the federal magistrate fell into error when taking it into account again under s 75(2), [184]–[185]. These different approaches led to different outcomes when the Full Court re-exercised discretion: Mayne & Mayne (No. 2) [2012] FamCAFC 90 ((Faulks DCJ, May & Strickland JJ), with May J’s approach resulting in the wife receiving $554,089 of the nonsuperannuation assets ([106]), Faulks DCJ agreeing as on his approach the outcome was almost the same ([13]), in contrast to Strickland J’s approach, which would have resulted in the wife receiving $675,779 and the husband $289,619 ([126]). 50 Mayne [2011] FamCAFC 192, [78] (Faulks DCJ). 51 Shimizu & Tanner [2011] FamCA 271. 52 Sand & Sand [2012] FamCAFC 179, [40]–[55] (Coleman J).

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(FMCoA)) concluded that where the only ‘property of the parties’ is ‘notional’ the court’s jurisdiction is not enlivened, as the section 79/90SM jurisdiction is restricted to property then existing.53 In summary, courts appear keen to confine add-backs while parties remain intent on securing them. While containment is understandable, preventing them may lead to unfair treatment of those who are financially careful after separation, and encourage waste. The keenness of parties on them is in part a recognition that after separation a partnership no longer exists so greater accounting is fair.

14.2.3 Bankruptcy The property interests of third parties and non-bankrupt separating spouses (and now de facto partners) have traditionally collided in the bankruptcy context. Issues arise because, on bankruptcy, the property of the bankrupt vests in the Trustee in Bankruptcy (the trustee) who deals with the property for the benefit of the bankrupt’s unsecured creditors. Before reform in 2005, in section 79 proceedings non-bankrupt spouses encountered significant problems accessing property once owned by their bankrupt partner but now vested in the trustee. Particular problems arose regarding claims based on non-financial contributions to the bankrupt’s property, which can be recognised by courts under the FLA, but are not similarly recognised under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). The position was that a non-bankrupt spouse who obtained section 79 orders regarding property owned by their bankrupt spouse joined other unsecured creditors and gained no special priority.

14.2.3.1  FLA proceedings after bankruptcy occurs The Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) (the 2005 Act) amended the FLA and the Bankruptcy Act to improve the position of non-bankrupt spouses—and now de facto partners—in FLA Part VIII proceedings54—although the extent to which this will actually be so in any given case remains difficult to predict. Following the reforms, property that has vested in the trustee can now be subject to a property or spousal/de facto partner maintenance order under Part VIII/VIIIAB (Bankruptcy Act section 59A). When a party is bankrupt at the outset of FLA proceedings or becomes bankrupt during proceedings, the changes aim to ensure that bankruptcy and FLA proceedings are heard together by the Family Court of Australia (FCoA) or the Federal Circuit Court of Australia (FCCoA). They provide for involvement of the trustee in FLA proceedings and for account to be taken of the impact of proposed orders on the interests of creditors represented by the trustee. An attempt is thus made to balance the interests of non-bankrupt spouses and de facto partners, and unsecured creditors. Thus in Lemnos,55 the Full Court accepted ‘that the effect of the amendments is that the interests of unsecured creditors do not automatically prevail over the interests of the non-bankrupt 53 ibid., [40]–[55]. 54 For a more detailed account, see Kovaks, above n 25, pp 60–78. 55 Trustee of the property of G Lemnos & Lemnos and Anor (Lemnos) [2009] FamCAFC 20 (Coleman, Thackray and Ryan JJ).

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spouse and that the legislation requires the Court to balance their competing claims in the exercise of the wide discretion conferred by section 79’.56 The Full Court also confirmed that section 79 jurisdiction existed notwithstanding that all of the property the subject of the proceedings had vested in the trustee.57 Less clear, however, is how competing interests of a non-bankrupt spouse or de facto partner and the trustee will be balanced in any given case. In Lemnos, for example, the husband was bankrupted due to his substantial liability to the Australian Taxation Office. The trial judge found that the liability had arisen due to the husband’s ‘reckless and negligent’ conduct regarding completion of his taxation returns and that the wife had no awareness or reason to be aware of the husband’s conduct. On this basis, the trial judge had allocated 50 per cent of the assets (purchased in the husband’s name and so now vested in the trustee) to the wife on the basis of her contributions, making no further adjustment in favour of her or the trustee on the basis of section 75(2), although expressing ‘concern with the outcome of this case in so far as the creditor principally to lose out in the case is the Australian Tax Office and therefore the tax payers of this land’.58 Allowing the trustee’s appeal,59 all members of the Full Court considered that the outcome was outside the range of reasonable discretion and that this ‘may well have been the result of his Honour having given disproportionate weight to the wife’s lack of complicity in the husband’s indiscretions and having given inadequate weight to the fact that the wife had benefited from those indiscretions’.60 The underlying view therefore seemed to be that the wife should ‘take the good with the bad’ and share in losses over which she had no control, ‘[h]aving had the benefit of the funds flowing from the husband’s conduct’.61 However, as the matter was remitted for retrial, the balance to be struck between the competing interests of non-bankrupt parties and creditors was not clear. There was no re-hearing in Lemnos so it appears the matter settled. Out-of-court settlement in Lemnos may have been encouraged by Worsnop62 in which, just before the decision in Lemnos, a differently constituted Full Court dismissed the trustee’s appeal against property orders for equal division between the wife and the Commissioner of Taxation of the net proceeds of sale of the former matrimonial home, which was the parties’ only significant asset, in circumstances where the husband’s tax liability was $12,031,124 and the value of the former matrimonial home was $4,750,000. The trial judge found that ‘the husband engaged in reckless financial conduct but the wife 56 57 58 59

ibid., [200] (Thackray and Ryan JJ). ibid., [97] (Coleman J), [201] (Thackray and Ryan JJ). ibid., [286] (Thackray and Ryan JJ, citing Lemnos & Lemnos [2007] FamCA 1058, [97] (Le Poer Trench J)). Coleman J on the basis that the trial judge’s discretion had miscarried because he had appeared to have concluded that it was appropriate that the husband bear the entire burden of the taxation debt before considering s 75(2)(ha) (an additional factor inserted as part of the 2005 reforms, which requires the court to take into account ‘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’) (ibid., [175]–[179]), and Thackray and Ryan JJ on the basis that the trial judge had erred in treating the husband’s primary taxation liability as ‘waste’ and in applying the approach in Kowaliw (discussed earlier) ([241]–[248], [288]. 60 ibid., [292] (Thackray and Ryan JJ; see also Coleman J, [180]). 61 ibid., [244] (Thackray and Ryan JJ citing Johnson and Johnson [1999] FamCA 369, [10.6] (Ellis, Kay and Dessau JJ), see also Coleman J [180]). 62 Commissioner of Taxation & Worsnop and Anor [2009] FamCAFC 4 (Bryant CJ, Warnick and Cronin JJ) (Worsnop).

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truly was the “innocent” victim of his dealings’.63 The Commissioner argued on appeal that both parties had benefited from the husband’s tax evasion, especially as it assisted them to purchase the matrimonial home, and so the proceeds of the sale should be paid to the Commissioner. It was also argued that the trial judge ought to have found that the source of funds used to purchase the matrimonial home was income upon which tax had not been paid. Dismissing the appeal, the Full Court concluded that the decision of the trial judge came within the parameters of a reasonable exercise of discretion and the Commissioner’s appeal was dismissed. The trial judge’s careful weighing up of the interests of the wife and the trustee, and the fact that he had not made a section 75(2) adjustment in the wife’s favour (which, given her primary care of the parties’ four children, would have given her an additional estimated $500,000) and had not added back the husband’s paid legal fees of $700,000,64 appeared significant to the Full Court’s decision. The breadth of discretion available to courts under section 79/90SM, which became evident in Lemnos and Warsnop, possibly explains why there have been few reported cases and suggests that trustees may be reaching settlements with non-bankrupt spouses and partners that enable them to avoid the family law courts. This alternative may also be preferred given the decision of the HCoA in Cummins65 underlining the importance of equitable interests in the bankruptcy context, and adding to confusion and uncertainty in the area (14.2.3.2).

14.2.3.2 Transactions entered before bankruptcy occurs Importantly, the Family Law Amendment Act 2003 (Cth) changed the pre-existing position regarding binding financial agreements (14.7) and bankruptcy. Previously, parties could organise their financial affairs using a financial agreement that would be enforceable by the non-bankrupt spouse on the bankruptcy of the other spouse, as long as it was not made with the intention to defeat creditors (Bankruptcy Act section 123(6)).66 Now, a creditor may apply to the court to set aside a financial agreement on the basis that it was entered to defraud creditors or with reckless disregard of creditors’ interests.67 Apart from this change in relation to financial agreements, the 2003 Act did not alter the pre-existing position regarding transactions entered between spouses before bankruptcy occurs. The position remains that these68 may be rendered ineffectual by the doctrine of ‘relation back’ enshrined in sections 115 and 116 of the Bankruptcy Act.69 The doctrine ibid., [83] (Bryant CJ, Warnick and Cronin JJ), citing Worsnop & Worsnop [2007] FamCA 244, [220] (Rose J). ibid., [89]. Trustees of the Property of Cummins (a Bankrupt) v Cummins (Cummins) (2006) 227 CLR 278; [2006] HCA 6. ASIC v Rich [2003] FamCA 1114. FLA s 4(1)(eab) of the definition of ‘matrimonial cause’/4(1)(f ) of the definition of ‘de facto financial cause’, s 4A/4B, s 90K(1)(aa)/90UM(1)(b). While the definition does not refer to a trustee in bankruptcy, they may be able to apply as an ‘interested person’ (s 90K(3)/90UM(6)). 68 With the exception of property transferred before bankruptcy to a non-bankrupt spouse pursuant to a maintenance order (i.e., a spousal or child maintenance order, or an order for child support), which is exempt from the doctrine of relation back if the transfer was not made to defeat the claims of creditors (Bankruptcy Act s 123(6)). Maintenance orders (meaning orders for spousal maintenance and arrears registered under Commonwealth, state or territory law, or an assessment under the Child Support (Assessment) Act 1989 (Cth): Bankruptcy Act s 5(1)) in relation to the bankrupt’s income and non-divisible property remain enforceable (Bankruptcy Act s 58(5A)(a)). 69 See further Michael Murray and Jason Harris, Keay’s Insolvency: Personal and Corporate Law and Practice, 8th edn, Lawbook Co, Australia, 2013, pp 26–8. 63 64 65 66 67

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operates to vest in the trustee all property belonging to the bankrupt not only at the date of the bankruptcy, but also between the commencement of the bankruptcy and the date of the bankruptcy (that is, up to six months prior to the date of the bankruptcy). However, the doctrine of relation back will not affect the transfer of an interest in property held by the bankrupt for the non-bankrupt spouse on constructive trust arising prior to bankruptcy (including, depending on the circumstances, prior to court order), with the result that that the trustee in bankruptcy would take the property subject to her interest.70 Also relevant are the ‘voidable transactions’ provisions of the Bankruptcy Act (sections 120–2), which allow the trustee to challenge certain dealings by the bankrupt prior to the commencement of bankruptcy. The operation of the ‘voidable transactions’ provisions to transactions between spouses was considered by the HCoA in Cummins,71 in which husband’s trustees in bankruptcy applied to the Federal Court to have set aside under section 121 of the Bankrupcty Act the husband’s transfer to his wife of his interest in their home (as well as shares he owned) 13 years before his bankruptcy. The parties separated in 2002 and there were pending proceedings in the FCoA (these being the days prior to the FLA reforms just outlined). Justice Sackville made the orders sought, holding that at the time of the transfers, the Australian Taxation Office was a creditor of the husband and that the transfers were void under section 121(1)(b) of the Bankruptcy Act because their main purpose was to prevent or delay the creditors from getting hold of the property. The issue then became the share of the family home that the husband had been entitled to, given that the wife’s contributions to the purchase price had been greater than the husband’s (Mrs Cummins contributed 76.3 per cent of the purchase price and Mr Cummins 23.7 per cent). Here, the starting point was the ‘presumption of resulting trust’ made in trusts law, to the effect that the parties intended to hold the property proportionate to their contributions.72 However, Sackville J considered that this presumption had been rebutted because when the property had been purchased, the parties had intended to acquire it in equal shares, legally and beneficially. The practical effect of this was that the trustees were entitled to 50 per cent of the family home rather than 23.7 per cent. In a joint judgment, the HCoA (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld the Federal Court’s decision, also suggesting that where both parties have contributed to property, an inference that they shared their interests in that property equally operates as a starting point for the determination of their respective beneficial interests, regardless of legal title.73 Subsequently, Lisa Sarmas’s analysis of the post-Cummins case law found that the impact of the HCoA’s decision was patchy and unclear: [T]he overall picture that emerges on a review of the case law since Cummins is one of doctrinal confusion and inconsistency. In cases involving formally married couples and the division of the family home, federal and family courts of first instance have tended to apply the inference whereas their appellate counterparts have tended to 70 Re Sabri; Ex parte Brien v Sabri (1996) 137 FLR 165 (Chisholm J). 71 Cummins (2006) 227 CLR 278; [2006] HCA 6. See further Lisa Sarmas, ‘Trusts, Third Parties and the Family Home: Six Years since Cummins and Confusion Still Reigns’ (2102) 36 Melbourne University Law Review 216. 72 Calverly v Green (1984) 155 CLR 242; [1984] HCA 81. 73 See further Lisa Sarmas, above n 71.

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bypass and/or ignore it. At the state level, the inference has been ignored in this context, except in New South Wales, where it has been accepted at both first instance and on appeal. More consistency surrounds those cases involving de facto couples, where the inference has not been applied. And in the one case [citation omitted] dealing with the division of an investment property within a marriage context, the Cummins principle similarly has not been applied.74

In the narrower family law (as distinct from the bankruptcy) context, the ability of the trustee to utilise the voidable transactions provisions against a non-bankrupt spouse became more limited following the decision of the Full Federal Court in Mateo75 in 1993. In Mateo the Court held that FLA section 79 consent orders made by the FCoA against Mr Mateo, who later became bankrupt, constituted an order of the court, and not a ‘transfer of property by a person who later becomes a bankrupt’ as required under sections 120 and 121 Bankruptcy Act. The effect of the FCoA order that Mr Mateo, as the legal owner of property, transfer his interest to Mrs Mateo was to create a beneficial interest vested in Mrs Mateo, which would defeat the interest of the trustee in bankruptcy. As a result, property orders should be challenged by the trustee under FLA section 79A, rather than under the voidable transactions provisions of the Bankruptcy Act.76 Mateo caused alarm among insolvency specialists as it opened a significant loophole for non-bankrupt spouses, allowing them to enter FLA property consent orders (12.4.2) with their spouse or partner on the eve of bankruptcy, effectively sidestepping the voidable transactions provisions of the Bankruptcy Act. This risk was compounded by the reality that, in practical terms, ‘the consent order procedure followed for [property] orders may not involve any real factual investigation as to the interests that might be affected by the orders’.77 This is despite financial disclosure obligations on the parties (12.4.2) and the court’s obligation to consider the interests of creditors and the ability of parties to intervene in FLA proceedings (FLA section 92). Changes to the FLA (resulting from the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) and the Family Law Amendment Act 2003 (Cth)) attempted to improve the notification, involvement and consideration of the interests of creditors in FLA proceedings, both in the bankruptcy context and more generally.78 However, the few reported case so far indicate the difficulties and risks involved for trustees who become involved in FLA proceedings,79 suggesting once again that trustees may well prefer to avoid the family law courts.

74 ibid., p 68. 75 Official Trustee in Bankruptcy v Mateo (2003) [2003] FCAFC 26 (Mateo). 76 In Lasic [2009] FamCAFC 64, the Full Court (Boland, Thackray and Ryan JJ) concluded that a trustee had standing as ‘a person affected’ to bring proceedings pursuant to FLA s 79A. 77 Mateo [2003] FCAFC 26, [143] (Merkel J). 78 These include, in relation to FLA s 79, provisions for the giving of notice of s 79 proceedings to the trustee (FLA s 79G; Family Law Rules 2004, Reg 6.15) and creditors whose interests may be affected by s 79 orders (FLA s 79F, Family Law Rules reg 6.02), requiring the court to consider the interests of creditors when making s 79 orders (FLA s 90AE(4)), providing for creditors (FLA s 79(10)(a))or the trustee (FLA s 79(11) to become parties to s 79 proceedings, and providing for the trustee to become a party to spousal maintenance proceedings (FLA s 74(2)). 79 CCH International, Australian Family Law and Practice Commentary, 6th edn, [14-660] ‘Case studies: Bankruptcy and Family Law Legislation Amendment Act 2005 (BAFLLAA) in action’, 2 April 2014, discussing Lasic [2009] FamCAFC 64. See also Lemnos [2009] FamCAFC 20; West & West & Anor [2007] FMCAFam 681.

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14.3  Initial and post-separation contributions There is … a strong tendency to treat property brought into the relationship by one party or received by way of inheritance as property to which the other party gains an entitlement through the passage of time. The longer the relationship lasts, typically the less weight is placed on legal ownership or the fact of the property’s acquisition prior to the commencement of cohabitation. The High Court in Stanford may have been seeking to challenge these tendencies.80

Quite often, one party enters the marriage or de facto relationship with property or acquires property after the parties separate but before final property settlement. On the face of FLA section 79/90SM, there appears no reason why the timing of contributions should mean that they are treated any differently from property acquired during the marriage, especially given the basic (and broader) position that contributions prior to cohabitation81 and after separation82 are relevant under section 79(4)/90SM(4). There has, however, been some debate about the extent to which property brought into the marriage/de facto relationship, or acquired after separation but before property settlement, should be treated differently (that is, as the property of the contributor) to property acquired during the marriage or de facto relationship, reflecting the absence of a partnership before relationships begin and after they end. More than one approach has been evident in the case law. Recent Full Court cases, however, suggest (consistent with Stanford) a move away from any set approach that ‘necessarily predisposes matters to an outcome that may not otherwise be available upon a proper assessment of all the contributions’83 (as treating initial and post-separation contributions to property might). There is an apparent shift towards a contextual approach to contributions assessment that focuses on the particular circumstances of the case and does  not require a causal connection between contributions and the acquisition of property.84 The judgment of Kay J in Aleksovski 85 is often cited to illustrate this approach: A party may enter a marriage with a gold bar which sits in a bank vault for the entirety of the marriage. For 20 years the parties each strive for their mutual support and at the end of the 20 year marriage they have the gold bar. In another scenario they enter the marriage with nothing, they strive for 20 years and on the last day the wife inherits a gold bar. In my view it matters little when the gold bar entered the relationship. 80 Patrick Parkinson, ‘Family Property Law and the Three Fundamental Propositions in Stanford v Stanford’ (2013) 3 Family Law Review 80, 91–2. 81 W and W [1997] FamCA 3 (the wife’s care of the husband’s child prior to cohabitation was a pre-cohabitation contribution to the welfare of the family); Hamilton & Thomas [2008] FamCAFC 8 (Bryant CJ, Kay and Thackray JJ) (the wife’s provision of accommodation and food to the husband for several nights each week for the first 15 years of their relationship was a pre-cohabitation financial contribution). 82 For example, Marsh [2014] FamCAFC (Ainslie-Wallace, Murphy and Le Poer Trench JJ): the wife’s care of the children for 10 years after separation comprised a significant contribution to the welfare of the family and comprised an ‘indirect contribution to the husband’s career and thus his ability to make financial contributions’ (Ainslie-Wallace J, [61]). 83 Kane and Kane [2013] FamCA 205 (Kane), [108] (May and Johnston JJ, DCJ Faulks agreeing). 84 Dickons & Dickons (Dickons) [2012] FamCAFC 154 (Bryant CJ, Faulks DCJ, Murphy J); Marsh [2014] FamCAFC 24 (Ainslie-Wallace, Murphy and Le Poer Trench JJ). 85 Between: Vlade Aleksovski Appellant/Husband and Gail Aleksovski Respondent/Wife [1996] FamCA 111 (Aleksovski ).

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What is important is to somehow give a reasonable value to all the elements that go up to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given less than directly proportional weight because of those other elements.86

This approach provides maximum flexibility for family law courts. In particular, it provides scope for recognition of initial and post-separation contributions but also addresses the problem that if a link were to be required between the timing of contributions and the acquisition of a major asset, the property available to be divided may be negligible, resulting in an unfair outcome for the claimant. This would have been the result in Aleksovski, in which the husband had limited ability to speak English and was unemployed at the time of the trial, the wife’s ability to speak English and employment prospects were good, and the wife’s compensation payment of $143,000 received late in their 18-year marriage made up more than half of the net asset pool of $240,000.

14.3.1 Initial contributions In his dissenting judgment in Money,87 Fogarty J articulated what became known as the ‘erosion principle’, to the effect that an initial contribution of property can be eroded by the offsetting contribution of the other spouse during the course of the marriage. While this approach was subsequently approved and applied in other Full Court cases,88 there was some uncertainty regarding whether it is the passage of time,89 or the contributions of the other spouse,90 or both of these,91 that have the eroding effect. It became more common92 to see courts applying the approach of the Full Court in Pierce:93 In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.94

Pierce abandoned the language of ‘erosion’ and looked at the initial contribution in the light of the circumstances of the case. However, some uncertainty still surrounded the extent to 86 ibid., [90] (Kay J).’ 87 In the Matter Of: Mark John Money Appellant/Husband and Jennifer Anne Money Respondent/Wife [1994] FamCA 54, [9]–[10](Fogarty J) (Money). 88 Fogarty J’s approach was expressly approved by the Full Court (Barblett DCJ, Finn and Butler JJ) in In the Marriage Of: Witson Theodore Way Appellant/Husband and Shirley Jean Way Respondent/Wife [1995] FamCA 28 and was applied in Between: Peter Sinclair Bremner Appellant/Husband and Sandra Sylvia Mary Bremner Respondent/Wife Appeal [1994] FamCA 116. 89 As suggested by Baker and Rowlands JJ in Aleksovski [1996] FamCA 111. 90 As Fogarty J’s articulation of the principle in Money [1994] FamCA 54, [9]–[10] seems to suggest. 91 For example, In the Marriage of CP and TL Lee Steere (Lee Steere) (1985) 10 Fam LR 431, 443 (Fogarty Maxwell and Nygh JJ). 92 For example, Agius & Agius [2010] FamCAFC 143, [162] (Bryant CJ, Coleman and O’Ryan JJ); Davida & Davida [2011] FamCAFC 38 (Finn, O’Ryan and Ainslie-Wallace JJ). 93 Pierce & Pierce (Pierce) [1998] FamCA 74 (Ellis, Baker and O’Ryan JJ). 94 ibid., [28].

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which there needed to be a causal link between the particular contribution and the asset— for example, improving a property brought into the marriage by one’s partner. Recently, the Full Court made clear in Dickons95 (in which the value to be attached to the wife’s initial contributions was in issue) that while ‘regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship’ a causal link ‘between contributions with their asserted financial “product” or “value”’ is not required.96 After referring to Aleksovski to support this approach, the Court observed: Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallet [97] at 640–641 ‘where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property’ or is it, for example, a union where parties lived very separate domestic and financial lives?98

The Full Court’s emphasis on consideration of the circumstances of the particular case, including the parties’ financial arrangements during their relationship, was consistent with the HCoA’s approach in Stanford handed down three months later. More recently, a differently constituted Full Court allowed a husband’s appeal in Linch & Linch,99 partly on the basis that the inadequate reasons given by Federal Magistrate Foster ‘creates significant doubt as to the weight his Honour afforded to the husband’s initial contributions’.100 The initial contribution in question was a property that the husband had at the commencement of the parties’ six-year (so reasonably short) cohabitation. The case indicates that, in appropriate circumstances, initial contributions still have relevance.

14.3.2 Post-separation contributions Full Court case law in relation to property acquired after separation indicates a similar shift towards an approach focusing on the particular circumstances of the case, without application of tests that risk pre-determining the outcome.101 95 Dickons [2012] FamCAFC 154 (Bryant CJ, Faulks DCJ, Murphy J). 96 ibid., [14]. 97 Mallet v Mallet (Mallet) (1984) 156 CLR 605. 98 Dickons [2012] FamCAFC 154, [21]. 99 Linch & Linch [2014] FamCAFC 69 (Finn, Strickland and Le Poer Trench JJ). 100 ibid., [49]. 101 Dewar, ‘Contributions Outside Marriage’, paper delivered at the 10th National Family Law Conference, Melbourne, 16–20 March 2002, p 12 identifies two further, less controversial scenarios: (1) where there are postseparation contributions but no post-separation assets (which will be covered by Kowalski (1991) 16 Fam LR 235, so that all contributions, including post-separation, will be taken into account), and (2) where there are postseparation assets and post-separation contributions (which will be covered by In the Marriage of Jacobson (1988) 12 Fam LR 828 to the effect that it is relevant when dividing post-separation assets to consider post-separation contributions).

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This was evident in Marsh,102 decided post-Stanford by the Full Court in early 2014. Marsh involved a wife’s appeal against orders of Federal Magistrate Monahan awarding her 30 per cent of the husband’s superannuation interest and 40 per cent of the parties’ nonsuperannuation assets due to the husband’s role in significantly increasing the asset pool in the 10 years following separation while she looked after their three children (aged about 17, 14 and 10 at separation). Allowing the appeal and remitting the matter for re-heading, the Full Court concluded that Monahan FM had erred in undervaluing the wife’s contributions to the welfare of the family and indirectly to the asset pool (by caring for the children, thus freeing up the husband to generate a high income). Specifically, Ainslie-Wallace J saw as ‘plainly wrong’103 the FM’s treatment of the husband’s post-separation contributions as being in a separate category from contributions made during the marriage, which the parties agreed were equal: The Federal Magistrate’s acceptance of the husband’s proposition that in some way the increase in and acquisition of the property after separation should in some way be segregated from consideration neglects the continuing indirect financial contribution of the wife to the husband’s earning capacity, commenced during the marriage and continuing to date of trial.104

Justice Murphy (who had been on the bench in Dickons), cited Kay J in Aleksovski, and similarly concluded that: The expression ‘post-separation contributions’ has, of course, been used widely in many authorities within the context of discussions about the assessment of contributions. But, importantly, it is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh the nature, form and characteristics of all contributions across the whole of the period under consideration.105

Before Marsh, two main approaches had been evident in the case law. The first was the ‘nexus’ approach, which required establishment of a connection between property acquired by the owner spouse post-separation and contributions made by the non-owner spouse (such as taking on a homemaker and parenting role post-separation and so freeing the other spouse to earn an income—an indirect non-financial contribution to property for section 79(4)(b)). The second approach was the Aleksovski approach, which did not require a nexus between contributions and property, although the circumstances in which property was acquired after separation and the fact that one party has contributed more to it ‘may weigh heavily in the exercise of discretion’.106 The 2000 Full Court case of Farmer and Bramley107 provides an example of both approaches being applied: the ‘nexus’ approach in

102 Marsh [2014] FamCAFC 24 (Ainslie-Wallace, Murphy and Le Poer Trench JJ). 103 ibid., [67] (Ainslie-Wallace J). 104 ibid., [62] (Ainslie-Wallace J). See also Murphy J, [104]. Le Poer Trech agreed with the reasons of Ainslie-Wallace J and Murphy J, but also considered that the FM judgment contained errors of law in relation to his treatment of the s 75(2) factors ([155]). 105 ibid., [107] (Murphy J). 106 Farmer and Bramley [2000] FamCA 1615. 107 ibid.

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the dissenting judgement of Guest J, and the Aleksovski approach in the majority judgments of Finn J and Kay J. In Marsh, Aleksovski was clearly the preferred approach. Movement away from treatment of initial and post-separation contributions as special categories is less likely to obviously predetermine the outcome in favour of the party making that contribution, and underlines the breadth of judicial discretion.

14.4 Breadwinner contributions in high asset cases A further area in which there appears to be recent movement away from special rules is that small category of cases involving assets in the very high range generated as a result of the ‘special skill’ of one of the parties (invariably the husband). Specifically, until recently significant wealth accumulated through entrepreneurial business activity (sometimes referred to as ‘business acumen’ or ‘special skills’ by the family law courts) tended to be viewed as a product of the husband’s or male partner’s skill, rather than the result of a combination of factors, including good luck and the substantial responsibility typically taken on by the wife in raising the children, running the home and supporting her partner’s goals.108 In practical terms, the operation of the doctrine of ‘special skills’ operated to limit the notion of the marriage partnership as ‘a social and economic unit of equals’109 in high asset cases. This was particularly evident in some Full Court cases decided in the 1990s. However, the application of the doctrine of special skills has always been uneven. Recently, there has been a shift away from the notion of special skills for the reason that it is likely to ‘predispose the outcome’ and that is an unauthorised fetter on the requirement that the court assess contributions in every case—an approach consistent with the HCoA’s decisions in Mallet and most recently in Stanford (Chapter 13) Yet the ‘case by case’ approach now preferred still offers opportunity for recognition of special contributions, widely defined, so the issue of when and to what extent this recognition will occur is still a ‘live’ one. Whether a contribution is recognised as ‘special’ or not continues to have much to do with the judicial values, as the family law courts have long recognised,110 particularly whether or not the judge deciding the case inclines towards a partnership or an individualistic approach.

14.4.1 The doctrine of ‘special skills’ The foundation for recognition of special contributions was laid in the HCoA’s decision in Mallet, particularly the judgments of Wilson J and Mason J, which have been interpreted to support the view that in every case ‘[t]here is a requirement to undertake an evaluation of the respective contributions of the husband and the wife’.111 This is despite the subsequent decision of Norbis, in which the minority in Mallet became the majority, warning against 108 See further Lisa Young, ‘Sissinghurst, Sackville, and Special Skill’ (1997) 11 Australian Journal of Family Law 268. 109 In the Marriage Of: Renata Ferraro Appellant/Wife and Ruggero Ferraro Respondent/Husband [1992] FamCA 64, [207] (Ferraro). 110 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, 518 (Mason and Deane JJ) (Norbis). See also SL and EHL [2005] FamCA 132; Bulleen & Bulleen [2010] FamCA 187, [24]; Smith & Fields [2012] FamCA 510. 111 JEL and DDF [2000] FamCA 1353 (Holden and Guest JJ, Kay J agreeing).

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overzealous attention to the assessment of contributions,112 suggesting some tension between HCoA views in the 1980s on the overarching issue of the appropriate approach to assessing what will often be very different contributions made by the parties. As discussed at 13.5.1.2, the courts have trodden a fine line between assessing contributions and acknowledging that different contributions may be valued equally in the context of a partnership over many years during which assets are accumulated. The first clear recognition of ‘special skills’ began in Whiteley,113 in which the contributions of Australian painter Brett Whiteley were valued more highly than those of his wife Wendy (70:30, with an additional adjustment in her favour of 2.5 per cent for the section 75(2) factors). Justice Rowlands found that Wendy Whitely ‘was indeed an inspiration to her husband in his creative activities … she assisted in enlarging his thought or feeling and so aided or encouraged his artistic scope’, but that ‘[a]ll that having been said his work was, in the ultimate, his work … it is clear that the husband, because of his special skill as an artist, has made by far and away the major contribution to the substantial assets the parties now have’.114 It was in Ferraro115 in 1992 that the doctrine of special skills became more clearly established—a somewhat surprising outcome given the Full Court’s emphasis throughout on ‘the social and economic partnership of marriage’.116 Ferraro involved a traditional Italian marriage of 27 years, during which the husband eventually became a successful property developer, compiling business assets of $12 million while the wife looked after the home and the couple’s three children almost single-handedly and supported her husband’s business activities in other ways, including by acting as a company director (in order to fulfil the statutory requirements at the time, but exposing her to potential personal liability in the event of insolvency). While expressing grave concerns about the difficulties involved in evaluating homemaker and breadwinner contributions (particularly the problem that this tended to result in an undervaluation of the homemaker role), and acknowledging that business losses but not gains were expected to be shared equally,117 the Full Court concluded that the husband’s contributions were outstanding in a way that the wife’s were not, justifying a division of property 37.5 per cent to the wife and 62.5 per cent to the husband. The Court thus increased the amount awarded to the wife by seven per cent, from the 30.5 per cent originally awarded by the trial judge. In doing so, the Full Court in Ferraro noted the tendency in the reported cases involving high assets to view business acumen as a ‘special skill’, and saw this as the explanation for cases in which husbands with substantial business assets usually received more than 50 per cent of the assets (usually about 70 per cent). The Court conceded that, apart from generation of assets in the high range, ‘[t]here does not appear to be any reason in principle or logic why those business skills should be treated differently from the high level of skill 112 113 114 115 116 117

Norbis [1986] HCA 17; (1986) 161 CLR 513, 524 (Mason and Deane JJ). In the Marriage of Whiteley, B and Whiteley, WS (1992) FLC 92-304 (Whiteley). ibid., 79,299. Ferraro [1992] FamCA 64. ibid., [117] (Fogarty, Murray and Baker JJ). ibid., [246].

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by a professional or trade person such as a surgeon, lawyer or electrician’,118 but nevertheless went on to recognise Mr Ferraro’s contribution on that basis. In contrast, the Court viewed Mrs Ferraro’s role as a homemaker and mother as ‘outstanding’ but not as amounting to any demonstration of ‘special skill’. It was clear from this analysis that the ‘special skills’ approach was going to be more applicable to breadwinners than homemakers. Less clear was the question of exactly what it is that gave a husband who made a lot of money through his business acumen an extra share—was it the fact of a lot of money being made,119 or the nature of the skill applied? These issues were addressed but not consistently answered in subsequent cases, in which Full Court views varied markedly,120 culminating in JEL and DDF121 and Figgins.122 In essence, JEL and DDF applied a wider notion of ‘special contribution’ (although excluding ‘windfalls’) to a long marriage during which the parties’ wealth was accumulated (reflecting an ‘individualistic’ approach). In Figgins, involving a short marriage during which the husband received a large inheritance (thus determined to be a ‘windfall’ rather than a special contribution), a differently constituted Full Court questioned the operation let alone the extension of the doctrine: We are troubled that in the absence of specific legislative direction, courts consider they should make subjective assessments of whether the quality of a party’s contributions was ‘outstanding’. It is almost impossible to determine questions such as: Was he a good businessman/artist/surgeon or just lucky? Was she a good cook/ housekeeper/entertainer or just an attractive personality? We think it invidious for a judge to in effect give ‘marks’ to a wife or husband during a marriage. We think that this doctrine of ‘special contribution’ should, in an appropriate case, be reconsidered.123

Figgins reflected a modified partnership approach: the outcome was to re-exercise the trial judge’s discretion to award wife the $2.5 million she asked for (about 10 per cent of the asset pool, or 30 per cent of its increase in value between the time of the inheritance and the trial). While the Court said that ‘[i]n our view the wife is clearly entitled to receive more than $2.5 million’,124 the duration of the marriage and the timing and manner in which the property was acquired went against the notion of marriage as a partnership involving equal sharing, although exactly how the end result was calculated remained unclear. 118 ibid., [117]. 119 As argued by Young, above n 108. 120 For example, In the Matter Of: Russell Stuart Mclay Appellant/Husband and Susan Jeanette Mclay Respondent/ Wife  [1996] FamCA 29; In the Matter Of: Dawn Lynette Stay (Appellant/Wife) and Graeme Bruce  Stay (Respondent/Husband) [1997] FamCA 20. 121 JEL and DDF [2000] FamCA 1353. 122 Figgins & Figgins [2002] FamCA 688 (Figgins). 123 ibid. (Nicholson and Buckley JJ; Ellis J agreeing that the appeal be allowed but for different reasons and with a less generous outcome to the wife.) In so holding, the Full Court was influenced by the 2001 ruling of the English House of Lords in White v White [2001] 1 AC 595, in which Lord Nicholls considered that, before making final orders, a judge should check their provisional orders against ‘the yardstick of equality’, and give reasons for departure from equal division of property. There has, however, since been a retreat from White, first in high asset cases and more recently in cases involving pre-nuptial agreement (although not binding in England and Wales): Rob George, Ideas and Debates in Family Law, Hart Publishing, Oxford, 2012, chapter 6. 124 Figgins [2002] FamCA 688, [139] (Nicholson CJ and Buckley).

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14.4.2 Retreat? After JEL and DDF and Figgins, uncertainty surrounded whether the doctrine of special skills was still alive and well. If the doctrine was alive and well, how large did the asset pool have to be before equal division would be arguably inappropriate? And was the doctrine limited to contributions resulting in high financial assets or did it really extend more broadly to other ‘special contributions’? The subsequent first instance decisions of Warnick J in SL and EHL125 in 2005 and Cronin J in Bulleen126 in 2010 suggested that, at least in the more straightforward case involving high assets accumulated during long marriages, Figgins was resulting in a shift away from detailed contributions assessment towards an equality-based (partnership) approach. A notable aspect of these cases was their discussion of the relevance of judicial values to the qualitative assessment of contributions (and family law decision making more broadly). For example, in SL and EHL, Warnick J identified ‘partnership’ and ‘individualistic’ approaches, while effectively sidestepping the ‘whirlpool’127 he saw by applying an equality principle. In contrast, in 2012 in Smith & Fields128 (on appeal to the Full Court at the time this book went to press) Murphy J struck something of a compromise between conflicting Full Court approaches. Justice Murphy did not like the term ‘special contributions’ as it suggested a fettering of the court’s wide discretion and a presumptive approach, which was contrary to Mallet. However, in the course of assessing contributions, ‘[s]hape can be given to that task, in my view, by looking at the nature, form, characteristics and origin of the property comprising the “property of the parties or either of them”’.129 As a result, there was still scope for special contributions to be recognised. This was illustrated in Smith & Fields, which involved a 29-year marriage, during which the parties had three children and accumulated assets of over $30 million as a result of a family construction business. The wife’s contributions had been mainly to the family and the husband’s to the business, but the business was established with their joint capital, the wife was a director and equal shareholder in the corporate structures underpinning it, and it was marketed as a family business. Indeed, the union was described as one in which ‘two individual lives have merged into a marriage partnership with a commercial manifestation’.130 Justice Murphy, however, concluded that applying his suggested approach ‘renders it just and equitable that any assessment of those contributions should favour the husband’,131 ‘by reference in particular to the ingenuity and stewardship which the husband has brought to the business outside of the other contributions made to the business by each of the parties’.132 As a result, contributions were assessed as 60 per cent and 40 per cent respectively in the husband’s favour,133 which would see the husband retaining 125 SL and EHL [2005] FamCA 132. 126 Bulleen [2010] FamCA 187; Richard Ingleby, ‘Hans Christian Anderson, Bulleen and the Emperor’s New Clothes’ (2010) 24 Australian Journal of Family Law 272. 127 SL and EHL [2005] FamCA 132, [250]. 128 Smith & Fields [2012] FamCA 510. 129 ibid., [26]–[29]. 130 ibid., [48]. 131 ibid., [81]. 132 ibid., [82]. 133 ibid., [83].

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property valued at between about $19.4 million and $23.9 million and the wife between $12.9 million and $15.9 million. Subsequently in Kane,134 the Full Court agreed with Justice Murphy’s concern ‘that the notion of “special contributions” necessarily predisposes matters to an outcome that may not otherwise be available upon a proper assessment of all the contributions’.135 In that case the trial judge had apportioned the parties’ contributions to a superannuation fund twothirds to the husband and one-third to the wife, on the basis that the marked increase in the value of the fund over a short period was due to the husband’s business acumen and successful investment. This was even though the funds invested were jointly owned by the parties and accumulated over their 30-year marriage. In allowing the wife’s appeal and remitting the matter for re-hearing, the Full Court made a number of observations about the uneven operation the doctrine, including its application to contributions resulting in ‘significant financial results’136 while investment losses are usually expected to be shared, and the role of luck in financial success: We would pause here to observe the obvious, that had this investment decision caused the loss of a substantial part of the parties’ superannuation funds it is unlikely that the husband would have been claiming such a contribution. It is also notable that the husband did not have any professional qualifications nor did he have any special knowledge of the business in which he had invested although it must be acknowledged, the husband had been a successful business man. The husband took a calculated risk with the parties’ money, which fortunately proved correct.137

While the result in Kane was that the matter was remitted for re-hearing, and the Full Court made clear that contributions assessment can result in one party’s contributions being valued more highly than the other party’s, the key message to emerge from the case is that this conclusion must arise from the court’s assessment of the particular circumstances without the influence of any ‘doctrine’ suggesting that particular contributions will (or will not) be recognised particularly highly. In this respect, Smith & Fields and Kane are consistent with Mallet’s emphasis on the assessment of contributions in every case and with Stanford’s emphasis on a principled application without assumptions as to the outcome of section 79/90SM, although there would still seem to be room for the application of the warning in Norbis regarding overzealous assessment of contributions138 and which was arguably insufficiently heeded in Smith & Fields. Indeed, Smith & Fields illustrates that, even if the doctrine of ‘special skills’ has been abandoned as the decision of Faulks DCJ in Kane and the Full Court in Hoffmann & Hoffmann, considered in the next paragraph, suggest),139 the emphasis in its place on ‘an Kane [2013] FamCA 205 (Faulks DCJ, May and Johnstone JJ). ibid., [108] (May and Johnston JJ, DCJ Faulks agreeing). ibid., [10] (Faulks DCJ). ibid., [105] (May and Johnstone JJ); on the role of luck see also Figgins [2002] FamCA 688, [57] (Nicholson CJ and Buckley J). 138 Norbis [1986] HCA 17; (1986) 161 CLR 513. 139 ‘To the extent that the trial judge believed himself to be obliged by authority to determine the division of the property of the parties by reference to some doctrine acknowledging “special skills” in my opinion, for the reasons set out above, he was mistaken. The Act does not require and in my opinion the authorities do not mandate, any such doctrine and if judgments of the Full Court of this Court might be thought to have espoused such a principle in my opinion, they should no longer be regarded as binding’: Kane [2013] FamCA205, [7] (Faulks DCJ). 134 135 136 137

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analysis of the nature, form and characteristics of the contributions of varying types made by each of the parties’ is likely to have risks for homemakers. The reasoning in Smith & Fields suggests that a supposedly straightforward application of section 79(4)/90SM may be imbued with a subjective element that is not being recognised. Most recently in Hoffman & Hoffman140 the husband, who was self-represented, appealed to the Full Court arguing that Brewster FM had made an error of law in failing to apply the ‘doctrine of special contributions’ in his favour when dividing equally the net asset pool of almost $10 million. The Court held that there was no ‘legitimate guideline’ (13.5.1.2) recognising ‘special contributions’. The Court further held that the value of property did not dictate the exercise of discretion, and that the trial judge’s reasons revealed his experience rather than an impermissible starting point of equality of contributions (13.5.1.2). The Full Court cited with approval an earlier decision of O’Ryan  J in which he referred to the notion of special contributions as a ‘terrible mistake’ and once again emphasised that the court’s task was to consider contributions made in the particular case, although in the end not disturbing the partnership approach adopted  by  Brewster  FM in relation to this 36-year cohabitation during which each party had made significant contributions, four children were raised, and the assets were accumulated: We consider that the true position is, with respect, put correctly and succinctly by O’Ryan J in D & D [2005] FamCA 1462 at [271]: ‘… the notion of special contribution has all been a terrible mistake … what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement’ [emphasis in original]. The task is to make findings as to the nature, form, characteristics and duration of each and all of the contributions made by each of the parties referenced to s 79(4), without adjectival qualification. Thereafter the court must undertake the exquisitely difficult task of assessing how those respective contributions, often of differing types (a task which his Honour referred to below as a comparison of apples and carrots), find expression in qualitative assessments. In the context of a case such as the present one, the duration of the marriage has an important influence upon what evidence is relevant in respect of contributions. There is no need to conduct a minute forensic examination of the details of contributions over many years with each party extolling their own efforts and attempting to diminish the other’s.141

In Hoffman, the notion of special skills was merely viewed as a response of judges who sought to address consistency: ‘[T]here is little doubt that this Court, and indeed judges at first instance, have, from time to time, sought to identify “unifying principles” or “guidelines” designed to address the mischief, and remedy the problems of inconsistency’.142 Whether past Full Courts deciding cases including Ferraro and JEL and DDF took that view (rather than seeing themselves as laying down a ‘legitimate guideline’) is much less clear. The Court’s approach also suggests that not as much has changed following the

140 Hoffman & Hoffman [2014] FamCAFC 92 (Faulks DCJ, Murphy J, Watts J) (Hoffman). 141 ibid., [61]. 142 ibid., [42].

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HCoA’s decision in Stanford as might have initially been thought, at least in the more general run of cases.

14.5  Superannuation The treatment of superannuation in Australian family law raises specific issues relevant to all stages of the section 79/90SM process due to its legislative classification as an asset that is to be ‘treated as property’ (FLA section 90MC) since 2002, combined with judicial concern about how to do this in a way that results in orders that are just and equitable. The most significant case law has arisen in relation to the treatment of superannuation paid in the form of a pension after retirement, which although uncommon is likely to comprise a valuable interest. Judicial discomfort about how best to treat superannuation pensions in their payment phase reflects their special characteristics but also suggests a greater judicial reluctance to view them as property than is evident in relation to other illiquid assets. We begin this section by providing some background on superannuation savings in Australia. This provides the necessary backdrop for considering important legislative changes in 2002 and the way they have subsequently been interpreted and applied.

14.5.1 Increasing significance of superannuation as a ­relationship asset In recent years, superannuation has become an increasingly important benefit of employment, although an interest in a superannuation scheme will typically amount to a more significant financial investment for men rather than women, due to men’s greater and less interrupted participation in paid work after the arrival of children (10.2.2).143 The most recent assessment of superannuation balances, completed in 2011–12 and based on data from the Australian Bureau of Statistics Survey of Income and Housing, showed that: • the average superannuation account balance for women was $44,866, compared to $82,615 for men; • the average superannuation account balance at the time of retirement was $105,000 for women and $197,000 for men • men held around 64 per cent of total superannuation account balances, compared to 36 per cent for women.144 The rising significance and value of superannuation savings is the result of a major policy shift in Australia, beginning in the 1980s, towards compulsory superannuation. The aim was to decrease financial reliance of retirees on the means-tested Age Pension, thus addressing the problem in the future of there being insufficient taxpayers to meet the costs of pensions for retiring ‘baby boomers’ (that is, people born in the ‘baby boom’ 143 See further Australian Human Rights Commission, Accumulating Poverty? Women’s Experiences of Inequality over the Lifecycle, Issues Paper, Australian Human Rights Commission, 2009, pp 4–5, . 144 Ross Clare, ‘An Update on the Level and Distribution of Retirement Savings’, Report, The Association of Superannuation Funds of Australia Limited, Sydney, March 2014, available at .

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between 1946 and 1964, following the Second World War). Compulsory superannuation for private sector employees was introduced in 1983, and under the Australian Government’s ‘superannuation guarantee’, introduced in 1992, employers in most cases were obliged to contribute a set percentage (initially nine per cent but gradually increasing to 12 per cent between 2013 and 2020; the contribution for the 2014–15 financial year is 9.5 per  cent).145 These contributions are in effect deferred wages, which are invested and ultimately paid to the employee on retirement. Depending on the scheme, employees may also be able to make  voluntary contributions. Contributing to a superannuation scheme therefore means that the money used will not be spent on other things that may benefit the family, in order to provide for the employee and his wife or partner in later life. Most recently, the Australian Institute of Family Studies (AIFS) Longitudinal Study of Separated Families (LSSF) Wave 3 involving telephone interviews in late 2012 with 9,028 parents separating after the 2006 amendments (comprising 5,755 members of the original sample (interviewed in late 2008) and a ‘top-up’ sample of 3,273 parents) found that ‘[t]he most common asset was the family home (62%) followed by cash savings (33%), followed by father’s superannuation (30%) and mother’s superannuation (27%)’.146 Empirical research conducted in the late 1990s indicated that superannuation counted, on average, for 25 per cent of divorcing couples’ assets.147 The significance of superannuation as a percentage of total savings will keep increasing over time. However, as just noted, superannuation savings are still accumulated to a greater extent by men than by women. This ‘is not a problem as long as the parties remain married, and as long as superannuation benefits are equitably shared between the parties, but [separation] means that this will not be the case’.148 Women who do not share in their husband’s or partner’s superannuation after relationship breakdown may enter retirement with little or no superannuation in their own name; this goes against the Federal Government’s policy of decreasing reliance on the Age Pension.149 This is a particularly serious economic consequence for women, government, and ultimately the taxpayer, for reasons including that women generally live longer than men.150

14.5.2 The 2002 superannuation reforms Prior to legislative reform in 2002, the interest of a husband in a superannuation scheme at the growth phase (that is, during his working life) was viewed as a prospective, contingent entitlement, and not as ‘property’ for the purposes of FLA section 79, unless he had control

145 Australian Taxation Office, ‘Super Reform—Questions and Answers for Employers: Superannuation Guarantee Rate Rise and Upper Age Limit Removal’, 18 March 2014. 146 Lixia Qu, Ruth Weston, Lawrie Moloney. Rae Kaspiew and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, p 94. 147 John Dewar, Grania Sheehan and Jody Hughes, Superannuation and Divorce in Australia, Working Paper No. 18, Australian Institute of Family Studies, Melbourne, 1999. 148 John Dewar, ‘Property and Superannuation Reform in Australia’ in Mavis Maclean (ed.), Making Law for Families, Hart Publishing, Oxford, 2000, p 56. 149 ibid. 150 According to the Australian Bureau of Statistics, a girl born in 2010–12 can expect to live 84.3 years and a boy can expect to live 79.9 years: Australian Bureau of Statistics, ‘Life Expectancy at Birth’, 7 November 2013, Catalogue No. 3302.0—Deaths, Australia, 2012, .

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over the fund, as in the case of a self-managed fund.151 Only when the superannuation vested on his retirement (that is, in the payment phase) was it generally regarded as property. As a result, in most cases the court could not divide superannuation interests. The FCoA devised a number of ways for getting around the problem, in particular: • taking superannuation into account as a ‘financial resource’ when dividing other property when the additional factors were considered in the section 79/90SM process (14.6) (that is, offsetting, so that, for example, the wife kept the house or was awarded a larger share of the proceeds of sale and the husband kept his superannuation); • adjourning proceedings until the superannuation vested (that is, on retirement); or • making orders in relation to superannuation to take effect when superannuation vested. 152 None of these options was entirely satisfactory. The ‘offsetting’ approach, for example, depends on there being sufficient property to give the wife to compensate her for loss of her husband’s superannuation, and involves treating superannuation as a ‘financial resource’ rather than ‘property’, which had the result that ‘[i]n many instances, superannuation was not adequately valued when adjusting it against other property’.153 Adjournment or making orders to take effect in the future were less practical options when retirement was not imminent.154 Research conducted in the late 1990s, and thus prior to the superannuation splitting amendments, by John Dewar, Grania Sheehan and Jody Hughes on how superannuation was divided indicated that superannuation was regarded by divorced men and women as a ‘non-domestic asset’ rather than a ‘domestic’ asset, and was considered when property was divided in a large minority (46 per cent) of cases.155 Their findings also suggested that changing the law to allow for superannuation to be split in the growth phase would not necessarily result in superannuation being divided on divorce in all cases. In particular, if the ‘offsetting’ approach remained an option, the parties’ immediate needs might still result in this approach being adopted. There was, though, a possibility that changing the law to allow superannuation to be divided might have a ‘consciousness-raising’ effect, with the result that, even where it was not split, separating couples might be more likely to consider superannuation when dividing their property, resulting in fairer property division outcomes overall. In the event, it seemed that the Government’s aims in implementing the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth), effective from

151 In the Matter Of: Susan Elizabeth Wunderwald Appellant and Clyde Edward Wunderwald Respondent [1992] FamCA 1. 152 See further Gary Watts, Stephen Bourke and Michael Taussig, Super Splitting on Marriage Breakdown, CCH Australia, North Ryde, 2002, pp 57–61. 153 ibid., p 58. 154 The best-known example of lengthy adjournment was In the Marriage of O’Shea (1987) 12 Fam LR 537, in which the husband’s superannuation comprised the main asset in the pool and the Court adjourned proceedings for 23 years until his retirement so that the wife could obtain a share. 155 Dewar, Sheehan and Hughes, above n 147.

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28 December 2002, were both to encourage superannuation splitting, and to achieve more equitable property outcomes in this broader sense.156 Following the insertion of FLA Part VIIIB via the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth), superannuation is now ‘to be treated as property’ (FLA section 90MC) for the purposes of paragraph (ca) of the FLA section 4 definitions of ‘matrimonial cause’ and ‘de facto financial cause’ (the latter following the de facto amendments that came into effect on 1 March 2009, with the exception of de facto couples in  Western Australia (WA): 2.4.1.2), and thus in FLA section 79/90SM proceedings. The object of Part VIIIB is to allow certain payments (splittable payments) in respect of superannuation interests to be allocated between spouses or de facto partners, by agreement or court order (section 90MA). While superannuation can thus be split pursuant to a financial agreement (14.7)157 our focus now is on the two new powers given to the courts in 2002, namely to make orders to (1) split superannuation interests; and (2) flag superannuation interests.158 Specifically, a Part VIIIB splitting order allows the court to split one party’s superannuation interest between the parties in whatever proportion it thinks appropriate (subject to all the same provisions as other section 79/90SM applications, including assessment of contributions).159 When an interest in a superannuation fund is split, this can take the form of a specified amount, an agreed method for arriving at a specified amount, or a percentage to be applied to the splittable payment. When there is a split, the share of the non-member spouse (typically the wife) will be paid when she meets her own condition of release (usually, on retirement) and in some circumstances may be transferred into a new account in her name in the same superannuation scheme or transferred or rolled over to another fund (interest splitting). The benefit of interest splitting is that it ‘lets the nonmember spouse access entitlements independently of the member spouse’.160 A flagging order operates like an injunction, preserving the superannuation interest by preventing the trustee of the superannuation fund from paying out the interest pending an order by court or agreement by parties. These orders are binding on the trustee of the fund (who is a third party to section 79/90SM proceedings; on the possible constitutional issues raised see Chapter 2), with responsibilities of trustees being set out in both the FLA and the Superannuation Industry (Supervision) (SIS) laws.161 The situation is made more flexible (and complicated) by the fact that, as was made clear by the Full Court in Hickey,162 the new Part VIIIB powers operate in addition to the previous approach of taking superannuation into account when dividing other property (the ‘offsetting’ approach, with the advantage that superannuation interests are 156 Explanatory Memorandum, Family Law Legislation Amendment (Superannuation) Bill 2001 (Cth), ‘Specification of desired objective’. 157 See further on superannuation splitting under financial agreements: CCH International, Australian Master Family Law Guide, 6th edn, [18-180]–[18-220]. 158 See further Watts, Bourke and Taussig, above n 152. 159 ibid., chapter 8. 160 Attorney-General’s Department, Australian Government, Superannuation Splitting Laws, undated, . 161 Watts, Bourke and Taussig, above n 152, p 59. 162 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Hickey) [2003] FamCA 395, [71], [80] (Nicholson CJ, Ellis and O’Ryan JJ).

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more likely to be properly valued now). As suggested earlier, the ‘offsetting’ approach may be still be preferable for a homemaker who is not in employment that requires her employer to make superannuation contributions,163 and is not in a position to contribute to a superannuation fund herself, with the result that if a splitting order were made, her interest in the fund would not grow very much over the years. Also relevant here is the general rule that superannuation savings are not accessible until retirement, except on a narrow range of grounds including ‘severe financial hardship’, which may be relevant in this context but would involve her making a convincing case to the trustee of her fund.164 The tests (which differ depending on the age of the applicant and whether she is over or under ‘preservation age’, being the age at which superannuation benefits can be accessed) are stringent, require more than that the applicant is facing loss of her housing if she cannot access her superannuation, and the financial gain of early access is limited. For example: To satisfy the ground of ‘severe financial hardship’ under regs 6.01(5)(a) and 6.01(5A) of the SIS Regulations, applicants (if under preservation age) must prove that they: • have been receiving ‘Commonwealth income support payments’ continuously for the past 26 weeks; • were still in receipt of those payments at the date of the written evidence provided in ­support of the application (which must not be more than 21 days prior to the ­application); and • are unable to meet reasonable and immediate family living expenses. If these requirements are satisfied, the trustee may release a lump sum of between $1,000 and $10,000.165

Indeed, keeping the house, or being awarded a greater share of the equity in it, is likely to be more attractive to both parties than retaining or gaining a share of a superannuation interest in the growth phase, although the likely preference of this for a wife who has the children living with her has been more emphasised.166 However, as noted earlier, this option is available where there is enough other property in the pool(s) to offset against the superannuation. Where superannuation comprises a significant proportion of the asset pool(s), a splitting or flagging order under FLA Part VIIIB is more likely to be sought. Research findings from a study by Grania Sheehan and colleagues involving a national survey of spouses who had separated after the 2002 superannuation reforms were broadly

163 The Superannuation Guarantee does not apply, for example, to employees paid less than $450 per calendar month, or employees paid to do work of a domestic or private nature for not more than 30 hours a week: Australian Taxation Office, Australian Government, Employers Super: Working Out if You Have to Pay Super, 12 April 2013, . 164 Centrelink is responsible for approving applications for early access to superannuation, on compassionate grounds. See further Department of Human Services, Australian Government, Early Release of Superannuation, 27 March 2014, . 165 Australian Government, Australian Law Reform Commission, Family Violence and Commonwealth Laws – Improving Legal Frameworks, ALRC Report 117, ALRC, Sydney, 2012, , 19. Superannuation Law, Severe financial hardship, [19.64]–[19.66]. 166 Jenni Millbank, ‘“Hey Girls, Have We Got a Super Deal for You”. Reform of Superannuation and Matrimonial Property’ (1993) 7 Australian Journal of Family Law 104; Kristie Dunn, ‘Splitting the Difference: Superannuation, Equality and Family Law’ (1999) 12 Australian Journal of Family Law 214.

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consistent with these observations.167 They found that participants were better informed than in the late 1990s of their own and their spouse’s superannuation interests and were more likely (80 per cent compared to 46 per cent pre-reform) to report that superannuation had been considered when making their property settlements (usually taking it into account when dividing other property (63 per cent) and less often by splitting (17 per cent)).168 The most common pattern when superannuation was taken into account was for the husband to keep his superannuation and the wife to keep the family home.169 The researchers also found that when superannuation was split, women in wealthier marriages gained most, increasing their percentage share of what the researchers called ‘non-basic assets’ and marginally decreasing their share of basic assets. More generally, the mean share of property received by wives had not changed post-reform,170 suggesting that while superannuation was now more likely to be considered this was not leading to more generous outcomes for women. Sheehan and colleagues’ analysis suggested that in broad terms the 2002 reforms had been successful in encouraging consideration of superannuation in property settlements (referred to as ‘distributive justice’) although less so in encouraging splitting (the ‘mechanistic objective’ of the reforms) or in achieving more generous outcomes for women (the ‘instrumental’ object of the reforms). More recently, analysis of LSSF Wave 3 data similarly found that ‘about one-third of parents indicated that the net assets taken into account included at least one parent’s superannuation’,171 although it was also the case that one-third of the parent sample comprised de facto partners,172 who had separated between July 2006 and December 2007,173 and thus prior to the 2009 amendments bringing financial disputes between separating de facto partners within the FLA and the superannuation splitting provisions (which do not exist under state legislative regimes: 4.2). Importantly, the 2002 reforms do not solve two other significant problems: (1)  complexity surrounding the valuation of superannuation interests, particularly regarding ‘defined benefit’ interests; and (2) ascertaining how much of ‘his’ superannuation interest ‘she’ is entitled to, which requires the application of section 79/90SM (including the section 75(2)/90SF(3) factors). These problems are often evident in the litigated cases.

14.5.3 Valuation While family law courts are often required to value complex assets (13.3.3), the superannuation context raises particular issues and challenges. Specifically, the FLA requires that superannuation be valued before a splitting order is made, and if the Family Law (Superannuation) Regulations 2001 (Cth) (FLSR) provide for a method of valuation, that approach must be followed (section 90MT(2)(a)). When the regulations do not provide for a method of valuation (as in the case of self-managed 167 Grania Sheehan, April Chrzanowski, and John Dewar ‘Superannuation and Divorce in Australia: An Evaluation of Post-Reform Practice and Settlement Outcomes’ (2008) 22 International Journal of Law Policy and the Family 22. 168 ibid., 221–2. 169 ibid., 226. 170 ibid., 223. 171 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 146, p 94. 172 ibid., p 8. 173 ibid., p 6.

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funds)174 ‘the court must determine the value of the interest by such method as the court considers appropriate’ (section 90MT(2)(b)). When a splitting order is not made, a different approach to valuation may be taken (for example, a figure agreed on by the parties). The approach taken to valuation depends on the type of superannuation interest. There are two main categories: ‘accumulation interests’ and ‘defined benefit interests’. Accumulation interests are most common. They are basically lump sum interests where the benefit is related directly to the level of contributions and the investment performance of the fund over the period of membership. Accumulation interests are thus ‘a bit like a bank account, except that because of preservation requirements you can’t access the balance until a specific event happens—known as a “condition of release”, such as retirement’.175 In contrast, defined benefit interests provide members with a specified benefit (either lump sum, pension, or combination of the two) based on years of service with an employer and salary levels prior to retirement as well as contributions and investment earnings. Benefits are generally based on a multiple of the member’s final salary. Because of the generous way in which benefits are calculated, defined benefit interests tend to be particularly valuable and also increasingly uncommon due to their cost to employers.176 They are most likely to be held by Australian public servants, for example judges, members of the defence force, and also some older university employees.177 Valuation of accumulation interests is relatively straightforward: the value of the member’s interest will be stated in their latest membership statement. Defined benefit interests raise more difficult valuation issues. This is because the final benefit received on retirement depends on a number of future events—for example, years of service and final salary level prior to retirement. It is usually very hard to value the interest in a defined benefit scheme at the time of relationship breakdown, as the value of the benefit cannot be known until retirement. An actuarial calculation of the present value of the interest is necessary. The FLSR prescribe a method of calculation to assist with this. The AttorneyGeneral may also approve special methods for valuing funds.178 Since the 2002 reforms, a central issue has been the treatment (including the valuation) of defined benefit schemes in their payment phase, especially defined benefit pensions, which will often comprise a particularly valuable income stream. In contrast, the same level of concern has generally not surrounded the treatment of accumulation schemes, or defined benefit

174 Family Law (Superannuation) Regulations 2001 (Cth), reg 22(2)(b). 175 Australian Government, Attorney-General’s Department, definition of ‘accumulation interest’ in AttorneyGeneral’s Department, Australian Government, Superannuation Splitting Laws, undated, . See further Attorney-General’s Department, Superannuation & Family Law: A Position Paper, Position Paper, Attorney-General’s Department, Canberra, 1998, chapter 2, which states that since the introduction of the Superannuation Guarantee, the trend had been towards accumulation schemes (84% of superannuation fund members) and away from defined benefit schemes (16% of superannuation fund members). 176 Don Stammer, ‘Defined Super Benefits on the Way Out’, The Australian (online) 28 September 2011, . 177 Attorney-General’s Department, Australian Government, Superannuation Splitting Laws, undated, . 178 FLSR reg 38. See further CCH International, Australian Master Family Law Guide, 6th edn, [118[–[140].

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schemes in their growth phase,179 mainly due to their generally lower value (and, in the case of accumulation schemes, the lesser complexity associated with valuation).180 Concern in relation to defined benefit pensions arises from the fact that a pension is an illiquid asset comprising an income stream. The capitalised value given to that income stream pursuant to the FLSR formula does not necessarily reflect what will happen in the future and so may prove too generous (for example, the formula may assume that the husband will live to age 75 but he dies at age 68). Also, the valuation may not reflect the ‘real value’ of the pension to the parties, which may be less than the value they would attach to liquid assets (14.5.4). Following the 2002 reforms the appropriate treatment of Defence Force Retirement and Death Benefit (DFRDB) pensions in their payment phase has been the subject of several Full Court cases.181 The cases commonly involve a husband who has retired, taking as much of his superannuation as he can as a lump sum and the balance as an indexed annual pension. The pensions have particular features, including that (despite the FLSR requiring they be given a capital value and unlike many other splittable payments) they cannot ever be commuted by the holder to a lump sum payment and so a splitting order can only be in relation to receipt of the pension payments. Courts have also noted two financial drawbacks, namely that the taxation payable on the pension income is not factored into the FLSR formula for valuation and that the holder’s eligibility to receive the Aged Pension will also be reduced.182 Yet it is difficult to see how this situation presents any greater difficulty than the royalty stream in Pope & Pope (13.3.3), in which Justice Ryan regarded the value of the husband’s future royalty streams, arising from his membership of a well-known entertainment group, as ‘sufficiently reliable’ to be included as property for section 79, despite there being no accepted valuation for these.183 After all, a DFRDB pension gives the holder ‘guaranteed receipt of an indexed pension on a periodic basis for life’ with the regulations providing

179 Although a different approach was taken in BAR v JMR [2005] FamCA 1097, which involved a valuable interest in a defined benefit scheme in its growth phase. Young J observed that ‘there are many uncertainties and contingencies both with the valuation process and generally with facts in evidence on superannuation’. As a result, Young J in essence took the approach of making a splittable payment at the payment phase rather than the growth phase (by flagging the husband’s interest and ordering a percentage split in the wife’s favour of 35% when the benefit was paid rather than taking the more usual approach of ordering that she receive a ‘base amount’ from the husband’s superannuation interest). This approach was at the expense of the general principle that the court should try to achieve a ‘clean break’ when making financial orders (FLA s 81; 13.2.4), and had the associated disadvantages that the wife would receive nothing until the husband’s retirement, the date of which was uncertain and possibly many years away (he was 51 at the date of the hearing). An appeal to the Full Court was dismissed: BAR & JMR [2005] FamCA 1097 (Kay, Holden and Boland JJ)). 180 The appropriateness of treating superannuation as property where its value is relatively small in the context of the value of the other assets was acknowledged by the majority in Coghlan, reported as C & C [2005] FamCA 429 (Coghlan). Early examples of this approach, include DJ and AJ [2006] FamCA 961 (Bryant CJ, Finn and Coleman JJ), and T v T [2006] FamCA 207 (Watts J). In T v T, for example, the parties agreed that the wife’s superannuation interest (valued at $19,600 and in the growth phase) would be treated as property, but were in dispute about the husband’s superannuation interest in a defined benefit scheme that was in its payment phase. The husband’s pension under the scheme at the time of the trial was $91,414.51 gross per annum, and the value of his interest under the FLSR was $1,808, 607.21. 181 Edwards & Edwards [2009] FamCAFC 139 (Finn, Coleman and Cronin JJ). 182 Semperton & Semperton [2012] FamCAFC 132, [159]–[166] (Thackray and Ryan JJ) (Semperton). 183 Pope & Pope [2012] FamCA 204.

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a valuation method.184 Perhaps the answer is that ‘guaranteed income streams are of considerable value’185 and, while uncommon, are more common (including among judges) than royalty interests.

14.5.4 To what extent is superannuation being ‘treated as property’? The second problem identified earlier, namely ascertaining how much of the fund member’s (usually the husband’s or male de facto’s) superannuation interest the wife is entitled to, raises the question: to what extent is superannuation now being ‘treated as property’ in section 79/90SM proceedings, as required by section 90MC? In essence, the answer seems to be: to the extent that this would not be inconsistent with reaching what the court considers a just and equitable outcome. Things began well in 2003 in Hickey,186 a case involving parties with accumulation interests in the growth phase. The Full Court, responding to questions referred to it by Chisholm J by way of a case stated, took a broad view of section 90MC, holding that its effect was to mandate treating superannuation as property in section 79 proceedings and that the same approach should be followed when making orders as applies generally to property settlement orders (Chapter 13).187 Then in 2005 in Coghlan,188 the Full Court determined a case in which the central issue was whether the trial judge had erred by not including the parties’ superannuation interests in the property pool for division. In that case, the husband’s pension entitlement in the payment phase was the parties’ most valuable asset. In a judgment that was ‘confusing and likely to promote uncertainty’,189 a narrower approach was taken by the majority of the Full Court,190 to the effect that superannuation is ‘another species of asset’ which could be listed separately from, or together, with other assets in section 79 proceedings (the majority preferring the ‘separate list’ or ‘two pools’ approach). Yet the Court also said it was still always best to follow the same section 79 approach regarding both lists, in order to ensure that any orders made were ‘just and equitable’, and that ‘the trial Judge has a discretion as to how superannuation interests will be treated in a particular case’.191 Post-Coghlan, uncertainty surrounded the extent of judicial discretion given the majority’s preferred approach. A further question was: why, given that the preferred approach  was to always follow the same section 79/90SM process for superannuation interests and other property, did the Full Court take the view that superannuation is to be treated as ‘another species of asset’? Assistance here was provided by the judgment of 184 Semperton [2012] FamCAFC 132, [66] (May J). 185 ibid., [172] (Thackray and Ryan JJ), discussing HRDW & HSJL [2005] FamCA 676, [46] (Warnick J) and Trott & Trott (also known as T & T [Pension Splitting]) [2006] FamCA 207 (Watts J). 186 Hickey & Hickey & the Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395, (Nicholson CJ, Ellis and O’Ryan JJ) (Hickey). 187 ibid., [75]–[76]. 188 Reported as C & C [2005] FamCA 429 (Coghlan) (Bryant CJ, Finn, Coleman, Warnick and O’Ryan JJ). 189 ibid., [124] (O’Ryan J). 190 Bryant CJ, Finn and Coleman JJ, Warnick J and Ryan J disagreeing with the reasoning but not with the result. 191 Coghlan [2005] FamCA 429, [65] (Bryant CJ, Finn, Coleman).

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O’Ryan J in Coghlan, who, along with Warnick J, disagreed with the majority’s reasoning (but not with the end result). Justice O’Ryan identified beneath the majority’s reasoning an underlying reluctance in superannuation cases involving pensions to treat those income streams as property.192 He was particularly critical of the view expressed by the trial judge (who drew on the earlier decision of Coleman J in Cahill193 holding that a husband’s DFRDB pension should be treated as a financial resource) that the valuation of the husband’s superannuation under the FLSR had an ‘air of artificiality’ about it: there is nothing new about the capitalisation of income streams. It is a wellestablished practice with logical foundation. For example, a party might purchase an annuity for a sizeable lump sum. It would be incongruous if the party’s entitlement ceased to have a calculable value merely because it was an entitlement limited to a periodic payment during the party’s lifetime.194

The underlying reluctance, identified by O’Ryan J, to treat valuable pensions as ‘property’ can be played out in several other ways in the section 79/90SM process. For example, it may result in the court declining to make a splitting or flagging order even when the parties have applied for this.195 The ‘two pools’ approach (which commonly involves superannuation assets comprising one pool and non-superannuation assets comprising another pool, but in the DFRDB pension cases has often involved the pension comprising one pool and the remaining assets (including superannuation) comprising another pool)196 may make it harder for the wife or female de facto partner to establish her contributions to the superannuation as a distinct asset. This is because it effectively represents an ‘asset-byasset’ or ‘combined’ approach as opposed to the ‘global’ approach which is likely to result in a more generous contributions assessment for homemakers (13.5.1.1).197 Also evident is the readiness of courts in cases where no splitting order is sought to take account of the ‘real value and impact of the … pension entitlement, and the effect of the proposed orders in relation to it’,198 consistent with the majority’s approach in Coghlan: We are referring to the fact that notwithstanding that its value according to the regulations may be calculated to be a very significant amount, that superannuation interest may be no more than a present or future periodic sum, or perhaps a future lump sum, the value of which at the date of receipt is unknown.199

Most obviously, Coghlan opened judicial discretion on whether superannuation is to be treated as property or another species of asset, spawning a variety of approaches in subsequent cases,200 and the resulting confusion and uncertainty in the law foreshadowed 192 As is also suggested by Trott & Trott [2006] FamCA 207 in which Watts J discussed cases in which the preferred approach has been departed from and adhered to by Coleman J, invariably to no advantage to the wife in terms of the final outcome. 193 Cahill v Cahill (Cahill) [2003] FamCA 172. 194 Coghlan [2005] FamCA 429, [132]. 195 For example, DJ and AJ [2006] FamCA 961 (Bryant CJ, Finn and Coleman JJ). 196 For example, PJM & STM [2005] FamCA 1245. In Craig & Rowlands [2013] FamCAFC 45, [120] Strickland J saw this approach as ‘quite appropriate’ and ‘helpful’. 197 For example, DJ and AJ [2006] FamCA 961 (Unreported, Bryant CJ, Finn and Coleman JJ, 4 October 2006). 198 Semperton [2012] FamCAFC 132, [85] (May J). 199 Coghlan [2005] FamCA 429, [68]. To similar effect see Cahill [2003] FamCA 172 and more recently Edwards & Edwards [2009] FamCAFC 139. 200 Early examples included In the Marriage of BAR & JMR [2000] FamCA 386 (BAR & JMR); AB v GB (No 2) [2005] FMCAfam 402; PAA v RJA [2006] FMCAfam 80; Trott & Trott [2006] FamCA 207 (Watts J).

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by O’Ryan J in Coghlan. Thus even before Stanford, there appeared to be a shift away from any preferred approach in the case law.201 Anecdotally, it seems that in practice a common approach is to first follow a ‘two pools’ approach in relation to superannuation (assessing contributions and considering the section 75(2)/90SF(3) factors in relation to each pool), then using a ‘one pool’ approach to cross-check the justice and equity of the proposed outcome. However, it also seems that another common approach is to restrict section 75(2)/90SF(3) adjustments to the nonsuperannuation pool, at least in cases where parties are a long way from retirement. In cases involving accumulation schemes, this fails to compensate the non-holder for the impact of her lower earning capacity on her ability to accumulate further superannuation savings. When contributions to superannuation have preceded the parties’ relationship or have been made after separation, the Full Court held in M v M in 2006 that standard approaches to assessing contributions will apply (14.3).202 More debate (and case law) has continued to surround the treatment of defined benefit interests, particularly pensions in the payment phase. Following Semperton203 (decided before Stanford) and Craig & Rowlands204 (decided after Stanford) it is clear that the general position holds (there is no preferred approach to dealing with superannuation) although there is a preference for listing the pension interest separately from other assets, including other superannuation interests. Beyond this, three approaches are evident in the cases: 1. contributions assessment at capitalised (FLSR) value (that is, the amount expected to be received in the future, discounted to express current value accurately), followed by section 75(2) adjustment in limited circumstances (Semperton (Thackray and Ryan JJ)); 2. contributions assessment at capitalised value, followed by section 75(2) adjustment only if no adjustment was made at contributions stage (Craig & Rowlands, consistent with Coleman J in McKinnon); 3. taking account of the pension at section 75(2) stage only (Semperton (May J) consistent with Coleman J in Cahill). Each approach reflects a slightly higher level of concern than the previous one about the risk of double counting the pension in the section 79/90SM process—a risk that arises in the pension cases because any adjustment at contributions stage will be done on the basis of the capitalised (total) value of the pension; this reduces the justification for any section 75(2)/90SF(3) adjustment.205 All approaches, however, require the trial judge to appreciate the ‘different character’ or ‘real nature’ of the pension in the final stage of the section 79/90SM process, when determining whether the proposed orders would be just and equitable. It is less clear 201 202 203 204 205

Semperton [2012] FamCAFC 132 (May, Thackray and Ryan JJ). M & M [2006] FamCA 913, [121] (Bryant CJ, Finn and Boland JJ). Semperton [2012] FamCAFC 132. Craig & Rowlands [2013] FamCAFC 45 (May, Forrest and Strickland JJ). Although see the view of Thackray and Ryan JJ to the effect that this could be relevant in limited circumstances— in essence, to take account of a significant discrepancy between the value, extent or nature of assets to be retained by each party not already reflected: Semperton [2012] FamCAFC 132, [146] (Thackray and Ryan JJ).

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what judges need to do when making orders that will satisfy this requirement. However, consideration of the value parties actually attach to particular assets (for example, the lesser ‘real’ economic value for them of the pension interest compared to the unencumbered family home) would seem wise. While splitting the pension between the parties (even if they don’t ask for this)206 may seem the most straightforward option (as it would mean that both parties share the risk that the FLSR valuation proved, in the event, too generous), this will not necessarily result in a just and equitable outcome. Rather, determining whether the orders are just and equitable involves a less rigid and more practical inquiry. This was conveyed by Walters FM in Rushton& Rushton,207 in the course of making section 79 orders that involved splitting the husband’s superannuation interest in a way that allowed him to receive cash funds from the sale of the matrimonial home: Although many first instance decisions, and some Full Court decisions, place great emphasis on the difference between realisable or liquid assets (on the one hand) and assets that are not readily realisable or are illiquid (on the other), I do not accept that it is obvious or that it ‘goes without saying’ that one form of asset is necessarily better than the other. After all, speculative investments such as shares might be readily realisable, but they might also be a far less attractive proposition for a party than the right to retain, say, a former matrimonial home or an established, income producing business. Similarly, cash might only be of attraction to the extent that it enables a party to purchase an item of property that is itself not readily realisable or illiquid (such as a new home, business or an annuity or fixed investment of some sort). As I stated in the previous paragraph, a trial judge’s presumptions or assumptions should not be expected to take the place of relevant evidence as to a party’s needs and the reasons why one form of order should be preferred to another.208

Full Court illustrations of the way in which the court assesses and then acts on the ‘real value’ of superannuation interest include M v M,209 decided in 2006. The Full Court in its re-exercise of discretion concluded that a just and equitable outcome was achieved by orders that the husband retain his police force superannuation pension interest (which was in the payment phase) so that the wife could retain the family home, even though achieving this led to the husband receiving (from the total asset pool valued at about $1.5 million, including his pension valued at just under $1.1 million) assets of $100,000 more than would have resulted from following the percentage split reached from contributions assessment and consideration of the section 75(2) factors. The Full Court emphasised that ‘it must be remembered that the wife is to receive the immediate capital benefit of the equity in the house’ and that ‘[i]t is an outcome arrived at with a view to the nature of the assets of the parties rather [than] simple percentages’.210 In contrast, in Mayne & Mayne (No. 2),211 which involved a 23-year marriage, non-superannuation assets of $965,398 and superannuation interests (mainly of the husband) of $401,419) the Full Court concluded ‘that it would not be just and equitable for the husband to receive the 206 ibid., [59] (May J). 207 Rushton & Rushton [2011] FMCAfam 1259 (Walters FM). 208 ibid., [199]. 209 M & M [2006] FamCA 913 (Bryant CJ, Finn and Boland JJ). 210 ibid., [138]–[139]. 211 Mayne & Mayne (No. 2) [2012] FamCAFC 90 (Faulks DCJ, May and Strickland JJ).

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whole of his superannuation entitlements and, as a consequence, a significantly reduced amount by way of other assets’212 as the husband had no significant resources to enable him to re-house or to acquire assets and his superannuation would be not available to him for at least seven years.

14.6 Relevance of family violence to property outcomes It seems from our analysis so far that there is some evidence that the Full Court may be moving away from special treatment of particular sorts of contributions (initial contributions, post-separation contributions and ‘special skills’) towards a more contextual assessment. At present, it is unclear whether the Court might also reconsider its 1997 decision in Kennon,213 to the effect that inter-partner violence perpetrated by one party (usually the male—Chapter 5) may result in a more generous contributions assessment for the woman in circumstances where making her contribution has been more arduous because of the violence. In 1997, Kennon was a milestone case due to previous case law suggesting that family violence would not be considered relevant to the assessment of contributions, because to do so would be to reintroduce questions of fault. Judges would only look at conduct in property proceedings if it had financial consequences, such as serious and permanent impairment of the wife’s health affecting her ability to earn an income.214 The financial consequences of intimate partner violence could be treated as a relevant matter via several paragraphs of section 75(2), including section 75(2)(a) (as an aspect of the victim’s health), section 75(2)(b) (being relevant to the victim’s capacity for appropriate gainful employment), and section 75(2)(o) (any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account). Generally, however, the court’s strict approach led to violence being overlooked as a relevant matter in section 79 proceedings. In the late 1990s following ‘a significant re-agitation of this issue both in decisions of this court and in a number of learned articles’215 change began to occur.216 In Kennon, 212 ibid., [45] (May J, Faulks DCJ agreeing [14], Strickland J agreeing [124]). 213 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1. 214 In the Marriage of Barkly (1976) 1 Fam LR 11,554. See further Sarah Middleton, ‘Matrimonial Property Reform: Legislating for the “Financial Consequences” of Domestic Violence’ (2005) 19 Australian Journal of Family Law 9. 215 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 18 (Fogarty and Lindenmayer JJ). The work of Juliet Behrens has been influential in this context. See further Juliet Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse’ (1993) 7 Australian Journal of Family Law 9; Juliet Behrens, ‘Violence in the Home and Family Law: An Update’ (1995) 9 Australian Journal of Family Law 70. 216 Beginning with first instance decision of Cook J in In the Marriage of Fisher (1990) 13 Fam LR 806, which although overruled by the Full Court was preferred by Coleman J in Manna (Unreported, Family Court of Australia, Coleman J, 20 May 1996). See also Rosati (Unreported, Family Court of Australia, Chisholm J, 14  February 1997). There were also indications by the Full Court in In the Matter Of: Brent Geoffrey Herbert Waters Appellant/ Husband and Mary Bohumila Jurek Respondent/Wife [1995] FamCA 101 (Fogarty J); In the Marriage of Doherty (1995) 20 Fam LR 137, 141 (Baker J, with whom Fogarty and Hannon JJ agreed) suggesting the relevance of domestic violence for s 79. These cases are discussed in Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 17–24 (Fogarty and Lindenmayer JJ).

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obiter217 of the majority of the Full Court (Fogarty and Lindenmayer JJ, Baker J dissenting) indicated the Court’s view that domestic violence in a marriage was a relevant factor when a court assesses contributions, if there has been a course of violent conduct by one party towards the other during the marriage that is demonstrated to have had a ‘significant adverse impact’ upon that party’s contribution to the marriage.218 A number of criticisms have, however, been made regarding these dicta. They include: • The court’s focus is on what the victim achieved in the face of that violence, rather than viewing that violence as a ‘negative contribution’ of the perpetrator that should lead to discounting of his overall contribution.219 • In practice, applying the Kennon test is likely to present a number of problems for victims. So, for example: + Violence has to comprise a course of conduct during the marriage. This would not encompass sporadic violence,220 ‘and of necessity does not encompass … conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions)’.221 Yet violence will often occur at this time (Chapter 5). However, the Full Court’s decision in Baranski 222 appeared to soften this: post-separation violence was relevant in a case where the male de facto partner’s violence was ‘endemic’223 to the parties’ relationship, and the Court also said that post-separation contributions ‘of any kind’ are relevant to determining a just and equitable outcome.224 + Violence must also have a ‘discernable’ impact on the victim’s contributions, which may be difficult to establish. (However, the Full Court took the view in S & S225 that this may be inferred, while also holding that it is necessary to provide evidence establishing the incidence and effect of the violence, as well as evidence to enable the court to quantify the effect of the violence on the claimant’s contributions.) + The Court’s view in Kennon was that the principles it set out should only apply to ‘exceptional cases’.226 (Although in S & S the Court agreed with Chisholm J at first instance that ‘it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It 217 Given that the findings at first instance of Coleman J, that the evidence did not establish that the husband’s assaults impeded or prevented the wife from making her contributions, were not challenged on appeal: Kennon [1997] FamCA 27; (1997) 1 Fam LR 1. In subsequent cases, Brewster J has viewed himself as not being bound by Kennon on this basis: Palmer & Palmer [2012] FamCAFC 159, [12] (Bryant CJ, Finn and Strickland JJ, referring to the first instance decision of Brewster FM (as he then was)). 218 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 24 (Fogarty and Lindenmayer JJ). 219 Behrens, ‘Domestic Violence and Property Adjustment’, above n 215; Sarah Middleton, ‘Domestic Violence and Contributions to the Welfare of the Family: Why Not Negative?’ (2002) 16 Australian Journal of Family Law 26. 220 Subsequently, however, the Full Court in S and S [2005] FamCA 1304, [65] (Finn, Coleman and Warnick J) held that ‘[t]he term “course of conduct” is a broad one. We do not think the conduct must necessarily be frequent to constitute a course of conduct although a degree of repetition is obviously required’. 221 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 24 (Fogarty and Lindenmayer JJ). 222 Baranski & Baranski and Anor [2012] FamCAFC 18 (Bryant CJ, Coleman and Ainslie-Wallace JJ) (Baranski ). 223 ibid., [52] (Bryant CJ, Coleman and Ainslie-Wallace JJ, referring to the first instance decision of Brown FM). 224 ibid., [257]. 225 S & S [2003] FamCA 905 (Kay, May and Carter JJ). 226 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 24 (Fogarty and Lindenmayer JJ).

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seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are “significant adverse impact” and “discernable impact”.)227 • The majority said that the test extended to matrimonial conduct other than domestic violence, but the limits of this were not clearly defined (although infidelity seemed to be rejected as a relevant matter).228 This aspect also raises questions about the appropriateness of treating violence in the same way as other forms of conduct. • The majority judgment seemed to suggest that conduct should be relevant at the contribution stage of the section 79/90SM process, but not at the next stage in the context of the court’s consideration of the section 75(2)/90SF(3) factors.229 This approach has the advantages of bringing in violence whether there are future economic needs arising from it or not, and avoids double dipping, but leaves unresolved ‘some important conceptual issues, such as the underlying purpose of bringing in violence at all. The language of “contribution” is not in itself a sufficient clue to the purpose of treating violence as relevant. Nor is it clear why violence and other misconduct ought not to be relevant to the s 75(2)/90SF(3) factors.’230 • What is encompassed by ‘domestic violence’ was not entirely clear, although the Court did refer to the definition at that time in FLA section 60D for Part VII purposes, which following the 2012 amendments is now found in section 4AB in an amended form that is applied ‘for the purposes of this Act’ (5.7.11). The extent to which shifting definitional approaches are having an impact on the treatment of domestic violence in section 79/90SM proceedings is unclear. At a practical level, Kennon is infrequently applied in the case law231 and has resulted in relatively small adjustments. While there are unreported cases involving more generous adjustments of 10–15 per cent in favour of survivors,232 the clear message is that loadings are not as generous as have been evident in the past in ‘special skills’ cases (14.4). The limited extent to which a woman would be given an additional loading for having made her contributions in circumstances of violence was suggested early on in Marando,233 a 1998 first instance decision of Gee J. The parties were an Italian couple who were married 227 S & S [2003] FamCA 905, [47] (Kay, May and Carter JJ, citing Chisholm J). 228 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 24 (Fogarty and Lindenmayer JJ). 229 John Dewar, ‘Family Violence and Property Division: Where Now?’ (2000) Ninth National Family Law Conference Handbook, Television Education Network, Melbourne, pp 293–4, reproduced in Tom Altobelli, Family Law in Australia: Principles & Practice, LexisNexis Butterworths, Sydney, 2003, pp 436–7; Kennon [1997] FamCA 27, (1997) 22 Fam 24 (Fogarty and Lindemayer JJ). 230 Dewar, above n 229. See also Middleton, ‘Matrimonial Property Reform’, above n 214. 231 Middleton, ‘Domestic Violence and Contributions to the Welfare of the Family’, above n 219. Here, Middleton found 27 cases where Kennon was applied. Most recently, see Patricia Easteal, Catherine Warden and Lisa Young, ‘The Kennon “Factor”: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1, who identified 57 cases in which Kennon was raised by a party in s 79/90SM proceedings between 2006 and 2012 in the FCoA, FMCoA and Family Court of Western Australia, and a further 11 cases in which it was mentioned (pp 7–8). Of the 57 cases in which Kennon was raised, a Kennon adjustment was made in 42% of cases (p 10) and resulted in a mean adjustment of 7.3% (p 12). 232 See further ibid., 35–6; Sarah Middleton, ‘Domestic Violence, Contributions, and S 75(2) Considerations: An Analysis of Unreported Property Judgments’ (2001) 15 Australian Journal of Family Law 230, 242–4. 233 Between: Giorgio Marando (Respondent/Husband) and Giuseppa Marando (Applicant/Wife) [1997] FamCA 9 (Marando).

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for 48 years and had three children. The wife claimed that the husband was violent from very early in the marriage and that he had physically and emotionally abused her and the children throughout the marriage. She said that he hit her frequently, leaving bluish marks round the neck and the cheeks lasting sometimes up to three to four days, and on at least one occasion he attempted to strangle her, causing her to live in a separate bedroom from him and to put a plank on the door to stop him opening it. The husband would also prevent her from using the telephone and, in the course of arguments, would tell her to get out of the home. Justice Gee accepted the wife’s evidence (supported by the children) that, over the period of the marriage, the husband had abused and denigrated her, and that the wife had cared for the children and home without assistance from the husband, with the result that the wife had worked ‘especially hard’, and ‘harder than would be usual’ for a homemaker and parent. Justice Gee also gave some recognition to the impact of cultural expectations on the wife: To some extent it must have been very difficult for the wife, coming to Australia as she did, with two young children, being unable to read, write and speak English, … with her husband being the domineering person he was to break out of the cycle of being involved primarily in and around the house and around the market garden.234

Of significance was evidence of the wife’s psychiatrist, who had diagnosed her with depression, that ‘the overwhelming goal of women from Southern Italy in the wife’s position was to stay in a marriage unless behaviour became intolerable. Separation and divorce were not acceptable and this explained why the wife stayed so long in the relationship with the husband’.235 As a result of these factors, Gee J adjusted the wife’s contributions by adding five per cent (that is, giving her 55 per cent on the basis of contributions instead of 50 per cent) of the net asset pool of $982,000. No further adjustment was made on the basis of the additional factors. It is also important in this context to distinguish between what courts decide and what happens in the broader population of separating couples. AIFS research by Grania Sheehan and Bruce Smyth on matrimonial property division, involving a representative Australia-wide sample of 650 men and women who had separated between 1988 and 1997 and were interviewed by telephone, included consideration of the impact of violence in this context.236 Their analysis indicated that ‘a party’s experience of spousal violence puts them at a disadvantage when dividing the matrimonial property’237 and that women who experience domestic violence are more likely to be living in poverty post-separation than those who did not report violence.238 The indications are that women settle for less than they are entitled to in material terms in an attempt to secure their own and their children’s safety.

234 ibid.. 235 ibid. 236 Grania Sheehan and Bruce Smyth, ‘Spousal Violence and Post-Separation Financial Outcomes’ (2000) 14 Australian Journal of Family Law 102. 237 ibid., 111. 238 ibid.; see also Grania Sheehan, ‘Financial Aspects of the Divorce Transition in Australia: Recent Empirical Findings’ (2002) 16 International Journal of Law, Policy and the Family 95.

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More specifically, Sheehan and Smyth found that ‘[w]omen who reported experiencing severe abuse were around three times as likely as women who reported no physical abuse to indicate receipt of less than a 40 per cent share of the property (total and domestic assets)’.239 This was despite the fact that, given the circumstances of these women, including their lower levels of participation in the paid workforce, the expectation would have been that they would receive more.240 In contrast to the findings for women, the findings for men indicated that ‘there was no significant relation between their experience of spousal violence and the share of property they reportedly received, with most men indicating receipt of less than 40 per cent of the property (total and domestic assets).’241 Sheehan and Smyth also examined women’s financial living standards after separation to determine whether ‘increased levels of spousal violence would be associated with economic disadvantage post-divorce.’242 They found that: ‘[w]omen who reported experiencing severe abuse were more likely than women who indicated no physical abuse to have household incomes below 120 per cent of the Henderson poverty line and more likely to nominate social security pensions or benefits as their main source of income.’243 Over 60 per cent of women who experienced severe violence had incomes below 120 per cent of the Henderson poverty line, and over 40 per cent were reliant on social security as their main source of income.244 The study also showed that ‘[w]omen who reported severe abuse showed the lowest rate of employment at the time of interview.’245 Although Sheehan and Smyth emphasise that the study was ‘limited in its ability to conclude that spousal violence caused the financial disadvantage observed’,246 their findings suggested that access to legal assistance plays an important role in improving financial settlements for women experiencing violence. Most recently, LSSF Wave 3 findings included that parents who reported ‘experiencing emotional abuse and/or physical hurt before or during separation’247 reported receiving a lower share of the property than those not experiencing violence or abuse. Consistent with this, qualitative research conducted between 2008 and 2011 by Fehlberg and colleagues found that family violence (as defined by FLA section 4AB) had affected the property settlements of seven women among the study’s 60 Victorian participants.248 All described experiencing emotional (including verbal) abuse and three had also experienced physical, sexual and/or financial abuse. As none of the participants had adjudicated court orders (most had arrived at property settlements privately or with the involvement of solicitors—often to obtain consent orders), it was not surprising that none described a Kennon adjustment. However, consistent with Sheehan and Smyth, violence had a negative effect on the share of 239 Sheehan and Smyth, above n 236, 112. 240 ibid. 241 ibid., 113. 242 ibid., 114. 243 ibid., 115. 244 ibid. 245 ibid., 116. 246 ibid., 117. 247 Qu, Weston, Moloney, Kaspiew and Dunstan, above n 146, p 106. 248 Belinda Fehlberg and Christine Millward, ‘Family Violence and Financial Outcomes after Separation’ in A Hayes and D Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia, Australian Institute of Family Studies, Melbourne, 2014, p 235.

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property they received, although there was some evidence that legal representation assisted. More broadly though, the indirect effects of violence on financial settlements (that is, both property and child support) were evident in the form of continuing controlling behaviour of perpetrators in relation to parenting arrangements (10.3.2.2). We thus need to be careful to distinguish between legal remedies and their relevance in practice. The Full Court in Kennon paved the way for greater consideration of domestic violence in section 79 proceedings, and there are indications that where legal assistance is accessed it will have a positive impact on the financial settlement received by survivors of domestic violence. However, there are many reasons why survivors of violence may be unable to access laws or assistance that may benefit them (including the process-related issues discussed in Chapter 12, particularly the lack of free or inexpensive legal advice and support (advocacy) for financial disputes).249 Yet legislative reform may still go some way ‘towards facilitating more equitable outcomes for at least some victims of domestic violence’.250 Although the treatment of domestic violence in FLA property proceedings would seem an area ripe for reform, the most recent development was the Family Law Council’s 2001 ‘Letter of Advice: Violence and Property Proceedings’ to the Attorney-General. The Council recommended that family violence should receive specific statutory recognition via the amendment of section 79 to include a new subsection, (4A), directing the court to have regard to the effects of family violence on the contributions of both parties (which would require the court to consider violence as a negative contribution on the part of a perpetrator, as well as any effect it may have in enhancing the survivor’s contribution). It also recommended that section 75(2) be amended to include a new paragraph directing the court to consider ‘the extent to which the financial contributions of either party have been affected by family violence perpetrated by a party to the marriage’, to make it clear that family violence is relevant when the additional factors are considered, as well as to contributions assessment.251 The recommendations, however, met with opposition from significant stakeholders, such as the FCoA, the Family Law Section of the Law Council of Australia, and the National Network of Women’s Legal Services, and were never acted upon.252 In explaining this opposition, Sarah Middleton suggested that concerns about legislating to give effect to the Kennon test, given the conceptual and practical problems of applying it and increasing dissatisfaction with its contributions-based focus for dealing with domestic violence, may have been influential.253 Recently, there appears to be renewed interest in the impact of

249 See also Nicole Seaman, Fair Shares? Barriers to Equitable Property Settlements for Women, Women’s Legal Services Network and National Association of Community Legal Centres, Canberra, 199, discussed in Middleton, ‘Matrimonial Property Reform’, above n 214, pp 17–8. 250 Middleton, ‘Matrimonial Property Reform’, above n 214, p 19. 251 The Council also considered that the FLA s 60D(1) definition of family violence should also be adopted for pt VIII proceedings, which occurred when the definition was moved to s 4 as part of the 2006 parenting changes. See Chapter 6. 252 Middleton, ‘Matrimonial Property Reform’, above n 214. 253 ibid., 10.

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family violence on financial settlements although no indication that legislative amendment is being considered. In the first edition of this book, we suggested that in the absence of legislative reform another possible option might be to take violence (and perhaps other marital conduct) into account as a negative contribution, given that the majority’s preference in Kennon for taking domestic violence into account as increasing a survivor’s contribution rather than viewing the violence as a ‘negative’ contribution of the perpetrator was strictly obiter. This approach would also seem consistent with the broader preparedness of courts to apportion liability for financial losses and liabilities, which clearly involves consideration of conduct (14.2). In particular, Juliet Behrens has argued that a negative contribution approach has the benefit of focusing ‘on what the perpetrator did and how his contributions should be discounted because of it’, rather than on the victim.254 Sarah Middleton has also argued in favour of a negative contribution approach, for two main reasons: (1) the court’s general approach of only taking into account negative conduct that has a negative financial impact under section 75(2)(o)255 results in differential treatment of marital conduct, failing to encompass conduct that has a non-financial impact on the welfare of the family; and (2) the current approach of treating family violence and other non-financial conduct as being relevant only where it has increased the woman’s contribution to the welfare of the family is too limited in scope, and does not allow for the full impact of the violence on contributions to be considered.256 Subsequently, however, Middleton took the view that there was a need to rethink and legislate for a new approach to dealing with domestic violence in property proceedings.257 She argued that Kennon had been a failure for reasons including the unwieldy nature of the contribution analysis, and the possibility that it has resulted in a greater reluctance to deal with domestic violence in the section 75(2) context. As a result, Middleton suggested that Kennon should be overruled by the Full Court or (preferably) via legislative amendment and that in its place: domestic violence in the contribution context should be relevant, at most, as a defence by a victim to any claim that she has made less of a contribution than would normally be expected. In other words, violence should be relevant only where it has a significantly adverse impact upon a victim’s contributions to the welfare of the family. In this way, the perpetrator is unable to gain any financial benefit by relying on the victim’s reduced physical or emotional capacity to contribute. This sits well with the equitable maxim that a person shall not profit from their own wrongdoing. Moreover, problems of quantification are minimised, in that the violence defence would simply bring a victim’s contribution back to what it would otherwise have been, but for the violence. Apart from this, the consequences of domestic violence

254 Juliet Behrens, ‘Kennon: A Big Step Forward?’, paper presented at the 8th National Family Law Conference: The Challenge of Change, Hobart, 1998, p 69. 255 See, e.g., In the Marriage of Cordell (1977) 3 Fam LR 11,588; In the Marriage of Antmann (1980) 6 Fam LR 560; Kowaliw (1981) FLC 91-092. 256 Middleton, ‘Domestic Violence and Contributions to the Welfare of the Family’, above n 231, pp 33–5. 257 Middleton, ‘Matrimonial Property Reform’, above n 214.

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should be dealt with, for the purposes of property settlement, purely through a s 75(2) adjustment.258

Middleton’s proposal has the benefit of addressing issues evident in the research discussed earlier, particularly the likelihood that women will accept less than what they should have received because the perpetrator continued to exercise control after the separation. If a perpetrator knew that his target was likely to raise his violence in defence to his property claim, this control might be more likely to be thwarted without women having to be faced with the evidentiary trauma of establishing their case (which needs to occur on the positive contribution and negative contribution approaches). Conversely, if there were ongoing effects of violence warranting a section 75(2)/90SF(3) adjustment, she would still have to establish these.

14.7 Financial agreements: Not so binding? FLA Part VIIIA allows couples (along with third parties, for spousal financial agreements made after 21 November 2008)259 to enter into a ‘financial agreement’ before marriage or commencement of a de facto relationship (section 90B/90UB), during marriage or a de facto relationship (section 90C/90UC), as well as after divorce or breakdown of a de facto relationship (section 90D/90UD).260 A financial agreement may cover property and financial resources (present or future,261 and including superannuation interests), spousal or de facto partner maintenance (although see the next paragraph) and child support (as long as the requirements for entry into a binding child support agreement are satisfied—anecdotal evidence suggests they are usually kept separate), and may cover child maintenance (section 90E/90UH). A financial agreement may also cover ‘incidental or ancillary’ matters and ‘other matters’ (for spousal financial agreements made on or after 21 November 2008).262 The limits of ‘incidental or ancillary’ matters and ‘other matters’ are currently untested, giving rise to the question whether ‘lifestyle clauses’ (being clauses that stipulate behavior within the marriage, for example, that the parties will not have children, how often they should have sex, that they will not ‘cheat’ on each other, or that they will do their share of the housework) would be enforceable. The main risk with such clauses is that they would be void for uncertainty.263 Depending on what is being agreed, they may also be void on public policy grounds. The same criticisms surrounding the requirements for entry into financial agreements apply as were made in relation to binding child support agreements at 11.5.3. Similarly, there is no court supervision or registration of agreements and a number of requirements must be 258 ibid., p 11. 259 See further CCH International, Australian Master Family Law Guide, 6th edn, [19-130]. 260 On the application of the FLA provisions to international financial agreements see Mary Keyes, ‘Financial Agreements in International Family Litigation’ (2011) 25 Australian Journal of Family Law 167. 261 However, property subject to a financial agreement must be acquired before divorce or breakdown of a de facto relationship. In contrast, property acquired after divorce or the breakdown of a de facto relationship may be the subject of a pt VIII/VIIIAB application. 262 CCH International, Australian Master Family Law Guide, 5th edn, 2012, p 701. 263 Kostres & Kostres [2009] FamCAFC 222 (Bryant CJ, Boland and Jordan JJ).

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met for a financial agreement to be binding, including that ‘before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement’ (section 90G(1)(b)/90UJ(1)(b)).264 If an agreement is binding, the court is prevented from dealing with matters covered by that agreement (section 71A/90SA), unless at the time when the agreement takes effect the applicant was unable to support themselves without relying on social security, in which case the agreement will not limit the court’s power to order spousal or de facto partner maintenance (FLA section 90F/90UI). Once entered, a financial agreement can be terminated by mutual agreement of the parties (section 90J/90UL). Where a party unilaterally seeks to avoid a financial agreement, they can argue that: 1. The agreement is not ‘binding’ because the formal requirements of section 90G/90UJ have not been met. 2. The agreement should not be enforced as a contract (given family law courts have held265 that, even if a financial agreement is not ‘binding’ within the meaning of section 90G/90UJ, it can still be enforced as a ‘financial agreement’ within the meaning of the FLA on contract law principles, pursuant to section 90KA/90UN. The difference is that an agreement that is binding under section 90G/90UJ ousts the courts’ jurisdiction to make FLA orders in relation to matters covered by the agreement, while the relevance of an agreement that is merely a financial agreement is more limited: the court may take the agreement into account, but is not governed by its terms— although after Stanford it is possible that such agreements will be more influential than previously given the HCoA’s emphasis on the relevance of any agreement between the parties while together regarding their financial arrangements to determination whether it would be just an equitable to make a property settlement order (Chapter 13)). 3. One or more of the grounds set out in section 90K/90UM is established. (The list involves some repetition and extends to fraud (including non-disclosure of a material matter); the agreement is void, voidable or unenforceable (that is, general law grounds for refusing contract performance); circumstances arising post-agreement that make it impracticable to carry out the agreement; and a material change in circumstances relating to the care, welfare and development of a child of the marriage such that the child or applicant carer will face hardship if the agreement is not set aside. These grounds, especially (2), have been the focus of the case law since the legislation was enacted and so comprise the focus of our discussion now. As we shall see, most of the concerns raised in relation to financial agreements surround agreements entered into before, or soon after, marriage or cohabitation. It is likely over 264 In addition, for a financial agreement dealing with property or financial resources to take effect if the parties are not divorced, a separation declaration must be made (s 90DA/90UF) (so in practical terms this will always be a requirement for de facto partners). 265 Fevia & Carmel-Fevia [2009] FamCA 816; Ruane & Bachmann-Ruane and Anor [2009] FamCA 1101; Senior and Anderson [2011] FamCAFC 129, [94] (Strickland and Murphy JJ).

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time that one or both parties will become (increasingly) unhappy with an agreement that they entered possibly many years ago. When this happens, the terms of the agreement and the circumstances in which it was entered are likely to be subject to much scrutiny to see whether the agreement can be avoided. Opportunities for parties to do this have been increased due to poor legislative drafting and poor lawyering.266

14.7.1 Undermining policy goals? When Part VIIIA (being the financial agreement provisions relating to spouses; the de facto provisions were included in Part VIIIAB, which came into effect on 1 March 2009: 2.4.1.2) came into effect on 27 December 2000, it represented two marked changes in Australian family law: the introduction of binding financial agreements that can be entered before and during marriage as well as after separation and divorce,267 and a movement away from court involvement in overseeing entry into private financial agreements (which was in essence shifted onto family lawyers, as the providers of independent legal advice). The enactment of Part VIIIA was part of the wider trend in Australian family law towards private agreement and a more contract-based approach, along with increasing emphasis on the private resolution of disputes. Consistent with this, the Howard Federal Government’s policy rationale for the changes was to provide parties with greater control over their property and greater choice about how to order their financial affairs, and to reduce conflict between separating couples and to reflect changed community attitudes and needs.268 Yet the extent to which these goals have been achieved, particularly in relation to pre-nuptial agreements, is questionable.269 To date, the only empirical research on Part VIIIA (that is, spousal financial agreements) is Belinda Fehlberg and Bruce Smyth’s small-scale empirical study, involving an email questionnaire sent to family lawyers during the first year of the operation of Part VIIIA (and before de facto financial disputes were brought within the FLA), which suggested that interest in entering a pre-nuptial agreement is concentrated among certain groups in the community, especially those entering second marriages with assets they wish to quarantine.270 Even then, respondents identified a number of practical problems that reduced the likelihood that Part VIIIA would be utilised, including client reluctance to undermine or disrupt the personal relationship by undertaking the detailed negotiations required for entry into a financial agreement. Family lawyers also expressed concern about their professional liability for providing independent legal advice, and doubts regarding whether financial agreements would provide their clients with the certainty they sought due to uncertainties and loopholes in the drafting of the legislation. 266 Ian Kennedy, ‘The Chains That Bind? Navigating the Ever-Shifting Landscape of Financial Agreements’, Law Council of Australia, Family Law Section, Melbourne Family Law Intensive, 3 May 2014. 267 Before the changes, separating spouses could enter binding financial agreements under FLA s 87. Section 87 (along with s 86, which provided for the registration in court of non-binding financial agreements) was repealed by the Family Law Amendment Act 2000 (Cth). 268 For the second reading speech, see Commonwealth, Parliamentary Debates, House of Representatives, 31 August 1999, 19807 (Daryl Williams, Attorney-General). 269 Belinda Fehlberg and Bruce Smyth, ‘Pre-Nuptial Agreements for Australia: Why Not?’ (2000) 14 Australian Journal of Family Law 80. 270 ibid.

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At the time Part VIIIA was enacted, concern was also raised271 regarding the impact of financial agreements—particularly pre-nuptial agreements—on vulnerable parties, especially (although not invariably) women given their generally lesser wealth compared to men (10.2). While both parties may agree to the terms of a financial agreement, this is likely to be many years in advance of that agreement taking effect and in different relationship and economic circumstances from those that may exist when the agreement is enforced. Independent legal advice before signing does not necessarily mean the agreement will be fair to a vulnerable party: if a person feels they should sign, even good legal advice is unlikely to change their mind. Indeed, and ironically, good advice helps the other partner more, as it makes the financial agreement even harder to avoid in the future. Although it may be possible for one partner to avoid a financial agreement later on, this involves going to court, which is emotionally and financially costly, especially given the virtual absence of legal aid for FLA financial matters (Chapter 12). What was not foreseen at the time Part VIIIA was introduced was the high level of vigilance that family law courts would subsequently exercise when scrutinising not only the substance of, but the procedural requirements for entering, financial agreements in order to ensure that their jurisdiction to determine the matter really had been ousted. Indeed, following the enactment of Part VIIIA, the main issues arising in relation to financial agreements have been in relation to section 90G/90UJ (that is, the formal requirements for entry into a binding financial agreement),272 although the section 90K/90UM grounds for avoiding financial agreements have also been activated in several cases.

14.7.2 Section 90G/90UJ: Strict compliance, further ­legislation and more problems Beginning with Black & Black,273 the first Full Court case to consider the operation of the entry requirements for binding financial agreements, the Full Court has emphasised that in order for a financial agreement to be binding strict compliance with section 60G/90UJ is necessary. The courts have reasoned that the legislation expressly requires this (an agreement is binding ‘if, and only if ’ the requirements set out in section 90G/90UJ are satisfied) and that a strict approach is warranted because of the seriousness of the consequences of an agreement being binding, namely that the court’s jurisdiction to decide matters covered by the agreement is ousted. The ‘strict compliance’ approach was illustrated in Black & Black, in which the Full Court held that the agreement entered by the parties before their marriage was unenforceable because the matters on which they received independent legal

271 See further Belinda Fehlberg and Bruce Smyth, ‘Binding Pre-Nuptial Agreements in Australia: the First Year’ (2002) 16 International Journal of Law, Policy and the Family 127. 272 Examples include Ruane v Bachmann-Ruane [2009] FamCA 1101 (Cronin J held that an agreement was not binding as one party received independent legal advice from a lawyer not admitted to practice in Australia); Fevia & Carmel-Fevia [2009] FamCA 816 (Murphy J held that an agreement was not binding because the document signed by the husband differed materially from that signed by the wife); and Sullivan & Sullivan [2011] FamCA 752 (Young J held an agreement was not binding as the wife had signed it before their marriage and the husband had signed it after their marriage). 273 Black & Black [2008] FamCAFC 7 (Faulks DCJ, Kay and Penny JJ).

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advice had been set out in the annexed lawyers’ certificates rather than in the agreement itself as required by section 90G(1)(b) at that time. Black & Black was sound from legislative and policy perspectives but understandably caused significant concern among family law practitioners regarding the difficulty in acting for clients who sought to enter binding financial agreements and their potential liability if those agreements later proved to be unenforceable on technical grounds. This led to legislative amendments in 2003 and 2009, which were intended to respond to Black & Black. Those amendments, particularly the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) (the 2009 amendments), have led to further interpretive difficulty and ongoing uncertainty. The Full Court’s recent decisions in Hoult274 and Wallace & Stelzer275 provide some clarification but problems still remain. Further legislative reform is likely and lawyer concern is such that some family law practitioners currently decline to negotiate financial agreements: ‘[F]or lawyers, the safest option is to avoid them altogether’.276 As just noted, particular difficulty has surrounded the 2009 amendments despite the Federal Parliament’s aim to relax the technical requirements for financial agreements and so restore confidence in their binding nature. The 2009 amendments, which commenced operation on 4 January 2010, apply to agreements entered since the commencement of Part VIIIA (that is, they have retrospective operation), but complex transitional provisions were put in place with the intention of ensuring that agreements entered before the amendments came into effect and which would have been binding under section 90G when they were entered would still be binding. In addition, the 2009 amendments provided courts with power to declare an agreement binding if the section 90G/90UJ advice and certification requirements are not met and ‘it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made)’ (section 90G(1A)/90UJ(1A)). Unfortunately, as was recently acknowledged by the Attorney-General in Wallace & Stelzer, the 2009 amendments were characterised by poor drafting, including drafting errors. This has led to judicial reasoning and outcomes in several cases that have (in addition to cases in which lawyers have been sued)277 further diminished practitioner confidence.278 Problems have included complexity surrounding the extent to which errors in agreements and certificates can be corrected by courts. The prevailing view is that the equitable remedy of rectification (which by virtue of section 90KA/90UN allows a written agreement to be amended to reflect the true intention of the parties) cannot be used to correct non-compliance with section 90G/90UJ, as ‘[t]hose requirements do not pertain to 274 Hoult & Hoult [2013] FamCAFC 109 (Hoult). 275 Wallace and Stelzer & Anor [2013] FamCAFC 199 (Wallace & Stelzer). 276 Jacqueline Campbell, ‘Binding Financial Agreements Unbound’ (2012) 11 Law Institute Journal 35, p 39. See also John Wade, ‘The Perils of Prenuptial Financial Agreements: Effectiveness and Professional Negligence’ 22(3) Family Lawyer 24. 277 In particular Noll & Noll and Anor [2013] FamCAFC 24; Ruane & Bachmann-Ruane and Ors (Accrued Jurisdiction) [2012] FamCA 369 (see 3.4.3.2); Schacht v Bruce Lockhart Thompson and Dennis Michael Staunton (trading as Staunton and Thompson Lawyers) (No. 3) [2013] NSWSC 316. 278 John Wade, above n 276.

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matters of agreement as between the parties in respect of which clear intention can sound in rectification’.279 Thus in Senior & Anderson the Full Court held that rectification could be used to correct reference in the parties’ agreement to the incorrect FLA section (the agreement was said to be made under section 90C rather than 90D) but not to correct the incorrect and inconsistent names used to refer to the parties in the certification provided by their independent legal advisers.280 Also, confusion continues to surround interpretation of section 90G(1A)/90UJ(1A), mentioned earlier. For example, in Senior and Anderson, members of the Full Court took different approaches and expressed uncertainty regarding the meaning of section 90G(1A)(c).281 In Hoult detailed analysis was undertaken by the Full Court ‘to consider what, if any, majority view emerged in the Full Court in Parker & Parker282 about the proper interpretation of section 90G(1A)’283—an analysis that has not resolved uncertainly regarding the matters the court is required to consider when determining whether it would be unjust or inequitable for the agreement not to be binding pursuant to section 90G(1A)(c)/90UJ(1A)(c). In Hoult the Full Court, while not required to decide the matter, considered that the trial judge’s discretion had miscarried because he has misapplied section 90G(1A)(c). All three members of the Court agreed that it was possible for the section to ‘cure’ an agreement where the prescribed legal advice had not been given and where there was more than technical non-compliance, but that uncertainty existed regarding the factors relevant to the exercise of discretion: [T]he most that can be gleaned from [the Full Court’s decision in Parker] is that first, the fact that a party has not received the prescribed legal advice does not alone render s 90G(1A) inapplicable, and second, it is authority for the proposition that the operation of the discretion in paragraph (c) is not confined to ‘technical’ breaches. … However … the decision in Parker provides no assistance in understanding what the discretion does entail, and in particular in identifying the factors to be taken into account in exercising the discretion.284

On the question of ‘what the discretion does entail’, Strickland and Ainslie-Wallace JJ took a narrower view than Thackray J. Specifically, while Thackray J could not ‘see any warrant in the text [of section 90G(1A)(c)] or in the extrinsic materials to treat “circumstances” as being restricted to matters associated with the negotiation, drafting and execution of the agreement’,285 Strickland and Ainslie-Wallace JJ did ‘not accept that because the enquiry in paragraph (c) is as to injustice and inequity, the content of the bargain must have some relevance’.286 However, Thackray J joined with Strickland and Ainslie-Wallace JJ 279 Senior & Anderson [2011] FamCAFC 129, [138] (Strickland J); Fevia & Carmel-Fevia [2009] FamCA 816. 280 However, May J held that it was nevertheless appropriate to correct ‘careless error’ in the certification using principles of construction: Senior & Anderson [2011] FamCAFC 129, [37] (May J). 281 ibid., [154] (Strickland J), Murphy J [192]. 282 Parker & Parker [2012] FamCAFC 33 (Coleman, May and Murphy JJ). 283 Hoult [2013] FamCAFC 109, [180] (Thackray J). 284 ibid., [288]–[289] (Strickland and Ainslie-Wallace JJ), [183] (Thackray J). 285 ibid., [197] (Thackray J). 286 ibid., [197] (Thackray J), [306] (Strickland and Ainslie-Wallace JJ).

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in expressing reservation regarding the relevance of whether the wife would have received a markedly better outcome under section 79 than under the financial agreement when making a determination under section 90G(1A)(c).287 The policy issue confronting courts here is that while it is arguable that whether an agreement would result to an outcome ‘within range’ should be relevant, the aim of legislating for such agreements was to allow people to avoid exposure to section 79/90SM. Lack of clarity also continues regarding the matters the court must consider under section 90G(1A)(c)/90UJ(1A)(c) and thus when an agreement is or is not likely to be upheld. Questions have also surrounded when a party can trust that the other party has received independent legal advice that will meet the requirements of section 90G/90UJ, which has involved interpretation of the poorly drafted application and transitional provisions enacted as part of the 2009 amendments and applicable to agreements entered between 14 January 2004 and 4 January 2010. Recent Full Court decisions in Hoult and Wallace & Stelzer partially but do not fully resolve the concerns that exist. Specifically, in the case of Hoult the Full Court held that the trial judge was wrong not to treat the solicitor’s certificate (or statement) as prima facie evidence for compliance with section 90G, allowing the appeal and remitting the matter for rehearing before another judge: I accept there is merit in the criticism of the trial Judge’s treatment of the certificate. In particular, I am unable to accept the view his Honour expressed … that ‘the certificate is, without more, insufficient to satisfy the onus of establishing that the relevant s 90G requirements have been met’. The certificate, when read with Recital N [acknowledging that the parties had received the requisite advice], should have been treated as prima facie evidence of compliance with the legal advice component of s 90G(1). Put another way … the production of the certificate, read together with the recital, should have given rise to ‘an inference, a presumption of fact or a presumptio hominis’ that the requisite advice had been given. The question that then should have been posed was whether the wife had adduced evidence, or elicited evidence in cross-examination, that was ‘sufficiently precise and definite to displace the inference’ [quoting Windeyer J in Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, 171]. The evidence required for this purpose was such as would raise ‘suspicions which counter-balance the presumptions’.288

While Hoult provided clarity on the issue of the burden of proof and made clear that ‘the only enquiry necessary is as to whether advice was given, and not as to the content of that advice’,289 it remains unresolved whether section 90G(1)(b) would have been complied with in that case—although the Full Court’s decision will make the wife’s case a more difficult one to establish (the matter was remitted for re-hearing). Specifically, the wife’s claim at first instance was that section 90G(1)(b) requirements had not been met, and it 287 ibid., [207] (Thackray J), [314] (Strickland and Ainslie-Wallace JJ). 288 ibid., [96]–[97] (Thackray J; Strickland and Ainslie-Wallace JJ agreeing on this point in a separate judgment). 289 Wallace & Stelzer [2013] FamCAFC 199, [103] (Finn, Strickland and Ryan JJ). This emerges in Hoult [2013] FamCAFC 109, [100] (Thackray J), [279] (Strickland and Ainslie-Wallace JJ).

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is likely that her solicitor’s absence of file notes and inability to recall the precise details of the advice given would make establishment of her case more difficult once the husband produced the certificate and the burden of proof shifted. Hoult was, however, applied in Logan & Logan,290 in which the Full Court allowed an appeal by a wife. The Court held that it was not clear how Federal Magistrate Terry could have concluded that the wife’s evidence was insufficient to displace the inference that advice meeting requirements had not been given: The evidence of the wife comprised her deposition in her affidavit that she was not provided with the advice. She did not present any detail as to what in fact was said by the solicitor, and of course she did not call the solicitor to give evidence, as was open to her. However, the wife’s denial was not challenged in cross-examination on behalf of the husband, and the husband himself conceded that the required advice was not given at any of the preliminary consultations when he was present. Further, the husband did not call the solicitor to give evidence when it was also open to him to do so, and the file note from the solicitor’s file of the final attendance upon the wife when she signed the agreement did not indicate that the advice was given.291

The Full Court considered that Terry FM had erred in the application of the burden of proof: the forensic obligation on the wife after the husband presented the certificate of independent advice ‘was not to prove that the advice had not been given, but to throw the matter into doubt, leaving the onus of satisfying the court that the advice had been given on the husband’.292 Most recently, in Wallace & Stelzer,293 the Full Court held that a financial agreement entered by the parties in September 2005 before their marriage was binding, dismissing the husband’s appeal except in relation to the calculation of interest on the $3.25 million payable to the wife under the agreement. The Full Court held that items 8 and 8A of the application and transitional provisions in Schedule 5 of the 2009 amendments could be construed in a way that overcame the inconsistency. Specifically, the Full Court agreed with the trial judge’s generous construction of the application and transitional provisions relevant to agreements entered between the 2003 and 2009 amendments to the effect that section 90G(1)(b) would be satisfied as long as legal advice had been provided in accordance with either section 90G(1)(b) as originally enacted or section 90G(1)(b) as amended in 2009.294 As a result, the agreement was binding even though the content of the solicitors’ certificates or statements reflected the section 90G requirements prior to the 2003 amendments. The Full Court further held that the 2009 amendments did not to contravene Chapter III of the Constitution as, even though they operated retrospectively on the parties’ pending proceedings, they did not direct the court as to the manner and outcome of the exercise of its discretion in a particular case. The decision thus reflects a ‘purposive’ approach to the 2009 amendments, in the wake of acknowledgement of the 290 291 292 293 294

Logan & Logan [2013] FamCAFC 151(May, Thackray and Strickland JJ). ibid., [52] (May, Thackray and Strickland JJ). ibid., [55] (May, Thackray and Strickland JJ). Wallace & Stelzer [2013] FamCAFC 199, [72]–[73] (Finn, Strickland and Ryan JJ). ibid., [40] (Finn, Strickland and Ryan JJ).

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Attorney-General (who intervened in the case) that there were ‘inconsistencies’ between items 8 and 8A and ‘a drafting error’ in item 8A.295 At the time of writing, an application for special leave to appeal awaits determination by the HCoA.

14.7.3 Section 90K/90UM: More ways of avoiding agreements As mentioned earlier a court may set aside a financial agreement if one or more of the grounds set out in section 90K/90UM is established. Unsurprisingly, cases regularly arise under these provisions.296 For example, in the recent case of Saintclaire297 Ryan J held that a financial agreement was unenforceable as the wife had established the husband’s undue influence and unconscionable conduct. In the period before the agreement was negotiated and signed the wife had recently recovered from postnatal depression and was under financial pressure due to a credit card debt of $100,000 (only telling her solicitor about the latter issue, and at the last minute). The wife also alleged that on two occasions the husband had been abusive and threatening to her, one incident occurring four months before the agreement was signed. The agreement was signed four weeks after she had major surgery (a hysterectomy) and she was discharged from hospital just a few days before the roundtable conference at which the terms were settled. In relation to undue influence, Justice Ryan held that while the wife had managed to negotiate better terms than the husband had first proposed, a relationship of undue influence existed (that is, a relationship where the husband assumed a position of ascendancy over the wife who had reposed trust and confidence in him, and had used that position to transact his benefit)298 ‘and that this is why the wife signed the agreement’, which was to the husband’s advantage and her disadvantage:299 In short, during this period the wife remained emotionally vulnerable and, having undergone major surgery, she was also physically stressed, more vulnerable and more dependant upon the husband … It is accepted that the wife was very worried about the future of her marriage and her and her children’s future if she refused to sign … it is only because of the husband’s determination that they execute a financial agreement that would oust s 79 of the Act that this agreement came into being.300

Justice Ryan further held that the husband’s conduct had been unconscionable: he was in a ‘vastly superior position to her’ and was aware of other facts that put her at a ‘special disadvantage’ to him including ‘her desire to continue the family unit and her love for him’301 yet he ‘continued to press for a binding financial agreement’302 that was to his advantage and her disadvantage303 to be signed.

295 ibid., [53], [64] (Finn, Strickland and Ryan JJ) [53]. 296 For an overview of the grounds, see CCH International, Australian Master Family Law Guide, 6th edn, CCH International, CCH Sydney, 2013, [19-130]–[19-460]. 297 Saintclaire & Saintclaire [2013] FamCA 491 (Ryan J) (Saintclaire). 298 ibid., [83] (Ryan J, citing Winefield v Clark [2008] NSWSC 882, 27 per Barrett J). 299 ibid., [106] (Ryan J). 300 ibid., [104]–[105] (Ryan J). 301 ibid., [110] (Ryan J). 302 ibid., [109] (Ryan J). 303 ibid., [112] (Ryan J).

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A further important ground for setting aside a financial agreement is section 90K(1) (d)/90UM(1)(g): since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside.

In the absence of appellate authority, courts deciding cases at first instance have drawn on cases decided under section 79A(1)(d) (13.9.2) to interpret the section, requiring three elements to be satisfied before a financial agreement will be set aside on this ground: 1. a material change in circumstances after the agreement was made, relating to the care, welfare and development of a child of the marriage/de facto relationship; 2. with the result that the child or the applicant will suffer hardship if the court does not set the agreement aside; and 3. a discretionary element, to the effect that it is appropriate for the court to set aside the agreement and to make such orders under section 90K(3) as it considers appropriate.304 In relation to the first element, it has been held, consistent with the section 79A(1)(d) case law, that the change relied upon must not have been contemplated at the time the agreement was made. Thus in Saintclaire the wife failed to establish her claim because the circumstance she relied on (being that after separation she had moved to a town outside the Sydney metropolitan area with the children) was consistent with an intention she had made plain before the financial agreement was signed. In contrast, in Pascot 305 Le Poer Trench J considered that the birth of a third child not contemplated at the time the agreement was entered constituted a ‘material change of circumstances’. In so holding, Le Poer Trench J drew on cases decided under FLA section 79A(1)(d), modifying his approach to reflect that section 90K(1)(d) requires that the change in circumstances be ‘material’ rather than ‘exceptional’. Drawing also on the Butterworths Legal Dictionary, he suggested that a change would have to be ‘substantial, material and relevant’ to the care, welfare and development of a child of the marriage in order to be ‘material’.306 This formulation of the test arguably sets the bar too high. In Frampton,307 Bauman FM acknowledged, once again on the basis of the section 79A case law, that a change in a child’s living arrangements will not necessarily be ‘material’ but held that the wife’s decision to relocate with one of the parties’ two children to England to be with her new partner, leaving the husband and the other child in Australia, was a ‘material’ change in the circumstances: ‘This case is different. The previous carer of the child has left the country. The effect on the child arising from the wife’s decision includes remaining in the father’s care and his time (and support) with the

304 Frampton & Frampton [2007] FMCAfam 914 (Frampton), [10] (Baumann FM); Pascot & Pascot [2011] FamCA 945, [354] (Le Poer Trench J); Saintclaire [2013] FamCA 491, [119] (Ryan J). 305 Pascot & Pascot [2011] FamCA 945 (Pascot). 306 ibid., [357]. 307 Frampton [2007] FMCAfam 914 (Bauman FM).

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wife and the child’s sibling. It is a material change in circumstances relating to the care[,] welfare and development of [Y]’.308 In relation to the ‘hardship’ requirement, courts have once again drawn on cases decided under FLA section 79A(1)(d) but also under section 44(3) (13.2.4.2). In Frampton for example, Baumann FM said that: The term ‘hardship’ is not defined, however in my view some assistance can be drawn from decisions assessing ‘hardship’ within the context of applications for leave to commence actions under s.44(3) of the Act. In the Marriage of Whitford (1979) FLC 90-612, the Full Court connoted ‘hardship’ to such concepts as ‘hardness, severity, privation, that which is hard to bear, or a substantial detriment’.309

Applying this test, the court was not satisfied that the husband had established the requisite level of hardship: although he had unexpectedly become the primary carer of one of the parties’ children, Baumann FM was ‘not satisfied … that with the change of circumstances his net position is likely to be much worse’, or that there was a nexus between the husband’s inability to buy a home for himself and the child and the change of circumstances, concluding that ‘[t]here is no hardship necessarily caused to a child by living in rented accommodation rather than in a home owned by a parent’.310 In contrast, in Pascot Le Poer Trench J held that a financial agreement that advantaged the husband (providing for the parties to retain property brought into the marriage, while also assuming the wife would be the primary carer of the children before and after separation, not compensating her for her non-financial contributions, and making no provision for their children’s financial support) created hardship for the wife when a third child was born, regardless of the husband’s claim that she was able to earn an income: The ability of the wife to support herself has little bearing on the question of whether she would suffer hardship. The hardship of the wife is the consequences flowing to the wife if the Agreement is not set aside. It is not necessary to look at the resources currently at the wife’s disposal, but the effect of denying her access to the Family Court for adjudication of the property matters.311

While these cases may suggest that the hardship test is being applied more leniently in relation to section 90K(1)(d) claims by mothers compared to claims by fathers, more cases are needed to determine this. In summary, the financial agreement provisions of the FLA have so far been an unsuccessful aspect of the wider trend in Australian family law towards private agreement along with increasing emphasis on resolution of disputes without accessing courts. Many of the problems identified in this section, and in relation to private agreement more generally, arise due to the uneasy fit that exists between the law of contract (which tends to assume that people will act at arm’s length and in a self-interested way) and intimate personal relationships (where the dynamic is more likely to be one of emotional as well as economic interdependence). While in the first edition of this book we suggested that 308 309 310 311

ibid., [17]. ibid., [19]. Frampton [2007] FMCAfam 914, [21]. Pascot [2011] FamCA 945, [371]–[375].

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family law courts faced with applicants seeking to set aside binding financial agreements would be likely to be held to their bargain, even if the outcome was patently unfair, there has been little evidence of that prediction materialising. Family law courts have instead been understandably cautious about the prospect of their jurisdiction being ousted, especially in cases where the result would be a property settlement that is vastly different from that which would be achieved under section 79/90SM—despite judicial acknowledgment that ‘the parties are perfectly free to make “a bad bargain” (in section 79/90SM terms)’.312

14.8 Conclusion The specific examples discussed in this chapter have underlined—perhaps surprisingly, given that political and policy emphasis has been centred more clearly on children—that family property law has been the subject of much reform activity in recent years, including legislating for binding financial agreements in 2000, superannuation splitting in 2002, third parties in 2003, bankruptcy reform in 2005, and de facto financial disputes on relationship breakdown in 2009. Yet also evident is the ongoing centrality of broad judicial discretion in the exercise of section 79/90SM jurisdiction to make property settlement orders and despite legislative reform designed to, if anything, reduce the scope of or guide discretion. This appears to have been understood well by courts, which appear reluctant to have their jurisdiction curtailed (for example, in the case of binding financial agreements) or their discretion directed (as in the bankruptcy, superannuation, initial and post-separation contributions, and ‘special skills’ contexts). The HCoA’s warning in Stanford that assumptions as to outcome should not be applied, and emphasis on the significance and scope of the ‘just and equitable’ inquiry, may also encourage a shift away from guidelines towards discretion. Courts are justified in taking this approach, given the terms of section 79(2)/90SM(3) and the less usual circumstances that often characterise litigated cases. The fact that most separating couples have modest property pools is, however, likely to continue to encourage the use of guidelines or ‘rules of thumb’ in practice, even if they are not articulated at appellate level. In light of the material discussed in Chapter 10, it is to be hoped that those guidelines will continue to reflect a partnership approach, contextually applied.

312 Hoult [2012] FamCA 367, [31] (Murphy J).

CHAPTER

15

Maintenance for Spouses and de Facto Partners 15.1 Introduction 605 15.2 Working things out? Empirical evidence  611 15.2.1 Spousal maintenance  611 15.2.2 De facto partner maintenance  613 15.3 Obtaining maintenance without going to court  613 15.4 Going to court  614 15.4.1 Background to the FLA provisions  615 15.4.2 Practical preliminaries  616 15.5 Legal framework: The twofold threshold test  617 15.5.1 Applicant unable to support herself ‘adequately’  618 15.5.1.1 A contextual inquiry  618 15.5.1.2 Need may subsist despite receiving the bulk of the property  620 15.5.1.3 Do applicants have to demonstrate attempts to be self-sufficient? 622 15.5.1.4 Do needs have to be connected in some way to the marital or de facto relationship?  623 15.5.1.5 Differentiating between the applicant’s and her household’s expenses 624 15.5.2 Respondent’s liability to maintain to the extent ‘reasonably’ able  626 15.5.2.1 Existing income or earning potential  627 15.5.2.2 When the income of the respondent significantly exceeds both ­parties’ needs  628 15.5.3 The s 75(2)/90SF(3) factors  629 15.5.3.1 Parties’ post-separation circumstances  630 15.5.3.2 Past circumstances of the marriage  635 15.5.3.3 Section 75(2)(o)/90SF(3)(o) and considerations of past conduct 636 15.6 Orders 637 15.6.1 Urgent and interim maintenance  638 15.6.2 Periodic maintenance  641

604

CHAPTER 15: Maintenance for Spouses and de Facto Partners 605

15.6.3 Maintenance as part of property settlement orders  642 15.6.4 Maintenance where earning capacity is the key asset  643 15.7 After orders are made  645 15.7.1 Variation and cessation  645 15.7.2 Enforcement 645 15.8 Conclusion 646

15.1  Introduction In this chapter we discuss the Family Law Act 1975 (Cth) (FLA) provisions under which a spouse or (from 1 March 2009: 2.4.1.2 and 4.2.1) a de facto partner might be held financially responsible for the ongoing support of their spouse or ex-partner. These days, spousal and de facto partner maintenance cases appear only occasionally in the Australian family law reports. A 2008 analysis of Family Court of Australia (FCoA) and Federal Magistrates Court of Australia (FMCoA) judgments found that ‘[r]emarkably, the number of judgments, even on the internal court databases[,] is small (only around 115 judgments are indexed as relating to spousal maintenance in a database of over 10,000 family law judgments).’1 A more recent judgment analysis observed that final orders ‘are generally only made where one parent has a very high income and the other parent is either caring for the parties’ young child(ren) or is physically unable to work due to health problems or advanced age. Many orders are only made on an interim basis pending final property settlement or for a very limited number of years’.2 Similarly, empirical research has indicated that maintenance transfers are uncommon in the broader separating population3 and that when maintenance occurs it is ‘rare, minimal and brief ’,4 patterns that have been noted in Australian research on this topic since the early 1980s.5 While this is in contrast to empirical evidence suggesting broad acceptance of the parental obligation to pay child support following the introduction of the Child Support Scheme (CSS) in the late 1980s (11.2.4), these patterns are broadly consistent with the generally greater sense of financial obligation within families to children than adults, and community preference for a ‘clean break’ regarding financial matters after relationship breakdown, particularly in a context of prevailing notions of individualism and gender 1 Grant Riethmuller and Robin Smith, ‘Spousal Maintenance: Is it Time to Roast this Old Chestnut?’, paper presented at the 13th National Family Law Conference, Adelaide, 7 April 2008), pp 1–2. 2 Lisa Young, ‘Earning Capacity and Child Support’, paper presented at the International Symposium on Child Support, Australian National University, Canberra, 28–30 October 2013. 3 Juliet Behrens and Bruce Smyth, Spousal Support in Australia: A Study of Incidence and Attitudes, Working Paper No. 16, Australian Institute of Family Studies, Melbourne, 1999, p 8. 4 ibid., p vii. 5 In particular, earlier Australian Institute of Family Studies (AIFS) research: Peter McDonald (ed.), Settling Up: Property and Income Distribution on Divorce in Australia, AIFS and Prentice Hall of Australia, Sydney, 1986; the 1988 survey of Chief Magistrates and Family Court judges conducted by Justice Kay for the Family Law Council (see Family Law Council, Spousal Maintenance: Discussion Paper, Australian Government Publishing Service, Canberra, 1989, [8.6] (the Kay Committee Report)); and the results of a survey conducted by the Family Law Council in 1997–98, referred to in Family Law Council, Submission on the Discussion Paper ‘Property and Family Law: Options for Change’, Family Law Council, Canberra, 1999, [12.28]–[12.39]. For a summary of these earlier studies, see Family Law Council, Spousal Maintenance: Discussion Paper, Australian Government Publishing Service, Canberra, 1989, [8].

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equality. They are also consistent with the problem that most separating couples are not well-off enough financially for all needs to be satisfied6 (10.2.3.1), especially now that the payment of child support is a legal and policy imperative. The absence of maintenance has gendered impacts, given the women are usually poorer than men when relationships end (10.2), but the obligation to seek maintenance before relying on state support is not evident to the same extent as with maintenance of children (15.5.1.3). Following the 2006 amendments (6.3) it seemed possible that spousal maintenance might become still more uncommon, given that the need for it usually arises from the ongoing economic disadvantage faced by mothers after relationship breakdown due largely to their past and ongoing caring responsibilities. More shared parenting time might mean less maintenance. Conversely, there was also some question whether maintenance claims might be utilised to revisit financial settlements that proved inadequate in the event that shared time reverted to primary care (10.3.2.3), and perhaps also to recoup money lost due to reduced child support payments following the introduction of the new child support formula in 2008,7 especially given that the ‘clean break’ principle does not apply to FLA maintenance proceedings in the same way as it does to property (13.2.4, 15.4). There has, however, been no indication of an increased tendency for maintenance claims to be used in this way, probably (and once again) because of community preference for a ‘clean break’, the reality that in most separations there is not enough money to go around, and also the cost of taking legal action to obtain maintenance given the paucity of legal aid funding.8 In cases where legal action is taken, the option of applying for lump interim property orders after Strahan9 (13.8.1) ‘may deter clients from spending further money seeking an interim maintenance order’,10 especially as the threshold test for maintenance (which requires the applicant to establish that she is unable to support herself adequately: 15.5.1) may as a result be harder to satisfy.11 Most recently, the High Court of Australia’s (HCoA’s) 2012 decision in Stanford (Chapter 13) suggests that when considering whether it is just and equitable to make a property settlement order the possibility of making a maintenance order should be considered when the parties’ relationship has not broken down. In that context, maintenance orders were therefore presented as an alternative to property orders. While it is doubtful that Stanford will lead to maintenance instead of property orders in the vast majority of cases where parties have separated, the decision underlines that while maintenance may be uncommon, it has not been forgotten—at least by appellate courts. 6 Grania Sheehan and Jody Hughes, Division of Matrimonial Property in Australia, Research Paper No. 25, Australian Institute of Family Studies, Melbourne, 2001, p 13. 7 Riethmuller and Smith, above n 1. 8 However, funding for legal aid is more likely to be available for maintenance than for property. In Victoria, for example, see Victoria Legal Aid, 4—Commonwealth Family Law and Child Support Guidelines, 1 November 2011, VLA Handbook for Lawyers: Current , which provides that a grant of legal aid can be made for spousal maintenance proceedings but makes no mention of property proceedings. 9 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 (Strahan). 10 Minal Vorah, ‘Spousal Maintenance: Some Recent Cases’, paper presented at the Law Council of Australia, Family Law Section, Family Law Intensive, Melbourne, 5 May 2012, p 1. 11 Oates & Crest [2008] FamCAFC 29 (Coleman, May & Boland JJ) (although decided before Strahan).

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Indeed, the apparently greater interest of appellate courts in spousal maintenance compared to that of the general community has been an ongoing theme in Australian spousal maintenance law. This became clear in the 1990s when the Full Court of the FCoA indicated in some of its decisions (considered in more detail later) that ‘spousal support should be used more often—and particularly where there is little existing property to divide, and/or where the woman has been economically disadvantaged as a result of the sexual division of labour in the relationship’,12 while the Australian Institute of Family Studies’ (AIFS) empirical research conducted just prior to these pronouncements indicated that, in the divorcing population more generally, payment of spousal maintenance, as noted earlier, is ‘rare, minimal and brief ’. This gap between judicial pronouncement and empirical reality probably reflects to some extent the generally better economic circumstances of those who litigate their financial disputes as far as the Full Court compared to the separating population as a whole. Yet spousal and de facto maintenance still plays an important role in a minority of cases—both as a bargaining chip to obtain a more generous redistribution of property in the recipient’s favour, and in cases where there is little property to divide but the husband (or male de facto partner) has a high income and the wife cannot support herself adequately, usually due in large part to her investment in their relationship and family. Its role is more often rehabilitative (that is, payment for a finite period to assist the recipient to re-establish herself, for example by re-training) than compensatory (that is, more generous and/or ongoing payments, aimed at sharing the economic loss of investing in the relationship). However, this will not always be the case. Indeed, there has been lively debate, beginning in the United Kingdom in the late 1970s, regarding whether maintenance might be paid on a rehabilitative, compensatory or even punitive basis. So, for example, a popular option among academic commentators in the late 1970s was the ‘rehabilitative’ model of spousal maintenance. Advocates included Kevin Gray13 and Ruth Deech in England,14 and Mary Ann Glendon in the United States.15 Ruth Deech, for example, argued for a particularly restrictive model that involved spousal maintenance being available only when a woman was unable to work or had the care of young children.16 In Deech’s view, maintenance laws are permeated by a ‘legal supposition of female dependency on men’, which she criticised as tending to deny freedom of choice to married and separated persons, being degrading to women, and perpetuating the common law proprietary relationship of the husband and wife even after divorce.17 An alternative rationale to emerge in the 1980s was the ‘compensatory’ approach. This approach was considered to offer a solution to the complaint that spousal maintenance was patronising to women, as maintenance was conceptualised as something women were entitled to on marriage breakdown due to the economic disadvantage they experienced arising from 12 13 14 15 16 17

Behrens and Smyth, above n 3, p 8. Kevin Gray, Reallocation of Property on Divorce, Professional Books, Abingdon, 1977, chapter 6. Ruth Deech, ‘The Principles of Maintenance’ (1977) 7 Family Law 229. Mary Glendon, The New Family and New Property, Butterworths, Toronto, 1981. Deech, above n 14, pp 229–30, 233. ibid., 230.

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responsibilities they had assumed during marriage18 and, in particular, the inequality associated with parenthood.19 There was also the possibility that ‘if alimony were to be thought of as compensation for lost earnings and lost earning capacity it might be less emotionally charged and more rationally acceptable’.20 Those in favour of this approach included Hilaire Barnett,21 Hilary Land,22 Mavis Maclean23 and John Eekelaar24 in England, Leonore Weitzman,25 Margaret Brinig and June Carbone26 in the United States (US), and Alison Diduck and Helen Orton in Canada.27 The AIFS also supported this approach, proposing that, on divorce, spousal maintenance obligations should cease but there should be provision for women in appropriate cases to be compensated on a ‘one off ’ basis for their loss of opportunity to develop income-earning potential during the marriage. Compensation would be based on notions of debt arising from the past relationship rather than on future needs.28 More recently, the view that spousal maintenance should be viewed as compensating a woman for the reduction in her earning capacity resulting from time out of the workplace due to childcare and domestic responsibilities has been reflected in the writings of law and economics scholars in the US, including Ira Ellman.29 Ellman’s starting point is that ‘marital specialization’ makes sense for most couples in intact marriages, leading to the husband (who typically earns more) concentrating more on the market, and the wife more heavily on domestic matters. This approach, however, has financial consequences on divorce in the form of the wife’s reduced income-earning capacity compared to her position if she had not married. The function of alimony, argues Ellman, is thus ‘to reallocate the postdivorce financial consequences of marriage in order to prevent distorting incentives’.30 In other words, Ellman’s analysis assumes that spouses, acting rationally, would prefer to order their lives as he suggests, so what we need is rules that alleviate the adverse financial outcomes for women that might otherwise distort their innate preference to ‘specialize’ on domestic matters. 18 Hilary Land, ‘Changing Women’s Claims to Maintenance’ in Michael Freeman (ed.), The State, the Law, and the Family: Critical Perspectives, Tavistock Publications, London, 1984, pp 25–35. 19 John Eekelaar, Regulating Divorce Clarendon Press, Oxford, 1991, p 81. 20 Mavis Maclean and James Johnstone, ‘Alimony or Compensation?: What Can We Learn from the Language of Economists?’ [1990] Family Law 148, 149. 21 Hilaire Barnett, ‘Financial Provision—A Compensatory Approach?’ (1983) 13 Family Law 124. To similar effect, see Rebecca Bailey-Harris, ‘The Role of Maintenance and Property Orders In Redressing Inequality: Re-opening the Debate’ (1998) 12 Australian Journal of Family Law 3, 7. 22 Land, above n 18. 23 Mavis Maclean and Lenore Weitzman, ‘Introduction’ in Lenore Weitzman and Mavis Maclean (eds), Economic Consequences of Divorce: The International Perspective, Clarendon Press, Oxford, 1992, 187–94. 24 Eekelaar, Regulating Divorce, above n 19, 79–89. 25 Maclean and Weitzman, ‘Introduction’, above n 23. 26 Margaret Brinig and June Carbone, ‘The Reliance Interest in Marriage and Divorce’ (1988) 62 Tulane Law Review 855. See also Mary O’Connell, ‘Alimony after No-Fault: A Practice in Search of a Theory’ (1988–9) 23 New England Law Review 437. 27 Alison Diduck and Helena Orton, ‘Equality and Support for Spouses’ (1994) 57 Modern Law Review 681. 28 McDonald, above n 5, p 316. This included work of the late Kate Funder in developing a model for calculating this. 29 Ira Ellman, ‘The Theory of Alimony’ (1989) 77 California Law Review 3. 30 ibid., 50.

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An important feature of Ellman’s model is that it would only compensate ‘marital investment’ that results in post-marriage reduction in earning capacity. Also, only ‘financially rational sharing behaviour’ would qualify as a marital investment that would be compensated. For example, remaining a homemaker in a childless marriage would usually be non-compensatable on the basis that it is an economically irrational decision reflecting a lifestyle preference. A claim would thus be allowed in cases involving two-career couples weighing moves that are financially favourable for one spouse’s career and not the other’s (but not in cases where rejection of the move related to non-financial preferences such as geography, lifestyle and climate)31 and in childless marriages where a spouse is able ‘to show that their decision to forego the market was financially rational’32 (Ellman gives as examples ‘the classic executive wife’ who ‘was thought to enhance her husband’s opportunities for significant corporate advancement through social graces and strategic entertaining’ and the ‘political wife’, who devotes herself to her husband’s political success).33 In contrast, having children is viewed a ‘financially irrational choice’ but of social benefit, and so losses would be compensated. As regards the amount of compensation recoverable under Ellman’s model, a wife would be able to recover the full value of her lost earning capacity. She would, however, have no claim where no increase in marital income resulted from her marital investment (for example, if her husband were unable to work due to illness or was unsuccessful in his job), on the basis that she is in the same position as a businesswoman who ‘invested in the wrong building’.34 In essence, then, her ability to be compensated depends on her husband’s success and other factors that may well be beyond her control—reflecting the practical reality that there would usually not be enough money to be able to provide the compensation sought. Sensibly, however, Ellman makes an exception regarding losses resulting from the care of children—even if the wife’s investment did not result in an increase in marital income, the wife would be entitled to be compensated for half the value of her lost earning capacity. While Ellman acknowledges that there are difficulties in proving lost earning capacity, he sees these as ‘significant but not fatal’.35 June Carbone, also writing in the US, is critical of Ellman’s approach in a number of respects.36 She argues that Ellman’s arguments ‘although dressed up in the language of reliance, reinvent alimony as a form of restitution’ (which in essence permits recovery of a benefit retained by one party at the other’s expense on the basis of ‘unjust enrichment’). While Carbone also advocates a restitution-based compensatory model, she considers that ‘a clearer vision of the relationship between men and women and between home and market’37 than that provided by Ellman is required. In particular, she points to Ellman’s failure to recognise that spousal behaviour (that is, ‘marital specialization’) ‘turns on 31 ibid., 60–61. 32 ibid., 64. 33 ibid. 34 ibid. 67. 35 ibid. 79. 36 June Carbone, ‘Economics, Feminism and the Reinvention of Alimony: A Reply to Ellman’ (1990) 43 Vanderbilt Law Review 1463. 37 ibid., 1466.

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something more than a desire to maximise the couple’s income or utility’38 and suggests that his approach would be strengthened by moving away from lost earning potential as the basis for his theory of alimony, towards recognition of a wider range of benefits (including children and, to a lesser extent, enhanced earning potential and lifestyle) that the marriage made possible and arising from the parties’ non-financial and financial contributions. While considerable academic debate has surrounded the appropriate basis for spousal maintenance, an ongoing and arguably unsatisfactory aspect of Australian spousal and de facto partner maintenance law is the absence of a clear policy rationale.39 As our discussion throughout this chapter indicates, support for rehabilitative, compensatory and punitive approaches can be found in the cases and the FLA does not provide any clear direction. John Eekelaar’s argument that ‘the courts have found it difficult to draw on any background social obligation to underpin their orders, and the search for an underlying rationale for them remains elusive’,40 while made in relation to the position in England and Wales, is relevant here. This is in contrast, for example, to Canadian case law,41 ‘which has come to recognise a very generous basis for spousal support on both “compensatory” and “noncompensatory” (needs-based) grounds’.42 Since 2008 this recognition has underpinned the operation of Spousal Support Advisory Guidelines in Canada developed for courts to assist in the achievement of more predictable and consistent outcomes.43 While there is no indication that maintenance is about to return to the Australian family law reform agenda, exploring the ‘gap’ between legal and social norms in this area combined with changes to those norms over time (gendered choices made early in a long marriage may be increasingly less valued in a context espousing men and women’s equality notwithstanding empirical evidence to the contrary: Chapter 10) raises issues of fundamental relevance to Australian family law. These include the implications (especially for women) of the limited notion of the marriage ‘partnership’ reflected in current social attitudes and practices regarding spousal and de facto partner maintenance, the limited capacity in any case in most instances for maintenance laws to compensate for women’s economic disadvantage on relationship breakdown, the implications of legal principles being developed on the basis of a narrow band of cases that do not reflect the position (financially and otherwise) of most spouses and separating de facto couples, and the extent 38 ibid. 1465. 39 Belinda Fehlberg, ‘Spousal Maintenance in Australia’ (2004) 18 International Journal of Law, Policy and the Family 1; Riethmuller and Smith, above n 1. 40 John Eekelaar, ‘Uncovering Social Obligations: Family Law and the Responsible Citizen’ in Mavis McLean (ed.), Making Law for Families, Hart Publishing, Oxford, 2000, 10, p 19. 41 Beginning in Pelech v Pelech [1987] 1 SCR 801, but particularly since Moge v Moge;Women’s Legal Education and Action Fund (Intervener) [1993] 3 SCR 813 and Bracklow v Bracklow [1999] 1 SCR 420. See further Carol Rogerson and Rollie Thompson, ‘The Canadian Experiment with Spousal Support Guidelines’ (2011) 45 Family Law Quarterly 241, 247–8. 42 Rogerson and Thompson, above n 41, 242. 43 Department of Justice, Government of Canada, Spousal Support Advisory Guidelines, 30 May 2013, available at ; Rogerson and Thompson, above n 14, p 242: the Guidelines apply a formulaic approach in order to suggest ranges for the amount and duration of maintenance but do not deal with entitlement and are not legislated or mandatory. Spousal maintenance remains uncommon in Canada, being ordered in about 10% of cases, but the Guidelines ‘have received the endorsement of several appellate courts as a useful tool, and are now widely used across the country by lawyers, mediators, and judges in spousal support determinations’.

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to which parties ‘bargain in the shadow of the law’44 at all,45 or rather do not hear the message or do not embrace it.46 Maintenance law underlines the hierarchical and contingent nature of attitudes towards financial responsibility to support family members (Chapter 10), as well as Ira Ellman’s observation that, in the entire scheme of things, family law is likely to have a very limited impact on people’s behaviour.47 While the FLA provisions are expressed in gender-neutral terms, the reality is that women are almost always the applicants, and men the respondents, in spousal and de facto partner maintenance proceedings. Our discussion assumes this, while making clear when exceptions arise.48

15.2  Working things out? Empirical evidence Recent empirical evidence confirms that in Australia payment of spousal maintenance is not the norm. It seems that de facto and domestic partner maintenance is even rarer. Although not emphasised in the research, a recurring theme appears to be that maintenance is more likely to occur in cases where legal professionals are involved (lawyers and/or courts).49

15.2.1 Spousal maintenance The most recent Australian empirical research on spousal maintenance is an AIFS Working Paper by Juliet Behrens and Bruce Smyth, published in 2000.50 Their paper analysed data drawn from the AIFS’s Australian Divorce Transitions Project (ADTP), which involved telephone interviews conducted in late 1997 with a random national sample of 650 Australians who had divorced between 1987 and 1997. Behrens and Smyth found that spousal maintenance had occurred in less than seven  per  cent  of divorces, typically lasted two years, and averaged about $128 per week (or $6,640 per annum).51 A further 10 per cent of respondents said they had paid or received spousal maintenance solely through a larger share of the assets at property division.52 Thus in total about 17 per cent of respondents reported having paid or received 44 Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. 45 See further John Dewar, ‘Family Law and its Discontents’ (2000) 14 International Journal of Law, Policy and the Family 59. 46 Tom Altobelli, Family Law in Australia: Principles & Practice, LexisNexus Butterworths, Chatswood, 2003, p 590. 47 Ira Ellman, ‘Why Making Family Law Is Hard’ (2003) 13 Arizona Law Review 699, 702. 48 The most notable example being In the Marriage of Soblusky (1976) 2 Fam LR 11,528 (Soblusky). 49 Behrens and Smyth, above n 3; Belinda Fehlberg, Christine Millward and Monica Campo, ‘Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214. See also Riethmuller and Smith, above n 1 and Young, above n 2. 50 Behrens and Smyth, above n 3. 51 ibid., p 8. The tendency for spousal maintenance to be paid as an interim or short-term measure is consistent with earlier AIFS research to the effect that the payment of periodic maintenance was more likely prior to property settlement: McDonald, above n 5, and also with the results of a survey conducted by the Family Law Council in 1997–98, referred to in Family Law Council, Submission on the Discussion Paper ‘Property and Family Law: Options for Change’, Family Law Council, Canberra, 1999. 52 Behrens and Smyth, above n 3, p 8.

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some form of spousal maintenance. The fact that this was done mainly (in two-thirds of cases) via property transfer suggested a preference for a ‘clean break’. Not surprisingly, most receivers of spousal maintenance were women and most payers were men, and receivers were characterised by economic need arising from having the care of dependent children, spending most of their marriage out of paid work, and having no post-school qualifications. However, payers in the sample were not necessarily financially affluent. Also, spousal maintenance was more likely to be reported by those who had used the formal legal process (either court decision or registered agreement) and who had been married for at least 10 years. Behrens and Smyth found that respondents were more likely to support the payment of spousal maintenance in theory than in practice. A little over half the ADTP sample (54 per cent, and especially women) believed that spousal maintenance should be paid in at least some circumstances and should last until a former spouse was back on their feet.53 While Behrens and Smyth’s analysis conveyed that maintenance is not the norm in the broader separating population, Riethmuller and Smith’s 2008 analysis of 60 judgments of the   FCoA and the Federal Circuit Court of Australia (FCCoA) in which spousal maintenance was ordered indicated that spousal maintenance orders are not common in the litigating population either.54 The profile of applicants in Riethmuller and Smith’s judgment sample appeared similar to that in Behrens and Smyth’s broader representative sample: From the information gathered from the sample judgments, we can provide some information about the typical spousal maintenance applicant. They will almost certainly be female and in their mid to late forties. Applicants will probably have been married for approximately 13 years. The applicant will likely have the care of one child under 18. The income of the applicant will be around … $300 per week. The majority of spousal maintenance awards will be weekly sums.55

While Riethmuller and Smith’s analysis did not include a profile of respondents, their data showed respondent weekly incomes (before tax) of between $1,300 and $2,000 per week in 13 of the 14 cases not involving children. This was in contrast to Behrens and Smyth’s more modest income earners in the broader community and suggests that litigated cases are likely to involve claims against high income earners. Also in contrast to Behrens and Smyth’s study, periodic maintenance was awarded in 95 per cent of Riethmuller and Smith’s study while lump sum maintenance was rarely used.56 They further observed that in longer marriages spousal maintenance awards were lower, ‘despite expectations for greater amounts when considering the reported decisions.57

53 The preference of respondents for a ‘clean break’ is consistent with earlier AIFS research in McDonald, above n 5, with the 1988 survey conducted for the Kay Committee Report, above n 5, and with the results of a survey conducted by the Family Law Council in 1997–98, referred to in Family Law Council, Submission on the Discussion Paper ‘Property and Family Law: Options for Change’, above n 5. 54 Riethmuller and Smith, above n 1. 55 ibid., p 46. 56 ibid., p 46. 57 ibid., p 52.

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15.2.2 De facto partner maintenance The only Australian empirical research so far on de facto partner maintenance was conducted by Jenni Millbank, prior to 1 March 2009 when the FLA was amended to provide for determination of de facto financial disputes.58 Millbank’s research looked at the 237 court files filed under the Domestic Relationships Act 1994 (ACT) (4.2) in the Australian Capital Territory (ACT) Magistrates and Supreme Courts from November 1994 to May 1999. Only one file (involving a heterosexual cohabiting relationship) included a claim for maintenance. Her study thus suggested that maintenance on domestic relationship breakdown was even less common than on marriage breakdown. Millbank’s study suggested that this reflected a lack of proceedings being instituted (that is, those in domestic relationships—especially those not in heterosexual cohabiting relationships— were not using the legislation) rather than that decisions were not being reported. While no systematic analysis has been undertaken following the 2009 FLA de facto financial amendments, it is likely that the FLA provisions now available to separating de facto partners are being utilised more frequently than the state law provisions operating around Australia at the time of Millbank’s ACT study, due to the narrower ambit of the de facto laws in many states at that time compared to the ACT (for example, in Victoria it was not possible to apply for de facto partner maintenance until the Relationships Act 2008 (Vic)), the mirror provisions that now apply under the FLA and the family law courts’ application of the same approach when resolving de facto financial disputes as they apply to spousal maintenance disputes.59 Whether this shift reflects approaches in the broader community is unclear. While research in the 1980s and 1990s suggested that de facto couples comprised a more diverse group than married couples and were less likely to own or be purchasing a home or to pool their finances, and recent research by the AIFS suggests that de facto couples are still less likely to own fewer assets (including a home) than married couples,60 other recent research suggests that factors such as the presence of children are more predictive of financial pooling than whether a couple is married or not (10.3.1). Even if financial pooling were not present we may question the extent to which the way finances were organised during a relationship should dictate what happens if that relationship ends (Chapter 13).

15.3 Obtaining maintenance without going to court In Chapter 12, we discuss dispute resolution processes for reaching property settlement without adjudication, and ways in which spouses and separating de facto partners can 58 Jenni Millbank, ‘Domestic Rifts: Who is Using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14 Australian Journal of Family Law 163. 59 Examples are Stanton & Brook [2012] FamCA 230 (Watts J); Jonas & May [2010] FamCA 551 (Cronin J); Lorne & Trott [2012] FamCA 976 (O’Reilly J); Beaumont & Gardner [2013] FCCA 2282 (Scarlett J); Ross & Kelso (No. 2) [2013] FCCA 1425 (Neville J); Mancini & Hodges [2013] FCCA 1392 (Neville J); Taylor & Tyson [2011] FMCAfam 1038 (Lapthorn FM); Wagner & Baier (No. 2) [2009] FMCAfam 959 (Terry FM). 60 Lixia Qu, Ruth Weston, Lawrie Moloney, Rae Kaspiew and Jessie Dunstan, Post-Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, pp 93–95.

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formalise their agreement regarding property settlement without adjudication. While the discussion throughout that chapter focuses on property disputes, the dispute resolution processes and mechanisms for formalising agreement relevant to maintenance disputes are essentially the same. Indeed, maintenance orders are often (but not always) sought at the same time as property orders. A key difference is that the FLA section 81/90ST duty of the court to end financial relations (the ‘clean break’ principle) applies in a more qualified way to maintenance compared to property proceedings. The making of a maintenance order does not prevent a further maintenance order being made (section 80(2)/90SST). Also, the time limit on institution of FLA financial proceedings of one year from the date of divorce or two years from a de facto relationship ending (section 44(4)/44(6)) does not apply where hardship is established or, in the case of spousal/de facto maintenance proceedings, where the applicant’s circumstances at the end of the relevant application period are such that she would otherwise have been dependent on an income-tested pension, benefit or allowance (FLA section 44(4)(b)/44(6)(b)). It is thus possible that a maintenance application may be made some time after a marriage or de facto relationship has ended. In terms of process, practitioners attempt to reduce the latter risk by making an allocation for maintenance in property orders, pursuant to section 77A/90SH, which does not in reality represent an additional amount (15.6.3). In terms of mechanisms for formalising agreement, future spousal maintenance claims are more effectively curtailed via a binding financial agreement than by court order. However, if at the time the binding financial agreement comes into effect a party is not able to support themselves without an income-tested pension allowance or benefit, the agreement cannot preclude a court exercising its jurisdiction to make a spousal maintenance order (FLA section 90F/90UI). These provisions reflect state preference for individuals to utilise private avenues of financial support. However, in practical terms there are several disincentives to taking legal action to claim spousal or de facto partner maintenance in addition to the desire for a ‘clean break’, including legal cost, court proceedings and uncertainty surrounding the outcome given that (as for property) the power to order maintenance involves the exercise of a broad discretion. Consistent with this, the continued receipt of government benefits does not depend on making an application to the family law courts for maintenance, in contrast to the usual obligation to apply for a child support assessment (11.3.3.1).

15.4 Going to court Pre-action procedures for financial cases to be dealt with by the FCoA and FCCoA were outlined at 12.5. The usual FCoA requirement that parties attend a conciliation conference before the court will make property orders does not apply to spousal or de facto partner maintenance orders, although when a dispute concerns both issues the parties will in practical terms have the advantage of a conciliation conference extending to maintenance. Eligibility for spousal and de facto partner maintenance under the FLA depends on the claimant establishing that she is unable to support herself ‘adequately’, and that the other spouse is ‘reasonably able’ to pay maintenance. After first providing some background on the

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FLA provisions and how they have been interpreted over time, we consider the operation of this ‘threshold test’ in more detail.

15.4.1 Background to the FLA provisions The FLA introduced a broad ‘no fault’ divorce scheme and also removed all reference to fault in spousal maintenance decision making.61 Conduct resulting in marriage or de facto relationship breakdown is not specifically mentioned in the legislation, although our later discussion suggests that past conduct can be brought into the equation in more subtle ways. In the early days of the FLA’s operation the approach to spousal maintenance reflected the ‘clean break’ philosophy enshrined in FLA section 81. This approach was consistent with ‘the brave hopes of a generation which embraced a model of “equality” between the sexes’,62 in which spousal maintenance as a long-term measure was seen as unnecessary, and patronising to women. Maintenance at this time tended to be seen as a short-term ‘rehabilitative’ measure—or a ‘bridge’ while the recipient gained the qualifications she needed to re-enter the workforce. For example, in 1977 in Hope,63 the Court ordered periodic spousal maintenance to be paid by a husband to a wife whose central role for the 22-year marriage had been that of wife, parent and homemaker, so that she could complete a training course. The wife was due to complete the course in two years, after which she expected to obtain employment and become self-supporting. Consistent with a ‘clean break’ approach, from the beginning of the FLA’s operation, spousal maintenance applications were rare. As discussed at 11.2.1, child maintenance payments under the FLA were also very low, placing an increasing burden on the social security system, particularly in the context of economic recession and increasing levels of unemployment in the late 1980s. Although the increasing burden of sole-parent-headed families was most obviously addressed by the introduction of the CSS in the late 1980s (11.2.1), changes were also made to tighten up social security eligibility requirements, and the FLA spousal maintenance provisions were amended to prioritise private obligations of financial support. For example, the FLA was amended in 1988 to make it clear that an applicant’s entitlement to social security must be disregarded in proceedings for spousal maintenance, underlining that the primary duty to support lies with the other spouse (FLA section 75(3) and more recently 90SF(4)). The current position is that while the applicant’s entitlement to receive an income-tested pension, allowance or benefit is ignored in the context of determining her spousal maintenance claim, the respondent’s eligibility for such benefits is taken into account in determining his liability, as is any pension received from a superannuation fund (FLA section 75(2)(f ) and 75(3)/90SF(3)(f ) and 90SF(4)). The first scenario is more likely, with the effect being—at least in theory—that the responsibility of the state to support ex-wives and de facto partners is more likely to be transferred back to 61 For a more detailed discussion of the history of spousal maintenance in Australia see Lisa Young, Geoffrey Monahan, Adiva Sifris and Robyn Caroll, Family Law in Australia, 8th edn, LexisNexis Butterworths, Chatswood, 2013, [10.5]–[10.14]. 62 Anne Marie Lanteri, ‘Property and Spousal Maintenance’, Television Education Network, 2013, reproduced in Altobelli, above n 46, p 601. 63 In the Marriage of Hope [1977] FLC 90–294 (Hope).

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the private domain. As mentioned earlier, however, unlike the child support context, there is now no social security requirement that applicants first pursue their spousal or de facto maintenance entitlements,64 although FLA section 44(4)(b)/44(6)(b) allows the court to give leave to apply for spousal or de facto partner maintenance out of time on the basis of the applicant’s social security reliance at the end of the standard application period. While a shift away from the ideal of a ‘clean break’ was driven predominantly by the then Hawke Federal Government’s desire to reduce social security costs, it was also consistent with an increasing recognition that the gains to women throughout the 1960s and 1970s should be seen in the light of a number of qualifications, including the clustering of women in part-time, junior and non-professional, and thus lower paid, occupations, and the continuation of women’s greater responsibility for unpaid work (including the care of children) within the home, despite the egalitarian attitudes of both men and women in this regard.65 These factors form the social and economic backdrop against which Australian family law continues to operate (Chapter 10). The following discussion suggests that in the 1990s these factors appeared to inform the Full Court’s approach to deciding spousal maintenance cases more obviously than they do now. However, as the following discussion also suggests, caution should be exercised when identifying any strong judicial trends in this area, given that there are very few reported cases and that sometimes spousal and de facto partner maintenance orders may serve a number of functions at the same time.

15.4.2 practical Preliminaries The FLA spousal maintenance provisions are found mainly in Part VIII of the Act, while the de facto partner maintenance provisions are found mainly in Part VIIIAB of the Act (13.2.1). The de facto partner maintenance provisions became operative from 1 March 2009 as part of the de facto financial reforms (2.4.1.2 and 4.2.1). An application for FLA spousal or de facto partner maintenance orders can be made to the FCoA, the FCCoA, or a court of summary jurisdiction.66 Most of the cases discussed in this chapter are decisions of the Full Court of the FCoA, on appeal from first instance decisions of the FCoA or the FCCoA, often for interim spousal maintenance orders (15.6.1).

64 In the past, the Social Security and Veteran’s Entitlements (Maintenance Income Test) Amendment Act 1988 (Cth) stipulated a compulsory child and spousal maintenance requirement on social security beneficiaries. This meant that applicants for supporting parent’s or widow’s pensions under the Social Security Act 1947 (Cth) (now repealed) had to commence spousal as well as child maintenance claims or risk losing their pension: Family Law Council, Spousal Maintenance, above n 5, [4.2]. This is no longer the case. The Social Security Act 1947 (Cth) was repealed by s 3 of the Social Security (Rewrite) Transition Act 1991 (Cth). Social security beneficiaries are not required to commence child and spousal maintenance claims under the Social Security Act 1991 (Cth), the successor to the 1947 Act. 65 Kathleen Funder and Margaret Harrison, ‘Drawing a Longbow on Marriage and Divorce’ in Kathleen Funder, Margaret Harrison and Ruth Weston (eds), Settling Down: Pathways of Parents after Divorce, Australian Institute of Family Studies, Melbourne, 1993, 13, p 22. 66 FLA s 39.

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As discussed at 13.2.4.1, applications for spousal maintenance are a ‘matrimonial cause’ while applications for de facto maintenance are a ‘de facto financial cause’ (FLA section 4(1)) When there is FLA jurisdiction to hear the claim, a claim may not be brought under state law (FLA s 8(1)(a)/90RC) (13.2.3). A key difference, arising from the terms of the states’ referral of powers to the Commonwealth, is that de facto maintenance can only be ordered on the breakdown of a de facto relationship, while spousal maintenance is not so restricted (13.2.4.1).67 An applicant for de facto partner maintenance may face additional challenges in establishing her claim, including the establishment of a de facto relationship within the FLA (the key issues being the relationship’s nature, duration and geographical link with a referring state) (4.2.1 and 13.2.3). Often, an application for spousal or de facto maintenance is made together with an application for property orders. In Bevan68 the Full Court held that there is no binding principle requiring property issues to be decided first, but the court must at least consider what property orders it will make before making maintenance orders.69 Two years later, the Full Court in Clauson70 made clear that if spousal maintenance is sought in addition to property orders, maintenance must be considered after the property order has been determined. This is because the establishment of the threshold requirements for a spousal or de facto partner maintenance order (15.5.3) will be affected by any property orders that are made.71 While this has generally been the preferred approach,72 five years later, in Vautin, the Full Court, took the view that powers to make property and spousal maintenance orders may be considered together.73

15.5 Legal framework: The twofold threshold test FLA section 72/90SF(1) sets out a twofold threshold test for establishing an entitlement to maintenance, which must be met before the court’s power under section 74/90SE(1) to award spousal maintenance may be exercised. Most of the recent case law developments have arisen in the context of the threshold test. Specifically, section 72/90SF(1) sets out that ‘[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’ (emphasis added) due to (a) having the care of a child of the marriage under 18 years of age, (b) limited capacity for employment due to age or physical or mental incapacity, or 67 For an example, see In the Marriage of Eliades (1980) 6 Fam LR 916. More recently, see Stanford v Stanford [2012] HCA 52. 68 In the Marriage Of: John Frank Bevan Appellant/Husband and Merrien Denise Bevan Respondent/Wife [1993] FamCA 95 (Nicholson CJ, Lindenmayer and McGovern JJ)(Bevan). 69 ibid., [37]. 70 Between: Frances Ann Clauson Appellant/Wife and Derek George Clauson Respondent/Husband [1995] FamCA 10; (1995) 18 Fam LR 693 (Barblett DCJ, Fogarty and Mushin JJ) (Clauson). 71 ibid. For a recent example, see Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631, [183] (Cronin J). 72 For a recent example, see Dawson & Dawson [2012] FamCAFC 22, [89]–[92] (Strickland J). 73 Vautin & Vautin [1998] FamCA 135 (Vautin), [44] (Fogarty and Burton JJ; Finn J agreed on this point), quoting Windeyer J in Sanders and Sanders (1967) 116 CLR 366; [1967] HCA 33, 379–80.

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(c) any other adequate reason. This test is sometimes referred to in a shorthand way as ‘the twin elements of capacity and need’,74 but reference to ‘need’ can be slightly misleading, as discussed below.75 In determining whether the threshold test has been satisfied, the court must have regard to the list of factors set out in section 75(2)/90SF(3) (FLA section 72/90SF(1)) (15.5.3). If the threshold test is satisfied, the section 75(2) factors are relevant again when the court considers whether and how to exercise its power to order spousal maintenance under section 74. The section 75(2)/90SF(3) factors are also relevant to property division (as discussed at 13.6.1), although ‘many of its subsections make sense only in the context of one of those … applications and not the others’.76 We return to the section 75(2)/90SF(3) factors later (15.5.3).

15.5.1 Applicant unable to support herself ‘adequately’ The meaning of the section 72/90SF(1) requirement that the applicant be unable to support herself ‘adequately’ has been considered in a number of cases. It is evident that what is ‘adequate’ depends on the circumstances of the individual case, and that while the standard is not one of bare necessity, there is also no requirement that the applicant’s preseparation standard of living be maintained.77

15.5.1.1 A contextual inquiry The contextual nature of the inquiry was underlined in the early case of Astbury,78 in which the Full Court considered that ‘[t]he wording of section 72 seemed to imply that each party should attempt to support him or herself where this is reasonable having regard to the factors listed in section 72 and 75(2)’,79 and that as a result the expectation of self-support would be looked at in context: For example, if the parties have enjoyed a high standard of living and the husband  has  ample resources it may be unreasonable to expect the wife to seek unskilled and low paid employment, especially if the marriage is long and she has had  no recent work experience. On the other hand, where the husband is an average  wage earner and the wife is in good health and has no responsibility for young children it may be unreasonable for her to decline to exercise such workforce skills as she may possess.80 Soblusky [1976] FLC 90–124, 580. See also Anthony Dickey, Family Law, 6th edn, Thomson Reuters, Sydney, 2013, 380. DJM and JLM [1998] FamCA 97 (Baker, Kay and Morgan JJ). For example, in In the Marriage of Nutting (1978) FLC 90-410, ‘adequately’ was defined by the Court as a standard of living that was reasonable in the circumstances, where the circumstances included the fact that the parties were no longer married and that the assets they had shared as a couple had to be divided between them (at 77,094). In contrast, in In the Marriage of Evans (1978) FLC 90-435, the Court held that ‘adequately’ means more than bare necessity. Hence, the standard of living to which a party is accustomed is clearly a matter the Court must take into account when determining what is ‘adequate’ (72,209). In In the Matter Of: Norma Jill Mitchell Appellant/Wife and Anthony Lewis Mitchell Respondent/Husband [1995] FamCA 32, (Mitchell) [60] (Nicholson CJ, Fogarty and Jordan JJ), the Full Court pointed out that it is necessary in determining this issue to have regard to the standard of living of the parties and the financial circumstances of the other person: s 75(2)(b) and (g). 78 Astbury v Astbury (1978) 4 Fam LR 395 (‘Astbury’). 79 ibid., 398. 80 ibid., 399. 74 75 76 77

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In 1995, the Full Court in Mitchell said that: the question whether the applicant can support herself ‘adequately’ is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s. 75(2) and more specifically the paragraphs of that sub- section identified above. (Being sub-paragraphs (a), (b), (g), (j), (k) and (n).)81

More recently in 2008, the Full Court in Kiesinger & Paget82 (15.6.1) concurred with the views expressed in Mitchell. However, as Riethmuller and Smith have observed, given the considerable breath of discretion, ‘it is difficult to know whether in every case the award is higher or lower as a result of factors relating to conduct or entitlement, rather than a simple assessment of the reasonable needs of the parties’.83 This was supported by their case analysis, which found that to calculate the amount of maintenance to be ordered, judges commonly first subtracted each party’s necessary expenses from their income. If there was an excess on the part of the respondent and a shortfall on the part of the applicant, maintenance was awarded up to the value of the shortfall. However: Whilst the judgment narratives were about the comparison of need and capacity it appeared that the actual amounts ordered could have been informed as much by individual judges’ and [f ]ederal [m]agistrates’ personal views of ‘fair’ contributions in particular cases.84

Bevan, referred to earlier, is illustrative of these observations as well as the balance that the court tries to achieve. While maintaining that there was no requirement that a wife’s pre-separation standard of living be maintained, the court also considered that an applicant should not have to exhaust her modest capital to support herself before a claim could be established: [W]e do not think that the law requires that a wife should deplete an already comparatively meagre capital sum, to enable a much higher earning husband to avoid his obligation to maintain a former spouse who is in financial circumstances such as those in which she finds herself. She may well wish to apply all or part of that sum to the purchase of new premises and we do not think that she should be prevented from doing so should she desire it.85

Indeed, the approach taken by the Court in Bevan underlined that the threshold question regarding the applicant’s financial position is not ‘need’, but whether she can support herself ‘adequately’, which may encourage a more generous outcome in her favour. In Bevan, the Court held that the wife (who at the time of the trial was 51 years old, was in part-time employment as a cook for $224 per week, and as a result of property orders 81 Mitchell [1995] FamCA 32, [62] (Nicholson CJ, Fogarty and Jordan JJ). 82 Kiesinger & Paget [2008] FamCAFC 23 (Coleman, Warnick and Thackray JJ). 83 Riethmuller and Smith, above n 1, p 17, citing decisions of Nygh J in Aroney and Aroney (1979) FLC 90-709, 78,790 and Hirst and Rosen (1982) FLC 91-230, 77,250, as well as the comments of the Full Court in In the Marriage of Beck, W.T. and Beck, J.F. (No. 2) (1983) FLC 91-318. 84 Riethmuller and Smith, above n 1, p 48. 85 Bevan [1993] FamCA 95, [43].

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was to receive $180,000 after the sale of the matrimonial home) had needs that justified an award of $30 per week in spousal maintenance. The husband (who was also 51 years old, was employed as a gravedigger for $602 per week net and would receive $100,000 after the sale of the matrimonial home) was considered to have a capacity to pay $100 per week in spousal maintenance. The result was that the husband was ordered to pay the wife $50 a week in spousal maintenance in addition to the property orders that had given her a considerably larger portion of the asset pool, constituted in this case by the matrimonial home.86 The Court’s assessment of the parties’ respective financial positions in Bevan also suggested the ongoing, although unstated, relevance of fault in family law decision making, and thus a ‘punitive’ policy rationale for spousal maintenance. Although there is no express reference to matrimonial fault in the Court’s reasoning, it is arguable that the husband’s behaviour influenced the Court’s more sympathetic treatment of the wife, evident in the ultimate decision. In Bevan, the 32-year marriage broke down when the wife discovered her husband’s 16-year sexual involvement with their next-door neighbour, which had resulted in two children aged 12 and nine for whom he had been paying child support of $75 per week. The Full Court accepted that events surrounding the breakdown of the marriage had increased the wife’s needs, as her capacity to work had been reduced. She had suffered from severe anxiety and depression, though her long-term prognosis was reasonably good. The husband also had health problems (namely, leukaemia and heart disease), but the trial judge found that he was able to maintain his then earning capacity. Thus it appeared that the wife was awarded spousal maintenance on a permanent basis even though her long-term prognosis was good, and a generally less sympathetic treatment was given to her husband, although the final orders were for a lower amount of spousal maintenance than was ordered at first instance. When interim maintenance is sought, the key question is: how much does the applicant have to deplete her savings before trial in order to be in a position where interim maintenance will be ordered? The cases once again suggest that the fact that the applicant has investments will not necessarily mean that she is able to support herself ‘adequately’ (for example, Kiesinger & Paget, discussed at 15.6.1).

15.5.1.2 Need may subsist despite receiving the bulk of the property A further issue that has arisen is whether, in a case where the applicant has received the bulk of the parties’ property by way of property settlement, the court will also make orders for spousal or de facto partner maintenance.

86 The property orders were made on the basis that the parties’ contributions were equal, but that the wife was entitled to an extra $20,000 on the basis of contributions due to the husband having paid $45,000 in matrimonial assets to support two children whom he had fathered with the next-door-neighbour. An adjustment of a further $20,000 was then made in the wife’s favour on the basis of the s 75(2) factors—in particular, the husband’s superannuation entitlements.

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The answer is that maintenance orders are less likely, but are not out of the question. The outcome seems to depend a great deal on how much property there is to divide: where the property of the parties is substantial and the wife receives enough of this to be in a position to support herself ‘adequately’, maintenance orders are less likely. So, for example, in Re B and B87 the wife was awarded 70 per cent of the net asset pool of $2,915,986. The wife received the former matrimonial home valued at $1,715,000, and assets of a net value of $326,277. The Court held that in these circumstances it would not be ‘proper’ under FLA section 74 to award spousal maintenance as the wife was able to ‘adequately’ support herself. In contrast is Mitchell,88 a 2005 case involving a much smaller property pool that also indicated Full Court support at that time for a more ‘compensatory’ approach regarding spousal maintenance. In Mitchell the trial judge, Moore J, had made property orders dividing the property pool (which had a net value of about $300,000) 90 per cent to the wife and 10  per cent to the husband.89 The trial judge dismissed the wife’s spousal maintenance claim, partly because the property orders favoured the wife so strongly.90 The Full Court, allowing the wife’s appeal, held that the threshold question of whether the applicant could support herself ‘adequately’ is not to be determined at a ‘subsistence’ level and is to be determined having regard to the list of matters in section 75(2) (15.5.3), of which (j) and (k) were considered particularly relevant on the facts. Section 75(2)(j) refers to 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. Section 75(2)(k) refers to the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration. In the light of these paragraphs, the Full Court in Mitchell held that regard must be paid to the circumstance that the husband in that case had acquired his professional skills as a barrister (and thus his present high earning capacity) during the marriage, while at the same time the wife sacrificed her professional skills as a nurse to care for the family. The Court further held that the trial judge had erred in dismissing the wife’s spousal maintenance claim partly on the basis of the quantum of property she would receive under the property orders. The Court considered that the wife’s property award was a ‘modest amount in the circumstances’,91 as the matrimonial home was to be sold, and out of that sum the wife had to pay the removal expenses for herself and her two sons, try to purchase a smaller home or a unit, pay her legal fees, and try to set aside a financial nest egg against future contingencies and uncertainties such as illness, holidays, or other significant changes in her life. 87 Re B and B [2000] FamCA 734. See also Clauson [1995] FamCA 10. 88 Mitchell [1995] FamCA 32 (Nicholson CJ, Fogarty and Jordan JJ). 89 While the trial judge had found that the parties’ contributions were equal, a substantial adjustment was made in the wife’s favour on the basis of the s 75(2) factors due to the husband’s much stronger position in terms of his income and financial resources. 90 The other reason for dismissal of the wife’s claim to spousal maintenance was that the trial judge was not convinced that the wife had taken proper efforts to increase her income—a point considered later (15.5.1.3). 91 Mitchell [1995] FamCA 32, [66] (Nicholson CJ, Fogarty and Jordan JJ).

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15.5.1.3 Do applicants have to demonstrate attempts to be self-sufficient? An important issue that arose in Mitchell regarding the wife’s inability to support herself ‘adequately’ was the extent to which she was under an obligation to seek paid employment. At first instance, Moore J had dismissed the wife’s claim for spousal maintenance partly because she had not ‘taken sufficient steps to persuade [the Court] that she had made proper efforts to increase her income’.92 Since obtaining work as a casual receptionist at a physiotherapy centre in early 1993, the position the wife held at the time of the trial, ‘[h]er evidence about attempts to obtain employment was, in effect, that she had made enquiries in 1993, but had made no enquiries since. She said she regularly checked newspaper advertisements but concluded that none of the positions advertised were likely to be within her capacity’.93 While conceding that the wife could not be expected to find employment as a nurse given that she had last worked as a registered nurse 27 years ago, Moore J considered that the wife’s efforts to look for additional receptionist work had been ‘little more than gestures’.94 The Full Court held that the trial judge had erred on this point. The Court noted that the wife was in her mid-50s, had been out of the workforce for long periods of time during the 30 years of marriage, and that those periods out of the workforce arose from her commitment to the parties’ children and home. The Court considered on these facts, and the wider social conditions, that the wife would be unable to find employment to support herself adequately. Conversely, the Court did not doubt that the husband had the capacity to meet a reasonable maintenance order.95 A particularly interesting aspect of Mitchell was the attention paid by the Court to the wider social conditions that were likely to affect the wife’s ability to obtain employment to support herself adequately, including taking ‘judicial notice’96 of social science research regarding the economic impact of separation and divorce on women.97 However, it should be remembered that: [T]he decision in Mitchell was handed down prior to the commencement of the operation of the Evidence Act which came into effect on 18 April 1995. Further, it is clear that the statements of the Full Court recognised that appropriate research material could be properly referred to as background to a matter before the Court, but not in substitution for relevant evidence.98

The Evidence Act 1995 (Cth) provides that proof is not required of matters that are ‘common knowledge’ (section 144), but research evidence does not fall into this category.99 92 ibid., [56]. 93 ibid., [70]. 94 ibid., [55]. 95 Cf M v M [2006] FamCA 868 in which the Full Court held that the wife (who had an Arts degree and had worked in the public service but not been in paid employment outside the home since 1996, and was the primary carer of the parties’ two children aged nine and six) had made no effort to find employment and deliberately avoided seeking re-employment in the public service or in some other clerical work because she did not want that work and wanted to become a teacher. The wife thus failed to meet the threshold test of inability to support herself adequately. 96 Meaning a fact so obvious and well established that judges take notice of it. 97 Mitchell [1995] FamCA 32, [79]–[80]. 98 Allen & Green [2010] FamCAFC 14, [49] (Boland J). 99 ibid., [47].

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Nevertheless, Mitchell, Bevan, and also Best100 sent strong signals regarding the ongoing relevance of spousal maintenance, especially in cases where there is a need on one hand, a capacity to pay on the other, and few assets available for division. Mitchell encourages courts to be cautious about assuming that women with employment qualifications who have had disrupted work patterns due to domestic responsibilities are necessarily able to return to the work for which they were originally qualified and are thus able support themselves ‘adequately’. Given the emphasis in the FLA on the applicant’s inability to support herself ‘adequately’, it was not surprising that neither case adopted the compensatory model in the Canadian Supreme Court decision of Moge (15.1).

15.5.1.4 Do needs have to be connected in some way to the marital or de facto relationship? As discussed at 2.3.2 and 13.6.1.4, in relation to property and spousal/de facto maintenance claims, questions still surround the extent to which the needs of the applicant must arise out of the marital relationship or the breakdown of the de facto relationship. The Full Court in Kennon101 expressed reservation about the prospect that ‘any deficit, such as ill-health, unemployment, etcetera, will be given full effect within section 75(2) even if it arose from factors which were unconnected to the marriage’ on the basis that ‘[t]his gives rise to the “social engineering” objection’, but expressed no final view on it.102 Similar questions have also arisen in other jurisdictions. For example, in 1999 the Supreme Court of Canada in Bracklow103 held that the husband had an obligation to pay the wife spousal support due to need arising from her illness and disability and not related to roles adopted in the marriage. The Court viewed marriage as involving basic social obligations, with the primary responsibility falling on the former spouse to support his ex-partner, rather than on the State: The real question in these cases is whether the state should automatically bear the cost of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting. Some suggest it would be better if the state automatically picked up the cost of such cases … However, as will be seen, Parliament and the legislatures have decreed otherwise …104 100 In the Appeal Of: Suzanne Best Appellant and Gary William Best Respondent [1993] FamCA 107 (Best), the wife’s application had originally included a claim for lump sum spousal maintenance but this was not pursued at trial. In the course of deciding that the husband’s partnership interest was ‘property’ that could be subject to FLA s 79 orders, the Full Court specifically referred to the lapsed spousal maintenance claim, and commented: ‘In cases such as the present where there are minimal assets, but on one side significant needs and on the other a significant future earning capacity, the power to order lump sum maintenance, which may be met by annual payments over a period of years against that income or savings from it, may be an appropriate course … Having regard to the manner in which this case has been conducted throughout on this issue it is unnecessary for us to consider this further. But it should be recognised that the “clean break” concept may have been taken to extremes in the past and requires careful reconsideration in the light of changing economic and social circumstances and values and the benefit of experience over the past decade or so: see, for example, the discussion in Moge’s case’, [125]–[126] (Fogarty, Lindenmayer and McGovern JJ). 101 Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal [1997] FamCA 27; (1997) 22 Fam LR 1 (Fogarty, Baker and Lindenmayer JJ) (Kennon). 102 ibid. 103 Bracklow v Bracklow (1999) 169 DLR (4th) 577 (Bracklow). 104 ibid., 591–2 (McLaughlin J, delivering the judgment of the court).

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More recently in England, some inconsistency on this issue was evident in the two leading House of Lords judgments in Miller; McFarlane.105 Lord Nicholls seemed not to view ‘need’ and ‘compensation’ elements as having to arise from the marital relationship,106 while Baroness Hale took a stricter view.107

15.5.1.5 Differentiating between the applicant’s and her household’s expenses A concern often expressed in judgments is that spousal and de facto partner maintenance should not be used as a ‘back door’ way of obtaining child support, given that separate legislative provisions cover the latter (Chapter 11). The threshold test for maintenance requires that the applicant is unable to support herself adequately, suggesting the need to delineate between her individual necessary expenses and those of her household, which may include children of the marriage or de facto relationship. Issues arise, however, regarding the feasibility of doing so given the realities of household expenditure, and whether doing so is in fact required given that several section 75(2)/90SF(3) factors suggest that the children’s costs are relevant: [A] strict line between costs referable to the custodial parent and those referable to the children cannot always be drawn with clarity. Some expenditure relating to the household as a whole, such as the provision of housing, electricity, fuel, transport, and possibly food and groceries, cannot be strictly divided … They are relevant to spousal maintenance in pursuance of s.75(2) paragraphs (c), (d) and (e).108

There is ongoing lack of clarity in the Full Court authorities on the approach to be taken, beginning with Redman109 in which the Full Court, deciding an appeal by a husband against interim spouse maintenance orders in favour of the wife as well as interim child maintenance orders, took the view that it was not essential to separate out the wife’s costs from the children’s costs110 but also allowed the husband’s appeal on the basis that the trial judge ‘could and should have made some allocation in respect of the maintenance of the wife and of the children’.111 It thus appeared ‘that it was the failure of the trial Judge to apportion the maintenance order as between the spousal maintenance component and the child maintenance component that resulted in the appeal being upheld, rather than by reason of the wife’s failure to adequately separate out the expenses personal to her from those attributable to the needs of the children’.112 In 2000, the approach in Redman was revisited by the Full Court in Stein,113 which once again involved a husband’s appeal against interim spousal orders that he pay the wife $1,500 Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. ibid., [15]. ibid., [137]–[144]. In the Marriage Of: James Michael Redman Appellant and Yvonne Annette Redman Respondent Appeal [1987] FamCA 2 (Redman), [25] (Evatt CH, Lindemayer and Nygh JJ). 109 ibid. 110 ibid., [23]. 111 ibid., [28]. 112 Drysdale & Drysdale [2011] FamCAFC 85, [34] (Coleman J) (Drysdale). 113 Stein & Stein [2000] FamCA 102 (Kay, Holden and Dessau JJ) (Stein). 105 106 107 108

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per week pending determination of the wife’s application for property settlement. The husband, who had a level of wealth in excess of $20 million, was paying child support for the parties’ four children who lived with the wife. The issue was the quantum of maintenance to be paid. Allowing the appeal, the Full Court held that the trial judge, Steele J, (among other things) had erred in taking into account the wife’s duty to maintain the children under section 75(2)(d) when determining her inability to support herself: It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of ‘the commitments of each of the parties that are necessary to enable the party to support … a child … that the party has a duty to maintain’ has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support.114

More recently in Drysdale115 Coleman J, sitting as the Full Court in an appeal by  a  husband  against interim spousal maintenance orders made by the FMCoA, considered that: [A]t least inferentially, Stein may be regarded as having overturned earlier decisions which expressly or impliedly accepted that, at least in an interim application, spousal maintenance could be sought in reliance upon the undifferentiated expenses of the claimant and children of the marriage in his or her care and control.116

Coleman J was, however, prepared to allow an overlap between the wife’s and the children’s needs when considering an interim spousal maintenance order: Despite the uncertainty which attends this issue, and with respect to the decision in Stein, which is clearly distinguishable from the present case on its facts, the Court perceives no impediment, in an interim spousal maintenance application such as the present, to having regard to ‘commitments’ of the wife ‘that are necessary to enable’ her to support herself and a child who she has ‘a duty to maintain’.117

In taking this approach, Coleman J was influenced (as the Full Court was in Redman) by the interim nature of the proceedings, which presented time and evidentiary limitations but  also meant that hardship resulting from any orders made could be addressed at a later stage: It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested … The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order. There is no reason to think, in the circumstances of this case, that any unfairness or hardship visited upon either 114 115 116 117

ibid., [49] (Kay, Holden and Dessau JJ). Drysdale [2011] FamCAFC 85 (Coleman J). ibid., [37]. ibid., [38].

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party by reason of the interim spousal maintenance order could not, or will not, be addressed in the final orders of the Court.118

Coleman J indicated that a different outcome would be likely in an application for a final spousal maintenance order, ‘partly for the reasons referred to in Stein, and in part by virtue of the provisions of the child support legislation, and its philosophical underpinning’.119 This suggests the greater danger of failing to differentiate between personal and household costs when applying for final maintenance orders. Thus while family law courts have not gone as far as holding that it is essential to separate out expenses, it is also evident that there is a risk in not doing this, with the risk being highest when final orders are sought. Riethmuller and Smith’s 2008 analysis of recent spousal maintenance cases in which interim or final orders were made suggests that courts are in fact doing this. They found that while responsibility for children was an important factor, it did not appear that spousal maintenance was in effect being used as child support: the impact of child caring is the relevant factor, not the number of children. This is a logical result. It demonstrates that spousal maintenance is not being used as a substitute or top-up for child support. Logically the number of children should not make a significant difference to the expenses which relate to the applicant spouse’s self support.120

15.5.2 Respondent’s liability to maintain to the extent ‘­reasonably’ able The second limb of the section 72/90SF(1) threshold test requires the applicant to establish that the respondent has the capacity to pay the maintenance requested. More precisely, the respondent is only liable to maintain the other party to the extent that he is ‘reasonably able to do so.’ The court is able to look to the respondent’s sources of wealth beyond income, to the respondent’s property, financial resources and earning capacity (section 75(2)(b)/90SF(3) (b)), when determining his ability to pay maintenance.121 However, the source of wealth and the respondent’s control over it must be sufficiently identified for orders to be made. For example, in Bondelmonte122 (see also 15.6.1) the Full Court allowed a husband’s appeal against interim spousal maintenance orders because the trial judge, Fowler J, had erred in ordering that the husband should pay an amount of spousal maintenance and child support exceeding his stated income on the basis of his undisclosed financial resources, as the order was not open to him on the evidence and he had not explained what constituted those resources. While the husband was the director of several companies that were the trustees of trusts from which he received regular distributions, there was no evidence that he controlled the trusts, which he said were under his brother’s control.123 118 119 120 121 122 123

ibid., [40]. Similar observations were made by the Full Court in Redman [1987] FamCA 2. Drysdale [2011] FamCAFC 85, [38]. Riethmuller and Smith, above n 1, p 50. Maroney and Maroney [2009] FamCAFC 45, [56] (Coleman J, sitting as the Full Court). For example, Bondelmonte & Bondelmonte [2014] FamCAFC 29 (May, Murphy and Benjamin JJ). See also 15.6.1. For example, Bondelmonte & Bondelmonte [2014] FamCAFC 29, [11] (May and Benjamin JJ).

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15.5.2.1 Existing income or earning potential When determining the respondent’s capacity to pay maintenance, the court is not limited to his existing income and can look at his earning potential. This will have particular relevance when a husband minimises his income to avoid spousal or de facto maintenance (and also child support liability—see 11.5.1.2).124 However, the Full Court’s decision in DJM and JLM125 indicates a greater willingness to take into account the respondent’s earning capacity in relation to child support than spousal maintenance, underlining again the greater priority attached to children’s financial support. In DJM and JLM the husband had an income of at least $200,000 a year from his management consultancy business. In 1996, shortly after the marriage had broken down but before court orders had been made, he had taken a university academic position, which resulted in his income being reduced to about $80,000 gross, including consultancy earnings. The trial judge held that the wife had a very limited earning capacity, especially as four of the five children of the marriage lived with her and all were aged between four and 16. Her needs for self-support were considered by the trial judge to be at least $500 a week, and the husband was considered to have the capacity to meet those needs. After awarding the wife 80 per cent of the property pool of $474,596, the trial judge made orders for spousal maintenance of $500 per week, based on the assumption that the husband’s income was that which he earned as a consultant (in other words, $200,000 per year rather than $80,000 per year). The trial judge also held that child support orders should be based on this assumption. In the trial judge’s view, the husband lacked bona fides in taking up employment that was less well paid and it was not unreasonable to expect him to continue earning at the higher rate. The husband appealed the property and spousal maintenance orders. Regarding spousal maintenance, the Full Court held that the husband’s earning capacity was relevant to whether he was reasonably able to pay spousal maintenance under section 72, or under section 75(2)(o) (‘any other fact or circumstance’). The Court also emphasised the section 72 proviso that a spouse is liable to maintain to the extent that he is ‘reasonably’ able to do so. The husband’s unchallenged evidence was that he could only earn $200,000 per year by working 80 hours a week, which meant being away from home for long periods, and that his obligations to care for his children—especially since the marriage had broken down—now precluded him from now working those hours (one child lived with the father and there were court orders for the father to spend time with three of the four children living with the mother). The Full Court considered that, despite the trial judge’s findings regarding the husband’s ‘devious and manipulative nature’,126 his case regarding his ‘reasonable’ capacity to pay spousal maintenance was compelling and reduced the amount of spousal maintenance to $150 per week. In its decision, the Full Court in DJM and JLM made some observations about the relevance of the husband’s capacity to earn income in the differing contexts of child support, 124 Lisa Young, ‘Earning Capacity and Child Support’, above n 2. 125 DJM and JLM [1998] FamCA 97 (Baker, Kay and Morgan JJ). 126 ibid., [20.12].

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property and spousal maintenance proceedings. The Court emphasised that ‘the duty to support children is generally recognised as a duty higher than any other duty other than self-support’, being ‘governed by legislation that emphasises and prioritises the obligation of parents to support their children’.127 Property orders, in contrast, were arrived at on the basis of what is ‘appropriate’ (FLA section 79(1)/90SM(1)), and it was relevant in deciding this to consider the party’s capacity to earn an income. The basis for spousal maintenance liability differed again—it depended on the claimant’s inability to support herself ‘adequately’ and then was payable only to the extent that the liable spouse was ‘reasonably able’ to pay. As a result, the Court considered that there was nothing inconsistent with a judge finding that it would be unreasonable to expect a spouse to work harder in order to pay spousal maintenance, yet take that spouse’s capacity to work into account when making property orders. This scale of financial priorities underlines that child support is the top financial priority post-divorce. Viewing the husband’s employment potential as being relevant to justifying a more generous property settlement to the wife, but not necessarily relevant to spousal maintenance, would seem to have the effect of making maintenance applications even less likely, at least where there is sufficient property in the pool.

15.5.2.2 When the income of the respondent significantly exceeds both parties’ needs Our discussion so far has indicated that ‘adequately’ is to be interpreted in the light of the overall circumstances of the case. A wife cannot necessarily expect to maintain her pre-separation standard of living, but that there is some legislative scope for looking at her ability to support herself ‘adequately’ relative to the overall wealth of the couple—FLA section 75(2)(b) and (g)/90SF(3)(b) and (g) direct the court to have regard to the standard of living of the parties and the financial circumstances of the other person. Section 75(2)(g) was recently considered in Carmel-Fevia,128 although in the context of making property orders. Carmel-Fevia involved a net asset pool of $435 million (of which $364 million was brought into the relationship by the husband)129 and a relationship of just over six years’ duration, during which the parties had two children and the wife played a significant role in caring for the husband’s three children from a previous marriage. The husband was the chairman of a large group of companies, the wife’s main contribution was as a homemaker, and the parties enjoyed a ‘luxurious standard of living’.130 On separation, the wife applied for property, spousal maintenance and child support orders. Justice Cronin, while being careful to distinguish between the property and maintenance contexts, awarded the wife an additional $10 million of the parties’ property for the section 75(2) factors. While Cronin J saw ‘no reason why the wife should not have the  benefit of a standard of living judged by the benchmarks set by the husband during the marriage’,131 he also emphasised that the purpose of section 75(2)(g) was not to provide for the 127 128 129 130 131

ibid., [17.40]. Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631 (Cronin J) (Carmel-Fevia). ibid., [61]. ibid., [61]. ibid., [179].

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continuation of ‘untrammelled expenditure’.132 Justice Cronin declined to make spousal maintenance orders in the wife’s favour given that the property orders he proposed to make would see her receive $19.5 million of the parties’ $435 million net asset pool, in addition to child support of $39,000 per annum and non-periodic child support (being the children’s education, medical, extra-curricular and telephone expenses).133

15.5.3 The section 75(2)/90SF(3) factors The section 75(2)/90SF(3) factors are relevant to both property and maintenance proceedings. In relation to maintenance proceedings, section 74/90SE(1) provides that in spousal/ de facto partner maintenance proceedings, the court ‘may make such order as it considers proper for the provision of maintenance in accordance with’ this Part/Division. Part VIII/ Part VIIIAB Division 2 Subdivision 3 contain section 72/90SF(1) (considered earlier) and section 75(2)/90SF(3). The latter comprises a list of considerations that the court must take into account both when considering whether the section 72/90SF(1) threshold test has been met (see earlier) and when exercising its discretion under section 74/90SE(1) to order maintenance (section 75(2)/90SF(3)). While the ‘primary work’ of the section 75(2)/90SF(3) factors is in relation to spousal and de facto partner maintenance, the same factors are also relevant to section 79/90SM property proceedings (13.6; as illustrated by Carmel-Fevia (15.5.2)). A lack of clarity has sometimes been evident about how section 75(2)/90SF(3) applies in each context, although the Full Court has repeatedly attempted to emphasise that the legislative requirements differ (namely, the court may make such property order as it considers ‘appropriate’ where it is ‘just and equitable’ to do so, and such order for spousal maintenance as it considers ‘proper’ for maintenance where the applicant is unable to support themselves adequately and the respondent is reasonably able to do so (or to the extent that they are able to do so)).134 Although the wording of section 75(1)/90SF(2) indicates that the section 75(2)/ 90SF(3) factors comprise an exhaustive list, the final provision, section 75(2)(o)/ 90SF(3)(r), is a broad provision that allows the court to consider ‘any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’. Many of the section 75(2)/90SF(3) paragraphs overlap, more than one factor may apply in a given case, and their relevance will differ from case to case. The factors do, however, fall into three main (but to some extent, overlapping) categories: (a)

the parties’ post-separation personal circumstances (including their age, health, earning capacity, financial resources, commitments necessary for self-support and support of others they have a duty to maintain, and any property order made under the FLA or any financial agreement binding between the parties);

132 ibid., [182]. 133 ibid., [183]. 134 See, for example, Clauson [1995] FamCA 10; (1995) 18 Fam LR 693 (Barblett DCJ, Fogarty and Mushin JJ).

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(b)

(c)

the past circumstances of the marriage (contributions of the applicant to the economic well-being of the other party, and the extent to which the duration of the marriage has affected the applicant’s earning capacity); and s 75(2)(o)/90SF(3)(r) and considerations of conduct (in essence, only conduct having financial consequences is considered relevant).135

A relatively brief examination136 of the section 75(2)/90SF(3) factors follows, considered under these headings, and focused on issues that are particularly unsettled or contentious at present.

15.5.3.1 Parties’ post-separation circumstances Many of the section 75(2)/90SF(3) factors relate to the parties’ post-separation circumstances, particularly their personal circumstances, responsibilities regarding care or support of others, and financial support received from others.

15.5.3.1.1 Parties’ post-separation personal circumstances As regards the parties’ post-separation personal circumstances, section 75(2)(a), (b), (d), (g), (h), (ha), (n), (naa) and (p)/90SF(3)(a), (b), (d), (g), (h), (i), (n), (o), (p), (s) and (t) are particularly relevant. Section 75(2)(a)/90SF(3)(a) refers to the age and health of each of the parties. Its application is likely to overlap with other section 75(2)/90SF(3) factors including section 75(2)(b)/90SF(3) (see 13.6), which refers to 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’.137 In combination, these provisions may justify an award of spousal or de facto partner maintenance to an older woman who has been out of the workforce for many years due to domestic commitments during the marriage. In DJM and JLM,138 the Full Court held that the earning capacity of the parties was a factor that, while not specifically mentioned in section 75(2)(b), could be considered by the court in considering the respondent’s reasonable capacity to pay under section 72, or under section 75(2)(o) (‘any other fact or circumstance’). Generally, however: [T]here has been less focus on the earning capacity of payers. Whereas payees must establish need—which will usually turn either on their income or their earning capacity—there is no obligation cast on payers necessarily to meet that need. In that sense, there is no implicit obligation to organise their affairs in such a way as to put themselves in a position to help support their former spouse. The question is rather whether it is reasonable to expect the respondent spouse to work harder than they are, to provide spousal support … a review of recent case law on earning capacity in spousal maintenance cases reveals, by and large, a discussion of individual women’s 135 Soblusky (1976) 2 Fam LR 11,528. 136 For a more detailed examination, see CCH International, Australian Master Family Law Guide, 6th edn, [13-130]–[13-340]. 137 See also FLA s 72(1)(b)/90SF(1)(b)(ii). 138 DJM and JLM [1998] FamCA 97.

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ability to work with, generally, a heavy onus on those women having to establish why they cannot support themselves.139

DJM and JLM suggests that where the issue is deliberate failure to maximise earning capacity (rather than reduced capacity for employment having regard to physical and mental capacity, which would be covered by section 75(2)(b)/90SF(3)(b)), this should be considered under s 72/90SF(1) or section 75(2)(o)/90SF(3)(r).140 As discussed at 13.3.1.2, the term ‘financial resources’ in section 75(2)(b)/90SF(3) (b) is not defined in the FLA but has been defined in the cases to mean something not covered by ‘income’ and ‘property’.141 It has been interpreted widely, to cover all financial advantages that are, or are likely to be, enjoyed by a party.142 Perhaps the most dubious example in the spousal maintenance context has been the prospect of remarriage—in some early cases it was held that this could be taken into account here or under section 75(2)(o) (considered later), but only in the light of other statistical or firm evidence on point, and not just on the basis of the judge’s personal assessment of the party’s appearance when she was giving evidence.143 In contrast, more recently in the tort law context, the HCoA held in 2002 in De Sales v Ingrilli144 that prospects of remarriage should not be taken into account in calculating damages in a dependant’s action under fatal accidents legislation unless there was evidence at trial that a new relationship has been formed, and that ordinarily, such cases apart, there will be no separate allowance for the possibility, even the probability, that a new relationship will be formed. More commonly, the question arises whether property in the hands of a third party (for example, a trust, a company, or a superannuation scheme) is a ‘financial resource’ of a party to FLA proceedings—usually a husband (or male de facto partner)—under section 75(2)/90SF(3).145 As discussed at 13.3.1.2, such an interest may not be his ‘property’ for the purposes of section 79/90SM proceedings, but it may be taken into account in dividing other property if it is his ‘financial resource’, via section 79(4)(d)/90SM(4)(d), which incorporates the section 75(2)/90SF(3) factors. Indeed, most of the cases interpreting the term ‘financial resources’ have arisen in the context of property proceedings, although Bondelmonte (15.5.2, 15.6.1) illustrates that the issue may also arise in the context of spousal maintenance proceedings. The cases show that in the course of determining whether property in the hands of a third party is the husband’s ‘property’ or his ‘financial resource’,

139 140 141 142 143 144

Lisa Young, ‘Earning Capacity and Child Support’, above n 2. LexisNexis Butterworths, Australian Family Law, vol 1, Family Law Act, [s 75.21]. In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762 (Kelly (No 2)). In the Marriage of Crapp (1979) 5 Fam LR 47; Kelly (No 2) (1981) 7 Fam LR 762. In the Marriage of Rouse (1982) FLC 91-226, 77,224. De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52. See in particular [77]–[80] (Gaudron, Gummow and Hayne JJ), [166] (Kirby J). 145 The following discussion leaves to one side the question of the degree to which the Family Court can interfere with the rights of third parties: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337, discussed at 14.2.1. In Kelly (No 2) (1981) 7 Fam LR 762, that issue was distinguished from the question whether property in the hands of a third party is a ‘financial resource’ of a party for s 75(2)(b).

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the court has looked to the level of control that the husband has over the third party. This, however, may suggest clarity in the case law that is not evident on closer examination. Section 75(2)(d)/90SF(3)(d) refers to commitments necessary for self-support (as well as for support of any children or other person the party has a duty to maintain—see 15.5.1.5 and later in this section). Section 75(2)(d) was amended in 1987 so that only ‘necessary’ self-support was included, thus allowing the court to consider more closely what a party claims to need by way of ‘self-support’. Section 75(2)(g)/90SF(3)(g) refers to ‘a standard of living that in all the circumstances is reasonable’ (see also 15.5.2.2). The considerations that arise here are similar to those that arise in section 72/90SF(1) in relation to the requirement that an applicant must be unable to support herself ‘adequately’. What is ‘reasonable’ will depend very much on the circumstances. For example, if a wife has enjoyed a high standard of living during the marriage and the husband is in a position to maintain it, then a court may order significant maintenance.146 Section 75(2)(h)/90SF(3)(h) refers to the extent to which maintenance may improve the earning capacity of a party. It encourages the court to order spousal or de facto partner maintenance if it will allow the applicant to improve her skills and training, as long as it appears that this will increase her earning capacity.147 One example is Hope148 (15.4.1). Finally, section 75(2)(n) and (p)/90SF(3)(n), (o), (p), (s) and (t) require the court to take into account any property order made under the FLA and any financial agreement that is binding between the parties (14.7). The usual approach that the court consider property orders before making spousal maintenance orders was considered earlier (15.4.2). The FLA amendments in relation to bankruptcy in 2005 (see Chapter 14) included the insertion of section 75(2)(ha)/90SF(3)(i), which provides that the court must also consider the effect of any proposed order on the ability of a party’s creditor to recover their debt. As discussed at 14.2, the FCoA’s longstanding approach has been protective regarding the interests of creditors. In the few cases in which this provision has been considered it has been given ‘varying weight’.149 As noted earlier (15.5.1.4) some uncertainty surrounds whether the parties’ postseparation circumstances must be related to the marriage or the breakdown of the de factor relationship. In Kennon150 the Full Court considered that marital conduct (or, more specifically, fault) was not relevant to spousal maintenance proceedings, spousal maintenance being ‘essentially concerned with issues of need and capacity’.151 The judgment seemed to suggest that marital conduct may be taken into account to determine the relevance of particular ‘needs’ when section 75(2)/90SM(3) is applied in the context of 146 In the Marriage of Evans [1978] FLC 90-435. But cf In the Marriage of Wilson (1989) 13 Fam LR 205. 147 In In the Marriage of Lang (1976) 25 FLR 130 a wife who was a trained primary school teacher wanted to re-train as a pre-school teacher. The Court held that as this would not increase her earning capacity it could not be taken into account under s 75(2)(h) but could be considered under s 75(2)(o) on the ground that if she re-qualified she would be more contented and a better mother. 148 Hope [1977] FLC 90-294. 149 CCH International, Australian Master Family Law Guide, 6th edn, [13-260]. 150 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1, 24 (Fogarty and Lindenmayer JJ). 151 ibid., 21.

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property proceedings but not when it is applied in the context of maintenance proceedings. The issue of the relevance of marital conduct has arisen most often in the context of section 75(2)(o)/90SF(3)(r), discussed later.

15.5.3.1.2 Parties’ responsibilities regarding care or support of others As regards the parties’ responsibilities regarding care or support of others, section 75(2)(c), (d),(e), (l), and (na)/90SF(3)(c), (d), (e), (l) and (q) are of particular relevance. Section 75(2)(c)/90SF(3)(c) refers to whether either party has the care or control of a child of the marriage or de facto relationship152 under 18 years of age.153 Caring for a child who is not a child of the marriage or de facto relationship is covered by section 75(2)(e)/ 90SF(3)(e) (which refers to responsibilities of either party to support another person) and perhaps section 75(2)(d)/90SF(3)(d) (which refers to commitments necessary for selfsupport and for support of any children or other person the party has a duty to maintain). While (d) is limited to a legal obligation to support another person, it has been held that (e) extends to a moral obligation to support another person.154 As noted earlier (15.5.1), it has also been held that in the spousal maintenance context (d) has greater significance in relation to the capacity of the payer to pay child support than to the applicant’s inability to support herself 155—which in turn encourages delineation of the applicant’s personal costs from household costs she incurs because she has children of the relationship living with her. Paragraphs (d) and (e) raise the difficult issue of balancing the needs of the first and second families of the payer, a tension that is often evident in the child support context (see Chapter 11). The weight given to conflicting responsibilities under (e) will depend very much on the circumstances of the case. There is no starting point that a particular person (for example, the first wife) is entitled to preferential treatment.156 Where the respondent has re-partnered and/or has children of a second relationship, ‘a court tries to balance the needs of both families, [but] the reality is that the second family has a practical advantage’.157 Section 75(2)(l)/90SF(3)(l) refers to the need to protect the parental role, which overlaps with section 75(2)(c)/90SF(3)(c). There is very little case law on (l), but in practice it appears that if there are no dependent children the wife will be expected to find  paid work. If there are dependent children, a more lenient approach is likely. For example, in Nixon,158 the wife had two children, aged four and five, in her care and argued that she was unable to support herself because of this, basing her argument in part on section 75(2)(l). The  husband argued that in order for the wife to establish the section 152 See FLA ss 60F (child of a marriage) and 90RB (child of a de facto relationship). 153 This is also relevant under s 72(1)(a)/90SF(1)(b). There is some question whether s 75(2)(c)/90SF(3)(c) extends beyond financial responsibility for being the primary carer to moral and social responsibility but this is less important given that s 75(2)(e)/90SF(3)(e) (see later) does extend to moral and social responsibilities. 154 In the Marriage of Lutzke (1979) 5 Fam LR 553. 155 Stein [2000] FamCA 102 (Kay, Holden and Dessau JJ). 156 This is consistent with the child support legislation, which makes clear that a parent’s duty to financially support his children is owed equally to all his children: FLA s 66C(2)(a), CS (A)A 1989 (Cth) s 3(2)(a). 157 CCH International, Australian Master Family Law Guide, 6th edn, [13-220]. 158 In the Marriage of Nixon, JAW and Nixon, SJ-L(Nixon) [1992] FLC 92-308 (Mullane J).

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72 threshold test she  had to establish that she would consider taking on paid work and putting the children into childcare. The Court disagreed with this argument, believing that it ignored section 75(2)(l): It is the clear intention of the legislation that a parent who does have the alternative of paid work and childcare may instead choose to adopt the role of a full time parent and depending on the circumstances may be found to be unable to adequately support [her]self by reason of having the care of the children of the marriage.159

However, earlier in Heeks,160 the Full Court held that section 75(2)(l) does not give an applicant the absolute choice of a role, and must be weighed against other factors to determine what is reasonable—the question is ‘whether it is reasonable to expect her to contribute to her own maintenance’.161 Section 75(2)(na)/90SF(3)(q) requires the court to take into account the child support obligations of a parent (see Chapter 11). Obviously, a parent paying child support will have less money to pay spousal or de facto partner maintenance, while the other parent is likely to be better off if she is receiving child support. However, the Full Court cautioned in Clauson that ‘it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle[,] which the obligation to care for children usually entails’.162

15.5.3.1.3 Parties’ financial support by others Whether either party receives financial support from a third party is also a relevant  consideration under section 75(2)/90SF(3), particularly section 75(2)(f ) and (m)/90SF(3)(f ) and (m). Section 75(2)(f )/90SF(3)(f ) refers to eligibility for a pension, allowance or benefit via social security or any superannuation fund or scheme. It must be read in conjunction with section 75(3)/90SF(4), which requires the court, exercising its maintenance (but not its property) jurisdiction, to disregard the applicant’s entitlement to any income-tested social security. Thus while the applicant’s entitlement to receive social security is ignored in the context of determining her maintenance claim, the respondent’s social security eligibility is taken into account in determining his liability, as is any pension received from a superannuation fund. The first scenario is more likely, with the effect being—at least in theory—that the responsibility of the State to support separated and divorced women is more likely to be transferred back to the private domain. However, as noted earlier (15.1), unlike the child support context, there is currently no social security requirement that applicants first pursue their spousal or de facto partner maintenance entitlements. In the maintenance context, a superannuation interest held by the applicant may reduce her need for maintenance while the respondent’s superannuation interest may increase his capacity to pay maintenance.163 159 160 161 162 163

ibid., 79,317. In the Marriage of Heeks, G.B. and Heeks, J.M. [1980] FLC 90-804 (Heeks) (Evatt CJ, Asche and Nobbs JJ). ibid., 75,072. Clauson [1995] FamCA 10; (1995) 18 Fam LR 693, 711 (Barblett DCJ, Fogarty and Mushin JJ). CCH International, Australian Master Family Law Guide, 6th edn, [13-230].

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Section 75(2)(m)/90SF(3)(m) refers to the financial circumstances of the cohabitation when either party is in a cohabiting relationship—that is, living together as husband and wife164 (following the de facto financial amendments, it would seem likely that same-sex relationships are included). An example of the application of this section is Re F.165 The wife in Re F was involved with a man, ‘Mr T’. Mr T was a member of the Army and only spent weekends and holidays in the wife’s home. Although he was able to do so, Mr T made no financial contributions to the wife’s household. The wife and Mr T did not view themselves as being in a cohabiting relationship. When the wife applied to the FCoA for spousal maintenance from her husband, Fogarty J dismissed her application. He concluded that the wife and Mr T were living in what might be described as a de facto relationship, subject only to the requirements of Mr T’s employment. Given that this was not a transitory relationship and Mr T had the capacity to contribute financially to the wife’s household, it was considered appropriate to expect this to occur (in contrast, it was considered inappropriate to expect a de facto partner to support children of the marriage). The possibility that a spousal maintenance order might contribute to the support of Mr T also appeared to weigh heavily in the decision: It would … be quite inappropriate for a wife to live in a completely de facto relationship with another person, who contributes nothing to that household although able to do so, and still expect the husband to pay maintenance for her and that household. The husband is obliged to pay maintenance for the children … but is not obliged to contribute to the overall expenses of the support of Mr T and in my view is not obliged to contribute to the wife’s maintenance.166

Re F thus indicates that section 75(2)(m) is not confined to any actual arrangement between the relevant persons, but also includes financial arrangements that would be appropriate in the circumstances.

15.5.3.2 Past circumstances of the marriage The past circumstances of the marriage are a relevant factor, particularly under section 75(2)(j) and (k)/90SF(3)(j) and(k). Section 75(2)(j)/90(3)(j) refers to contributions of the applicant to the income, earning capacity, property and financial resources of the other party. This section was referred to earlier (15.5.1.2), in the context of the discussion of Mitchell. It is the only section 75(2)/90SF(3) factor that looks backwards to consider contributions, in particular the contributions of the applicant. It is often relevant in situations where the wife (or female de facto partner) supported the husband while he obtained further qualifications.167 As the threshold test must still be satisfied, the scope of the section’s application is limited. Section 75(2)(k)/90SM(3)(k), also referred to earlier in the context of Mitchell, refers to the duration of the marriage and the extent to which it has affected the earning capacity of the party seeking maintenance. Some problems of interpretation arise in relation to this 164 165 166 167

Roberts v Roberts (1977) Fam LN 59. Re F (1982) 8 Fam LR 29. ibid., 33. For example, In the Marriage of Tye (No 2) (1976) 2 Fam LR 11,205.

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paragraph. The position is that the court only looks at the extent to which the duration of the marriage has affected the applicant’s earning capacity.168 The courts have defined ‘earning capacity’ broadly to include the capacity to earn income by any means, including earning income from income-producing assets.169

15.5.3.3 Section 75(2)(o)/90SF(3)(r) and considerations of past conduct Section 75(2)(o)/90SF(3)(r) requires the court to consider ‘any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’. It is a very broadly drafted provision that, if interpreted literally, would impose few limits on what the court could consider. A narrower approach, however, emerged in the early days of the FLA’s operation. In Soblusky170 the Full Court’s view was that section 75(2)(o) is limited by the general character of the other paragraphs of section 75(2). All except one (section 75(2)(l)) are of a broadly economic nature and on this basis section 75(2)(o) was similarly limited.171 Relevant facts or circumstances under section 75(2)(o) did not include those relating the history of the marriage ‘but relate only to facts and circumstances of a broadly financial nature’.172 In other words, only conduct having financial consequences would be taken into account. Thus, for example, in Steinmetz173 the husband, an Orthodox Jew, refused to give his wife a religious divorce. The trial judge took this into account under section 75(2)(o), on the basis that the husband’s refusal to give his wife a divorce precluded her from remarrying and thus gaining the financial benefits that remarriage might bring. It was ordered that the amount to be paid to the wife as lump sum maintenance be doubled unless the husband gave the wife a religious divorce within three months. The Full Court upheld the decision.174 There was, however, no indication that the wife had considered remarriage, so this case arguably provides another example of the continuing relevance of marital conduct (or more accurately ‘fault’). As Anthony Dickey has observed, ‘the financial circumstances involved were simply deemed to exist in order to bring the conduct in question clearly within the scope of para (o).’175 Whether section 75(2)(o) allows the court to consider the parties’ conduct is an issue that has often arisen in cases involving violence directed by one spouse or de facto partner (usually the male) towards the other. On the basis of Soblusky, mentioned earlier (in which a husband alleged that his wife had been violent towards him) only violence that has had financial consequences would be relevant under section 75(2)(o)/90SF(3)(r), and the court’s focus would be on those financial consequences including, for example, medical expenses and reduction of a party’s earning capacity due to injuries sustained. More recently, 168 See Dickey, above n 75, 398. 169 In the Marriage of Beck, W.T. and Beck, J.F. (No 2) (1983) 8 Fam LR 340. 170 Soblusky (1976) 2 Fam LR 11,528. 171 The ejusdem generis rule. 172 For a consideration of these different approaches, see Soblusky (1976) 2 Fam LR 11,528. 173 In the Marriage of Steinmetz (1980) 6 Fam LR 554 (Steinmetz). 174 Another example is conduct resulting in the waste or dissipation of family assets: In the Marriage of Ferguson (1978) 4 Fam LR 312. 175 Dickey, above n 75, 409.

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in Kennon176 the Full Court agreed that this was the correct approach in relation to spousal maintenance claims. As noted earlier, while the Full Court held that violence was relevant to section 79 property proceedings (14.6) it took a different approach in relation to spousal maintenance, stating in obiter: The first major decision was In the Marriage of Soblusky. That appeal concerned the question of conduct in the context of spousal maintenance. We think that the conclusion in that case that conduct was not relevant still holds good. Spousal maintenance is essentially concerned with issues of need and capacity.177

It appears, then, that a party may be precluded from arguing that inter-spousal or de facto partner violence should be taken into account in maintenance claims, except to the extent that the violence affects financial consequences in terms of increased needs, which are of relevance under section 75(2)(o)/90SF(3)(r) (and also section 75(2)(b)/90SF(3)(b), discussed earlier). In such cases, then, the presence of violence still influences the end result, even if its presence is not fully acknowledged in the way the case is argued. The way in which section 75(2)(o)/90SF(3)(r) has been interpreted and applied is a particularly clear example of the ‘no fault’ philosophy that has tended to permeate the interpretation of the FLA more generally, even though the Act only expressly removed matrimonial fault as being relevant to divorce and spousal maintenance. From the 1990s, this situation has gradually changed to afford greater (although not necessarily adequate) recognition of the relevance of interspousal and partner violence in both children and property proceedings, but apparently not in relation to spousal and de facto partner maintenance. However, this approach has not meant that issues of ‘fault’ have gone away. Instead, as the discussion in this chapter has suggested, ‘fault’ tends to be raised in an artificial, convoluted way that will ensure relevance for the court proceedings (as in Steinmetz), or appears to have played a part in the court’s decision without being expressly recognised (as in Bevan), or has been left to the parties to work through themselves and is thus still likely to influence how the dispute is handled and resolved. Marital conduct is often very relevant to marital breakdown, and ‘the removal of a formal outlet for the attitudes of divorcing parties is not of itself enough to prevent the expression of those attitudes in the informal process’.178 Working out the appropriate limits of its relevance in terms of legal consequences for the parties to FLA proceedings, and how to enforce these limits, is an ongoing challenge.179

15.6 Orders The types of spousal and de facto partner maintenance orders that can be made are discussed below in some detail, given that a number of cases have arisen in this context. The various 176 Kennon [1997] FamCA 27; (1997) 22 Fam LR 1. 177 ibid., 21. 178 Richard Ingleby, ‘Matrimonial Breakdown and the Legal Process: The Limitations of No-Fault Divorce’, (1989) 11 Law and Policy 1, 13. 179 For a discussion of whether fault should be taken into account in property distributions see, e.g., Anthony Dickey, ‘The Moral Justification for the Alteration of Property Interests Under the Family Law Act’ (1988) 11 University of New South Wales Law Journal 158.

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forms of order indicate, once again, the potential for tension between the competing priorities of achieving a ‘clean break’ and state preference for individuals to utilise private avenues of financial support. Section 74/90SE(1) of the FLA provides that the court can ‘make such order as it considers proper for the provision of maintenance in accordance with [Part VIII/Part VIIIAB, Division 2, Subdivision B]’. The types of orders that can be made are listed in section 80/90SS (also relevant to property proceedings) and include a consent, interim or final order of maintenance via a property transfer, a lump sum (paid in either one amount or instalments), or periodic payments (weekly, monthly, yearly or other periodic sum). In addition, urgent maintenance orders can be made under FLA section 77A/90SG. There is greater capacity to vary maintenance orders than property orders once made (15.7).

15.6.1 Urgent and interim maintenance Spouse or de facto partner maintenance will sometimes be sought on an urgent or, more often, on an interim basis. FLA section 77/90SG allows courts to make an urgent spousal or de facto maintenance order where ‘it appears to the court that the party is in immediate need of financial assistance’. Interim maintenance (and property) orders may be made pursuant to FLA section 80(1)(h)/90SS(1)(h). The distinction between the two was considered in 1982 by Nygh J in Ashton and Ashton:180 An application under s 77 is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte or may have to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing. An application for interim maintenance is a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order. It would be appropriate to make an application for interim maintenance in a case such as this where the proceedings for property settlement cannot be entertained until twelve months have elapsed since separation and it is quite obvious that any maintenance arrangement in relation to the wife, will inevitably have to be reviewed in the light of the property determination … On an application for interim maintenance, the normal procedures relating to applications for maintenance under sec. 74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure.181

In 1987, the distinction was considered by the Full Court in In the Marriage of Hayson.182 The Court made clear that while section 77 is intended to have a narrow, ‘stop-gap’ function aimed at the ‘relief of immediate needs’, interim maintenance is not restricted in the same 180 Ashton and Ashton (1982) 8 Fam LR 675. 181 ibid., 676 (Nygh J). 182 In the Marriage of Hayson [1987] FamCA 13 (Simpson, Fogarty and Lindenmayer JJ). Other examples are Malcolm and Malcolm (1977) FLC 90-020 (Watson SJ); In the Marriage of Williamson (1978) 4 Fam LR 355; In the Marriage of Pritchard (1982) 8 Fam LR 505. More recently Copley & Copley [2010] FamCA 1023 (Dawe J); Grimshaw-Grieves and Grieves [2011] FMCAfam 125 (Scarlett FM).

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way.183 In that case, the parties had been separated for six years and their three children were living with the husband who for a number of years had been paying the wife maintenance of $300 a week. Without informing the husband, the wife leased a three-bedroom home at high rental in the Sydney harbourside suburb of Mossman in order to be near the children and have them stay with her. She then applied for and obtained urgent spousal maintenance orders to fund this. Allowing the husband’s appeal, the Full Court held that: As the authorities to which we have previously referred demonstrate, section 77 is intended to have a narrow ‘stop-gap’ application and is aimed at the ‘relief of immediate needs’. That was not the situation in which the wife was placed in May 1986. Her taking of this lease, particularly without any prior discussion with or warning to the husband, cannot properly be characterised as ‘immediate needs’ so as to call into play the particular provisions contained in section 77.184

In contrast, ‘[i]n a proceeding for interim or permanent maintenance it may be that the Court would have allowed the whole of that amount as an appropriate expense by the wife as part of her needs.’185 As noted earlier (15.1), following Strahan (13.8.1), the increased likelihood that interim property orders will be sought may make it correspondingly less likely for interim maintenance orders to be applied for and obtained. Where interim orders for both property and maintenance are sought, any amount to be received by way of interim property settlement should be considered before a claim for interim spousal maintenance succeeds (mirroring the approach outlined earlier in relation to cases for final orders). This was underlined in Oates & Crest,186 decided before Strahan, in which a wife (a judge working full-time) appealed against orders including that she pay her husband (who was considerably older than her and retired) $107,000 by way of interim property settlement and $984 per week interim spousal maintenance. The Full Court was critical of the trial judge’s (Watts J’s) approach: In our view it cannot be successfully asserted that the trial Judge gave any consideration in his reasons for judgment to the significance of the husband’s receipt of the sum of $107,000 which his Honour later concluded to be appropriate by way of interim property settlement. It is apparent from his Honour’s reasons for judgment that the question of interim spousal maintenance was considered prior to,  and without reference to the question of ‘interim property’ settlement. His Honour thus erred in principle having regard to decisions of the Full Court such as Bevan.187

However, the Full Court in the end did not allow leave to appeal on the spousal maintenance issue. The Court concluded that the interim property order was made so that the husband In the Marriage of Hayson [1987] FamCA 13, [20] (Simpson, Fogarty and Lindenmayer JJ). ibid., [20]. ibid., [18]. Oates & Crest [2008] FamCAFC 29 (Coleman, May and Boland JJ). For a recent case decided after Strahan in which the same approach was taken to an application for interim property and de facto maintenance orders, see Stanton & Brook [2012] FamCA 230 (Watts J). 187 Oates & Crest [2008] FamCAFC 29, [35] (Coleman, May and Boland JJ). 183 184 185 186

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could pay debts and legal expenses, which meant the capital would not be available to him.188 It was also likely that the amount awarded to the husband by interim property order would be likely to be added back into the pool (14.2.2).189 However, Oates v Crest suggests that ‘to successfully apply for both an interim property order and interim spousal maintenance, it should be clear that the interim property order will not or cannot be used to live on … [and] that an interim property settlement, if likely to be notionally added back into the pool ought not to preclude a spousal maintenance claim’.190 A similar reluctance to disrupt interim maintenance orders was evident in Kiesinger & Paget, in which the husband, who ‘acknowledged having personal assets worth about $5.5 million and “trust assets” of about $12.3 million’191 appealed against interim spousal maintenance orders made at first instance by Martin J in the wife’s favour. Justice Martin had found that the wife’s income was $426 per week (in addition to child support of $874 per month) and that the wife’s reasonable expenses of maintaining herself and the parties’ 13-year-old child totalled $2,210 per week. She made interim orders that the husband pay the wife $2,000 per week (inclusive of child support) as well as the child’s school fees and outgoings on the former matrimonial home and the parties’ villa in far north Queensland. On appeal, the husband argued that the wife was able to support herself adequately due to her investments of $279,000. The Court, dismissing the husband’s appeal, concluded that: In our view, it was well open to her Honour to consider that the stark imbalance in the capital resources of the husband and the wife after a lengthy relationship was a relevant consideration in determining that the wife was entitled to look to the husband for periodic support pending the final hearing, rather than having to deplete her investments, which represented only a minute proportion of the wealth of the family.192

In contrast, in the recent case of Bondelmonte & Bondelmonte193 the Full Court allowed the husband’s appeal on interim spouse maintenance orders that he pay the wife $1,000 per week pending further orders (along with a child support departure order for $1,200 per week for the parties’ three children: 11.5.2). The appeal was allowed on the basis that: It is not discernible to us from the trial judge’s reasons how his Honour came to the conclusion that any undisclosed financial resources of the husband were of such a degree to enable payment well beyond the income of the husband as in his evidence. His Honour’s finding appears unsupported by the evidence and was therefore not open to him.194

188 189 190 191 192 193 194

ibid., [44]. ibid., [46]. Vorah, above n 10, pp 4–5. Kiesinger & Paget [2008] FamCAFC 23 at [3] (Coleman, Warnick and Thackray JJ). ibid., [27]. Bondelmonte & Bondelmonte [2014] FamCAFC 29 (May, Murphy and Benjamin JJ). ibid., [62] (May and Benjamin JJ) and Murphy J, [109].

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These cases suggest that, as in the case of parenting and property interim orders, striking an appeal-proof balance between the time and evidence constraints at an interim hearing and the requirement to follow the same legislative pathway as for final orders is likely to present challenges for decision makers. The challenge was alluded to in Stanton & Brook,195 a recent case involving an application for interim property and de facto maintenance orders, by Watts J, who after making clear that the threshold requirements were the same as for final orders, also said (citing earlier authorities) that ‘an approach can be taken with a broader brush’.196 In Bondelmonte & Bondelmonte the Full Court suggested that there might be cases in which the safer course would be not to make interim orders at all, and to list the matter for final hearing: We would note that one of the apparent difficulties in this matter is that it was an interim hearing with all the restrictions of such a limited hearing. In our opinion such a hearing was not an ideal means to determine the difficult question of the husband’s capacity to pay spouse maintenance and child support from income and financial resources. There was no suggestion of urgency in respect of either issue. The better course would have been to find trial dates within a reasonable time frame, although that may not have been possible.197

15.6.2 Periodic maintenance Of relevance to the court when making spousal maintenance (and also property) orders is the  FLA section 81 ‘clean break’ requirement, mentioned earlier (15.4). Property transfers and lump sum payments are consistent with this principle. An order for periodic maintenance is not, but there may be circumstances where an order for periodic maintenance is ‘proper’ in terms of section 74/90SE(1)—for example, when a respondent has a regular income that gives him the capacity to make periodic payments but does not own property that could be used to pay maintenance via a lump sum or property transfer. In DJM  v  JLM198 the Full Court considered the relationship between the section 81 and section 74  requirements and made clear that an order for periodic maintenance is not prevented by section 81, holding that the section 81 ‘clean break’ requirement had to be read subject to the court’s power under section 74 to make such orders for spousal maintenance as it considers ‘proper’. There is no legislative preference in the FLA for periodic maintenance orders versus lump sum or property transfer orders, but in Vautin199 the Full Court (in the course of making an order for lump sum maintenance of $30,000 plus $9,000 towards the purchase of a new car, which was in addition to previous orders for periodic maintenance of $500 per week) held that, while lump sum payments are not limited to a capitalisation of a

195 196 197 198 199

Stanton & Brook [2012] FamCA 230 (Watts J). ibid., [20]. Bondelmonte & Bondelmonte [2014] FamCAFC 29, [42] (May and Benjamin JJ). DJM v JLM [1998] FamCA 97. Vautin [1998] FamCA 135.

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weekly amount200 and may be for other non-periodic amounts, the power to order lump sum maintenance should be exercised cautiously. This is due to the apparent finality of lump sum orders and the difficulties in making financial predictions for the future. The Court considered on the facts that an order for lump sum maintenance was appropriate to meet non-periodic expenditure for the maintenance of the applicant—‘as a “buffer” against unforeseen emergencies’.201 The wife in Vautin was unable to work due to ill-health, but exactly how the lump sum was calculated is not obvious.202 More recently in Dawson & Dawson,203 Strickland J, sitting as the Full Court, held that  the capitalisation approach taken at first instance by the federal magistrate, in reliance  on Clauson,204 was open to him and not an appealable error. While Strickland J noted that ‘some doubt has been cast on the accuracy of what the Full Court said in Clauson in this regard’, the wife’s counsel had not argued for lump sum maintenance on any specific basis.205 The capitalisation approach adopted was understandable given that the wife’s counsel did not submit that the wife required specific amounts as in Vautin and that the evidence and submissions were in relation to the wife’s need for periodic maintenance and the husband’s inability to pay. Dawson & Dawson thus makes clear that  ‘it is necessary  to  present a claim  for lump sum maintenance for a specific reason. Is it capitalisation of a periodic amount? Or is it a lump sum necessary to pay for some need?’206

15.6.3 Maintenance as part of property settlement orders Because both property and spousal/de facto partner maintenance orders can be in the form of periodic payments, lump sums, or property transfers, or a combination of these, it can be difficult to distinguish in orders between the property component and the maintenance component. Yet distinguishing between the property and maintenance components of an order is important because only maintenance is taken into account when determining income for social security eligibility. As a result, orders requiring the payment of a lump sum or the transfer of property must specify any maintenance component (FLA

200 Cf Clauson [1995] FamCA 10; (1995) 18 Fam LR 693,705: the Full Court held that to determine any lump sum maintenance amount ‘it is necessary to determine the issue of periodic maintenance first because this type of lump sum maintenance is the capitalization of that conclusion. The Court must satisfy itself of the components necessary to justify a periodic maintenance order, namely, in effect, need and capacity, and determine the amount in question and in some cases the duration of that order. If the applicant fails to establish those components that will end any claim for not only periodic maintenance but lump sum maintenance as well’ (Barblett DCJ, Fogarty and Mushin JJ). 201 Vautin [1998] FamCA 135, [47] (Fogarty and Burton JJ). 202 The Court also considered conflicting views regarding whether lump sum maintenance is merely capitalisation of periodic maintenance, or operates as a separate order. For a more detailed examination of this issue, see Adiva Sifris, ‘Lump Sum Spousal Maintenance: Crossing the Rubicon’ (2000) 14 Australian Journal of Family Law 1, 11–15. See also Tyson v Tyson (1996) 70 ALJR 285. 203 Dawson & Dawson [2012] FamCAFC 22. 204 Clauson [1995] FamCA 10; (1995) 18 Fam LR 693 (Barblett DCJ, Fogarty and Mushin JJ). 205 Dawson & Dawson [2012] FamCAFC 22, [111] (Strickland J). 206 Vorah, above n 10, p 10.

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section 77A/90SH). If the maintenance component is not specified, the order will be taken not have made provision for maintenance.207 In practice in Australia, however, ‘[t]he blurring of the distinction between property and maintenance orders is a recurring problem’,208 which section 77A ‘has served to further blur’, due to problems of construction and interpretation.209 Empirically, it has been suggested that while technically spousal maintenance orders are being made under section 77A, in reality no extra provision is being made on top of property orders for spousal maintenance. Rather, ‘the section 77A classification is being used by the payer’s lawyers as an estoppel device’ to discourage a later application by the wife to the court for spousal maintenance.210 The distinction between lump sum maintenance orders and property orders may also be important in a given case because of the capacity for an application for lump sum maintenance to provide a way around the very limited avenues available under section 79A/90SN for setting aside property orders. For example, in Vautin, discussed earlier, the husband’s financial position had improved considerably after property orders were made by consent eight years previously, due to increased distributions to him under a discretionary trust. There was no suggestion that the wife would have been able to establish a section 79A ground for having the property orders set aside. However, she was successful in her claim for lump sum spousal maintenance. Arguably, this was in reality ‘an additional order for property settlement under the guise of maintenance’, especially given that an order for periodic spousal maintenance had already been made.211 For all these reasons, it has been accurately observed that ‘the precise characterisation of such orders is not without difficulty’.212

15.6.4 Maintenance where earning capacity is the key asset As Mitchell (15.5.1.2) illustrates, maintenance orders can play an important compensatory role in cases where the parties have accumulated little or modest property during their union relative to the earning capacity of one of the parties; this property may have been acquired 207 On the judicial interpretation of s 77A, see In the Marriage Of: Stuart Anderson Evans Applicant and Julie Gay Spicer (Formerly Evans ) Respondent Suit [1992] FamCA 36; Caska and Caska [1998] FamCA 118. 208 See, e.g., Carson & Carson [1999] FamCA 53(Carson). The trial judge had ordered, among other things, that the wife had sole occupation of the matrimonial home and that the husband pay the mortgage instalments on the home until the date of the final hearing. One of the husband’s arguments on appeal was that the trial judge had erred in making a spousal maintenance order in the guise of an interim property order. The Full Court set aside the order but in doing so the Court considered that that such an order for sole occupation could be made under FLA s 74 or s 114 (following the High Court decision of Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4) and perhaps under s 79(6). An order for payment of the mortgage instalments could be made either under s 74 or s  79(6) but in either case the court would need to be satisfied that there was a capacity for the payer to meet the order after the provision of reasonable self-support, statements, which, it has been argued, ‘smack of the s 72 criteria of capacity and need’: Sifris, above n 202, p 20. 209 Sifrsi, above n 202, p 19. 210 As suggested by the statistical survey conducted in 1988 by the Kay Committee of the Family Law Council: Family Law Council, Spousal Maintenance, above n 5, [8.7]. 211 Sifris, above n 202, pp 23–4. 212 Carson [1999] FamCA 53, [24].

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with the other’s support.213 However, as the empirical research indicates (15.2), cases in which maintenance is ordered on a compensatory basis are not the norm in Australia. Nevertheless, the compensatory role that can be played by maintenance orders where earning capacity is the real fruit of the marriage remains an important issue, especially given that in Australia whether professional qualifications can constitute ‘property’ remains an unanswered question,214 and has received less attention in the case law and academic discussion than in the US215 and Canada.216 While some positive signals from the Full Court that professional qualifications may constitute property were evident in Best (in which the Court raised the question and listed a range of cases and academic writings drawn from the US, Canada, and New Zealand), the Court went no further given that no argument was put forward by the wife.217 Although the Full Court’s decision in Mitchell suggested some progress regarding the recognition of career assets in the spousal maintenance context, Australian developments have not been as significant as those in England. In 2006, the House of Lords in Miller v Miller and McFarlane v McFarlane (Miller; McFarlane)218 held that an order for periodic payments (in Australia, maintenance) could be made to the wife not only to meet her needs, but as compensation for sacrificing her highly successful career to care for the family while the husband pursued his career and gained a very high income-earning capacity. Under the Canadian spousal support advisory guidelines (15.1), spousal support is based on income sharing, meaning that it is determined as a percentage of spousal incomes. The guidelines reflect principles enunciated by Supreme Court of Canada, beginning in 1992 when the Court rejected the rehabilitative, transitional view of spousal support that had prevailed following its 1987 Pelech trilogy,219 and preferred a compensatory model in Moge.220 The approach taken by the Court in Moge and subsequent cases, particularly Bracklow v Bracklow,221 was based on the notion that parties should share equitably in the economic consequences of the marriage and its breakdown. The absence in Australia of any policy interest in a compensatory approach to maintenance, or in development of guidelines similar to those operating in Canada, suggests the limits of the idea of marriage as a partnership, both in practical and ideological terms (5.8). 213 A good example is Mitchell (1995) 19 Fam LR 44. 214 For a more detailed consideration of the overseas and Australian positions see Antony Dickey, ‘Can Professional Qualifications Constitute “Property”?’ (1994) 68 Australian Law Journal 827. 215 See, e.g., Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children, Free Press, New York, 1985, chapter 5. 216 See, e.g., Claudia Wendrich, ‘Who Should Profit from an Academic Degree upon Marital Breakdown? Comparing Manitoba Common Law and the German Civil Code’ (1998) 25 Manitoba Law Journal 267; Elaine McKenna Kay, ‘Career Assets: Spousal Interest in Professional Degrees’ (1987) 6 Canadian Journal of Family Law 154. 217 Best [1993] FamCA 107, [42] (Fogarty, Lindenmayer and McGovern JJ). 218 Miller; McFarlane [2006] 2 AC 618. 219 Pelech v Pelech (1987) 38 DLR 641, Richardson v Richardson (1987) 38 DLR 699, and Caron v Caron (1987) 38 DLR 892. See further Martha Bailey, ‘Pelech, Caron, and Richardson: A Case Comment’ (1989–90) 3 Canadian Journal of Women and the Law 615; Rogerson and Thompson, Spousal Support Advisory Guidelines, above n 41, 6–7. 220 Moge v Moge (1993) DLR (4th) 456. 221 Bracklow v Bracklow (1999) 169 DLR (4th) 577.

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15.7  After orders are made 15.7.1 Variation and cessation Once made, orders can be varied under FLA section 83/90SI. Most notably, spousal and de facto partner maintenance orders (unlike child support assessments) are not re-assessed annually, and so the only alternative for an unhappy payee or a payer under an existing order is to apply to the court for a variation. Cessation of orders is covered by FLA section 82/90SJ, which provides that orders cease on the death of the payee, the death of the payer and remarriage of a payee (although the court has discretion to order maintenance in ‘special circumstances’—section 82(4)/90SJ(2)222). If a payee is cohabiting with another person, section 75(2)(m)/90SF(3)(m) would apply to allow the court to take into account ‘the financial circumstances relating to the cohabitation’, including financial arrangements that would be appropriate in those circumstances,223 to vary any existing maintenance orders.

15.7.2 Enforcement With the introduction of the CSS, the procedure for enforcement of spousal maintenance was also improved. Improving the likelihood of payment was consistent with an increasing policy emphasis on accessing private avenues of support. Since the introduction of the CSS, where orders are made for periodic payments of spousal (and now de facto partner) maintenance (or the parties have made a FLA binding financial agreement providing for this: 14.7), then the maintenance liability can be registered with the Child Support Registrar under the Child Support (Registration and Collection) Act 1989 (Cth). Once an order or financial agreement is registered, spousal or de facto partner maintenance payments can, like child support payments, be deducted automatically with income tax instalments from the wages of the payer, and paid to the recipient by Centrelink. Enforcement also becomes a matter for DHS-CS, rather than the recipient. (See further 11.6.) Chapter 20 of the Family Law Rules and Division 25B.2 of the Federal Circuit Court Rules 2001 provide for enforcement of financial orders, including maintenance orders, by several means, including sale of real and personal property. These rules are used in a number of circumstances, including the recovery of debts due to the Commonwealth under the Child Support (Registration and Collection) Act. Steps to punish a payer for failure to comply with spousal and de facto partner maintenance orders may also be taken under FLA Part XIIIA, which contains sanctions that apply more generally when there is serious failure to comply with court orders, or contempt of court. (See further 13.9.3.) Despite the existence of these mechanisms, enforcement may present significant challenges, including the cost of further legal proceedings.224

222 For a recent example in which an application was refused, see Waldrop & Chatelet [2012] FMCAfam 1048 (Hughes FM). 223 In the Marriage of F (1982) 8 Fam LR 29. 224 For a recent example, see Pilot & Pilot [2008] FamCAFC 206 (Finn, Thackray and Strickland JJ).

646 AUStralian FAMILY LAW: the contemporary context

15.8  Conclusion Our discussion has suggested that spousal and de facto maintenance play a very minor role in addressing women’s post-separation economic disadvantage. An accurate—and sobering—summary is as follows: Despite the sound words of the Full Court in Mitchell and Mitchell and Best and Best, there are very few cases in which long awards are made for periodic spousal maintenance. If an applicant for spousal maintenance has spent decades out of the work-force, has received most if not all of the capital of the parties, which may not be that much, she faces a precarious financial future in terms of being able to provide adequately for herself. It would be a brave practitioner who advises a 55-year-old housewife that despite her ex-husband’s high income, she will not ever want for income in the future. Ongoing spousal maintenance is where the s 81 clean-break principle seems to trump realistic chances of working and earning income again.225

Given the inconsistencies that exist between Australian community attitudes and practices on the one hand, and maintenance law and policy on the other, what changes are needed in this area? And what are the prospects of any change occurring, given the rarity of maintenance transfers, community preference for a clean break, and the fact that there is usually not enough money to go around? Although not the subject of recent law reform focus, it is perhaps surprising that despite the continuing low incidence of spousal maintenance in the community, reform of the FLA spousal maintenance provisions has been considered on several occasions since 1975.226 In particular, the law of spousal maintenance was considered in 1989 by the Family Law Council in a discussion paper.227 The Family Law Council suggested six options for reform: 1. Do nothing. That is, allow spousal maintenance to be awarded occasionally and randomly on the variety of principles already contained in the Family Law Act 1975. 2. Leave the legislative provisions unchanged but seek to raise the consciousness of the legal profession and judicial officers that, in certain specified fact situations, more generous and consistent awards of spousal maintenance ought to be made. 3. Abolish spousal maintenance altogether (either retrospectively or prospectively from some future date after a period of notice). 4. Amend the Family Law Act 1975 to provide that, other than in exceptional circumstances, spousal maintenance (based on need and ability to be pay) should only be awarded for a limited period (for example, three years). 5. Amend the Family Law Act 1975 to provide that, other than in exceptional circumstances, spousal maintenance should only be awarded for a limited period for the purpose of enabling the payee to undertake specific retraining. 6. Amend the Family Law Act 1975 to provide that, other than in exceptional circumstances, spousal maintenance should only be awarded (for limited or long 225 Vorah, above n 10, p 7. 226 Australian Law Reform Commission, Report on Matrimonial Property, Report No 39 (1987), [331]. 227 Family Law Council, Spousal Maintenance, above n 5, [16.2].

CHAPTER 15: Maintenance for Spouses and de Facto Partners 647

term periods of time) for the losses of the payee’s earning capacity ‘caused by’ or ‘arising out of ’ the marital relationship. Only option two provides a greater role for spousal maintenance. As Behrens and Smyth have argued, all of the other options require applicants to fit into limited and narrow categories that do not reflect their findings regarding the diversity that exists among the population of current payers and recipients of spousal maintenance, though they also emphasise that their findings do not paint a clear enough picture to enable drafting of legislative provisions.228 Responses to the Family Law Council’s 1989 discussion paper on spousal maintenance revealed ‘little general call for the reform of the spousal maintenance provisions of the Family Law Act’229 and a final report was not produced from this discussion paper. As discussed at 10.4, the Family Law Reform Bill (No. 2) 1995 (Cth) would have involved extensive amendment to the property provisions of FLA Part VIIII, but the spousal maintenance provisions were left almost untouched. The Attorney-General’s 1999 discussion paper Property and Family Law: Options for Change once again focused on reform on property division under the FLA, rather than spousal maintenance. In its submission on the discussion paper to the Attorney-General, the Family Law Council was critical of this, considering that the review should carefully consider the relationship between property law and spousal maintenance.230 In particular, the Family Law Council’s submission raised for consideration ‘the question whether there should be a closer integration of the principles underlying property transfers and spousal maintenance’.231 This submission incorporated and concluded the work of the Council’s ‘clean break’ sub-committee, established to carry out an inquiry into the interrelationship between spousal maintenance and the ‘clean break’ principle. Ultimately, the Attorney-General decided not to proceed with any of the options for reform outlined in the 1999 discussion paper, and there have been no firm developments since that time regarding spousal maintenance reform. At present, there is an ongoing lack of political and social will for reform. Interestingly, however, Behrens and Smyth suggested that it is the flexibility of the current provisions that is being taken advantage of—this points towards the desirability of leaving the legislative provisions as broad as possible.232 Perhaps the complex range of social and economic issues that create a continuing need for post-separation financial support, yet a very weak sense of social obligation to provide it, mean that working towards a more cohesive conceptual framework for spousal and de facto partner maintenance may be misguided, even in the context of other family law developments reflecting a move towards more rules and less discretion (particularly in relation to child support: Chapter 11). As the Family Law Council noted in its discussion paper back in 1989, ‘[i]n summary, spousal maintenance is conceptually awkward. It is awarded infrequently but in those [sic] small minority of cases it can serve and has served a variety of functions’.233 228 Behrens and Smyth, above n 3, 23. 229 Family Law Council, Annual Report 1989–90, Australian Government Publishing Service, Canberra, 1990, p 14. 230 Family Law Council, Submission on the Discussion Paper, above n 5, referring to Family Law Council, Spousal Maintenance, above n 5. 231 ibid., [12.49]. 232 Behrens and Smyth, above n 3, p 23. 233 Family Law Council, Spousal Maintenance, above n 5, [6.4].

648 AUStralian FAMILY LAW: the contemporary context

The ongoing financial disadvantage post-divorce of women and their dependent children means that we should be very cautious about any suggestion that spousal and de facto partner maintenance laws should be abolished or made more limited in scope. Despite the prevailing desire for a ‘clean break’ there are clearly still cases where maintenance is appropriate—most obviously, where there is a capacity to pay and the amount of property in the pool is insufficient to provide adequately for the more needy spouse. Due to the prevailing desire for a ‘clean break’, as well as the AIFS’s data about patterns of payment, any increase in the frequency and quantum of spousal and de facto partner maintenance would seem most likely to result from encouraging separating couples and their advisors to more seriously consider the possibility of maintenance via lump sum and property transfers at the time when property orders are made. However, given that there will often not be any or much capacity to pay, the strong preference of divorcing and separating couples for a ‘clean break’, and a low sense of social obligation, it seems only sensible to view spousal and de facto partner maintenance as a very limited option for the state to reduce its costs in a context where broader systemic changes are needed to address economic inequality between women and men.

CHAPTER

16

Conclusion In this chapter we offer some brief concluding thoughts on the contemporary state and future direction of Australian family law. The backdrop to this discussion is recognition of the limited amount of public funds available to expend in this area, the limited personal (including financial) resources available to most separated families, and the range of complex circumstances they are likely to face. Our analysis across many family law issues throughout the course of this book also suggests that personal orientations and capacities (especially willingness) to address the issues that arise on relationship breakdown, including parenting and financial arrangements, are the determinative influence on whether these issues are resolved fairly and expeditiously or remain mired in conflict and evasion. These factors all point towards some inherent limits in the job that law can do, especially as family law would seem to have a limited role in changing human behaviour. An overarching point to emerge from the discussion throughout the preceding chapters is that the families that engage with the family law system are commonly those affected by complex dynamics, including family violence, child safety concerns, substance misuse and mental ill-health. This is particularly evident in the parenting arena, but is also clearly relevant in the areas of child support and financial arrangements. Indeed, the controlling behaviours associated with a history of family violence explain to a significant extent the difficult dynamics that can emerge in child support cases and financial disputes. These are the types of families who seek assistance from services, lawyers and courts and to whom the principles in the legislative framework are most directly applied. In the parenting context, it is these families who are most likely to have the features that the legislative framework theoretically recognises as ‘exceptions’ to its principles regarding shared parental responsibility and time and to the imperatives to use family dispute resolution processes. The problem is that the theoretical exceptions do not consistently operate as such in practice, with the resulting risk that processes and outcomes not appropriate to the needs of children in these families will be applied. Similarly, those in dispute over child support and other financial issues are likely to be experiencing a range of disadvantages. The perennial issue in financial disputes is that when parents separate there is usually not enough money to meet the needs of both parents and their children. Understandings of financial sharing during relationships, especially where there are children, are not necessarily maintained after relationship breakdown when trust

649

650 AUStralian FAMILY LAW: the contemporary context

and goodwill have dissipated. The status of parenthood has different implications, on the whole, for men and women’s economic and labour market positions. Women’s greater economic disadvantage after relationship breakdown compared to men is also a result of wider societal factors. The likely result of this combination of factors is sustained financial detriment for women and the children living with them. It is not within the scope of any child support, property division or maintenance scheme to resolve these issues, but our analysis suggests that, to the limited extent that it addresses them, a discourse of formal gender equality currently impedes the extent to which longer term financial disadvantage for women informs policy and decision making. This has serious consequences for children given that most remain in living with their mothers for the majority of time when their parents separate. Access to affordable education, affordable childcare and affordable housing close to employment opportunities are factors likely to be of key significance for separated mothers seeking to build their economic independence, yet addressing those needs does not appear to be a significant policy priority despite the clear expectation that these women will be employed (as evidenced by the ‘welfare-to-work’ rules: Chapter 10). Indeed, following the Federal Government’s decision in the 2014 Budget to apply real interest rates to student debts for the first time,1 higher education is likely to be increasingly out of reach of those on low incomes and early economic analysis has indicated that the financial implications for women will be particularly harsh.2 Meanwhile, the high cost of child care puts it beyond the reach of most single parents,3 yet budget cuts to family payments also appear likely to impact disproportionately on them.4 The analysis throughout our book suggests a need for a sharper focus on what the law can achieve and should try to achieve in the context of separation. This is a challenging task given lack of social consensus on many issues in the area. However, a shared parenting template in legislation that is at odds with practices in the wider community and the dynamics relevant to the families to whom the legislation is most directly applied raises fundamental concerns about the utility of that framework. These concerns include the significant limitations in what legislation can achieve in the social context in which it operates and indeed the extent to which it may have unintended negative consequences. A related point is that the impact of the protection messages in the current framework will depend on the extent to which they can be and are supported in the system more widely through adequate resourcing to encourage effective screening, identification and responses to family violence and child safety cases. In this context, the complexity of the Part VII framework, the mixed messages it still conveys and the fact that it fails to articulate any 1 Australian Government, Budget 2014–15 Overview, Commonwealth of Australia, Canberra 2014, ‘A More Sustainable HELP System’, , p 19. 2 Peter Martin and Matthew Knott, ‘Women to Be Hardest Hit by Student Loan Debt’, The Age, 27 May 2014, . 3 Rachel Browne, ‘New Figures Show Income of Parents Goes Backwards when Children Are in Care’, The Sunday Age, 20  July 2014, . 4 Peter Martin, ‘Families on Benefits the Biggest Losers of Budget, Analysis of Budget Shows’, The Age, 19 May 2014, .

CHAPTER 16: Conclusion 651

expectations about what should happen in parenting cases where family violence and child safety concerns are established suggest the capacity of the 2012 amendments to achieve their aim could be compromised by a combination of factors, including limited resources and legislative incoherence. In relation to child support, our analysis has underlined continuing controversy and dissatisfaction with the operation of the Child Support Scheme (CSS), despite ongoing attempts (including one currently underway: Chapter 11) over many years to address concerns. Once again, however, increasingly complex law has its closest application in cases where parents are in dispute, and this is not the case for the majority of parents. Nevertheless, amendments since the establishment of the CSS and especially in 2006–08 have prioritised the concerns of payer fathers over those of payee mothers, and private arrangements have been increasingly encouraged. The extent to which CSS obligations are complied with, let alone ameliorate women’s financial disadvantage, is in the end a question of the ethical discretion of the payer, which is significantly influenced by (usually) his ongoing relationship with and level of commitment to his children (that is, his willingness as well as his capacity to financially support them). Property settlement does not necessarily lead to more generous outcomes for women and children, and the payment of spousal and partner maintenance is rare. Part of the problem is that it is unclear what the policy underlying property division and maintenance is, although in both instances the ‘clean break’ principle appears to be prioritised—in the former by law and in the latter by community attitudes. Once again, the extent to which women’s and children’s financial disadvantage is likely to be ameliorated is likely to depend on the economically more powerful parties’ willingness to share their wealth. Lawyers and courts are expensive options and family dispute resolution (FDR) in this context is less available, well-developed and resourced than for parenting disputes. In the end, there would seem to be much to gain from laws and processes that focus on family obligations and responsibilities more than on rights. Obligation in this context has dimensions that recognise parents’ responsibilities to support their children financially and to behave in a way that supports the healthy emotional, physical and psychological development of their children. This is undoubtedly challenging in a broader social context where self-interest and fulfilment are driving forces in public debates and in discourses emanating from popular culture. However, the outcomes of such a shift in vision would have immeasurable benefits for children and the community more widely.

INDEX abduction, international child abduction 369–80 Aboriginal peoples see Indigenous peoples abuse corroborative evidence  282 sexual abuse  284 see also child abuse; family violence; violence access 191–2 legislative coverage and jurisdiction 19 Access Economics  131–2 adjudication 479–80 admissibility 227–8 adoption  81, 112–13, 430 adoptive parents, ‘natural’ or ‘ordinary’ meaning 113–14 ‘kupai omasker’ customary adoption 83 step-parent adoption  19–20 adult partnerships de facto relationships  20–2, 89–98, 382–408 recognition of  87–112 formal recognition systems  88 agency dilemma  165–6 alimony 609–10 Alternative Dispute Resolution (ADR) 221–44 appeals Federal Circuit Court  30 FLA s 79 orders, appealing  544 High Court  28 implications of FLA decision making 35 parenting orders  302–4 apprehended violence orders (AVOs) 161 arbitration 480

652

artificial conception artificial reproductive ­technologies  19, 75 assisted conception  118–24 donors increased time with children claims 85 known sperm donors  348–9 parental rights  431 severing status  120–4 sperm donors–lesbian-led families tension 83–4 parental status, according  119–20 artificial reproductive technologies (ARTs)  19, 430, 433 gamete provider’s parental status 122 TFR birth rate statistics  75 assisted conception  75, 118–24 according parental status  119–20 differing legal and genetic parentage 115 donor status, severing  120–4 legal parenthood lynchpin  88 non-genetic parents  79 parentage in  118–24 Australian Bureau of Statistics (ABS)  139, 573–4 Australian family law alternative dispute resolution in 221–44 ancillary relief  14 ‘channelling’ purpose of  78 Commonwealth’s limited legislative power in  25–71 constitutional framework  9–24, 62 disputes, court selection criterion 33–4 family violence, relevance to  129–75

INDEX 653

FCCoA caseload/ applications 29–30 financial interdependence, ­maintenance and  89–90 foreign element, proceedings with 43–7 fragmentation  1–3, 9–71 future perspectives  649–51 legislative complexity  3–5 normative approaches versus ­functional family approaches  78 ongoing support  254–7 policy central focus of family violence  130 centrality of children’s needs  7 principal relief  14–15 reaching agreement without adjudication, pre-action steps/ procedures 487–8 referrals in relation to children  18–20 in relation to de facto partner ­relationship breakdown  20–2 role of law  77–8 social and policy context  382–408 state–federal power division, families, effect on  9–10 Australian Institute of Family Studies (AIFS) 392 AIFS Evaluation  29, 31, 33–4, 185–6, 401–2, 461, 530 shared time  314–15 disadvantaged children/child costs statistics 416 separated parents studies  139 Survey of Recently Separated Parents (SRSP)  144–9, 151–2, 183–4, 437–8 Australian Law Reform Commission (ALRC) 101 family violence exemptions  436–7 Family Violence Report  133–4 multiculturalism, consequences of 77

Australian National Audit Office (ANAO) 219–21 Australian Taxation Office (ATO) ­ 417–18, 559 baby boomers  573–4 balanced reciprocity  404 bankruptcy 558–62 FLA proceedings after bankruptcy occurs 558–60 transactions entered before ­bankruptcy occurs  560–2 Bankruptcy Act 1966 (Cth) (Bankruptcy Act)  558, 560–2 bargaining  210, 222, 402–3 best interests of the child  34–5, 37, 46, 191, 269, 296, 401, 413 additional considerations  193–5, 270–2, 289–92 overlapping nature, illustrative cases 289–90 two tiers, relationship between 270–3 under CRC  198 harm, protecting child from  191, 276–7 primary considerations  193–5, 270–2, 289–92 interpretation of  273–92 relevance of children’s views  289–90 relocation and  358 binding financial agreements  479, 486–7 maintenance claim preclusion  487 privacy and enforceability of  485 ‘breadwinners’ 567–73 ‘Building a Better CSA’ (BBCSA) program  458, 462 burden of proof  598–9 Centrelink  130, 423, 432 child abuse FLA, notifications of abuse under 64–8

654 INDEX

child abuse cont. Magellan system  69 unacceptable risk  283–8 child maintenance see child support child protection  47 Family Law Act and  63–4 Hague Child Protection Convention 368 harm and family violence, protection from  191, 276–7 jurisdictional overlap  60–71 case summary  60–2 constitutional framework  62 empirical research on  68–9 procedures/processes for dealing with 64–8 reform proposals  70–1 resulting legislation  63–4 Magellan system  69, 249–50 protocols 68 state child protection legislation  63 Child Protection Convention  47 Child Responsive Program (CRP) 247–8 child support  411–72 arrangements 418–24 ‘balanced reciprocity’  422–3 child support agreements  450–5 binding and limited child support agreements 451–3 key impact  452 child support formula  417, 421–2 application 429–38 application necessity  435–8 basic formula  439–45 formula assessment  429–38 child support percentage  440 Child Support Scheme see Child Support Scheme competing interests  412–13 compliance 464 difficulties associated with CSS flexibility 421

differing calculations of  423 disentitlement of child—poor relationship 469 enforcement 457–8 family as economic support source 86 father payers; mother payers  415–16, 420–2, 425, 428, 437 not necessarily a net gain to mothers 438–9 qualitative research  461 struggles experienced  423–4, 437 financial interdependence and 89–90 FLA child maintenance provisions 464–72 liability for parents CS(A)A  465 step-parents 466–7 gender-based arguments regarding 413 legislative coverage and jurisdiction 19 Maintenance Action Test  435–6 exemption from  436–8 minimum annual rate  446–7 Ministerial Taskforce  426–7, 442–4, 459 misattributed paternity and  434–5 ‘notional assessed’  452 obligations privatisation  432 parentage testing  116–18 parental complaints regarding  425 parental obligations  112, 391–2, 411 parent’s capacity to pay  450 payment flexibility  455–7 lump sum payments  456–7 non-agency payments  455–6 post-2006–08 amendments  458–64 impact 458–61 improved compliance?  462–4 private–public support balance  389 policy arguments favouring state support 414–15 reform 429

INDEX 655

self-administration  419, 421 treating parents equally  440–1 Child Support Collect  400, 438 Child Support Registrar (the Registrar)  418, 430, 433–4, 456–7 enforcement options  457 Child Support Scheme (CSS)  86, 179–80, 406–7, 417, 421–2, 651 application 429–38 necessity of ?  435–8 arrangements, working out  418–24 background to introduction  415–17 basic formula  439–45 change of assessment procedure 447–50 compliance/enforcement ­complaints  425, 427 court discretionary power replacement 415–16 establishment 20 flexibility within  421 formula application/ operation 445–7 formula assessment  429–38 infrastructure costs  444 unfair? 449–50 formula modification fathers on low income  446–7 second families  445–6 introduction 385 ongoing controversy, review and amendment 424–9 parental responsibility focus  413–14 preliminaries 429–38 regulatory framework  417–18 child welfare  19 child welfare authorities  66–7 children abduction of  46, 262–3, 369–80 Aboriginal and Torres Strait Islander children 331–9 assisted conception, parentage in 118–24

best interests of the child  34–5, 37, 46, 191, 269–92, 296, 401, 413 under CRC  198 birth rate statistics  75 care, welfare and development, parents and persons concerned with 126–7 child protection see child protection children–marriage connection removal 20 children’s matters, decision-­ making framework and principles 260–310 costs of  440, 442, 448–9 decision-making regarding see decision making dependent children  384–5 with disability, child support applications on child’s disability basis 469–70 disputes as to where a child lives 353–80 education, child support applications to enable completion of  470–2 ex-nuptial children  53 family violence and  151–4 filicide 143 FLA provision reforms  78–9 with gender identity disorder  38 Gillick-competence 39–40 influences on outcomes for children post-separation 187–90 interests in FDR  235–9 interests of  7 meaningful parental relationship benefits 266 ‘meaningful’  193, 274–6 meaningful parental relationship, benefits 274–6 nuptial children  53 overnight stays  185, 190 parent–child relationship family violence level outweighing 279–83

656 INDEX

children cont. parent against whom maintenance order is sought  468–9 parents, time spent with  297–301 parents relating to  189 parents–children links  112 post-separation lives  20 proceedings relating to  44–6 referral of powers relating to  18–20 resolving disputes, ­participation of children and young people 212–17 rights of  196–201 TFR birth rate statistics  75 views of post-separation financial arrangements 404–6 relevance of  289–90 welfare of  411–12 well-being of  71, 183, 187–91, 204, 383, 402, 416–17 Children’s Cases Program  245–50 Children’s Contact Services (CCSs) 255–7 Children’s Court  10 civil protection orders  160–9 criminal law and  167–9 practical/conceptual tensions  164–9 agency dilemma  165–6 mutualisation 166–7 Victorian system  169–74 civil unions  96–8 clean break principle  402, 540, 612, 614–16, 641 coercion  109–10, 137, 278–9 cohabitation  76, 92–5, 99, 117, 395–6, 635 heterosexual/de facto ­cohabitating couples, property adjustment regimes for  87–8 collaborative law  240–1 common residence  93–5

Commonwealth Commonwealth information orders 262 legislative powers centralisation of  18 family law powers, centrality of marriage 11 inconsistent state laws, overriding 12–13 limits of  17, 25–71 referral of state legislative ­powers  13, 18–22, 406 Commonwealth of Australia Constitution Act 1900 (Cth) see Constitution conciliation 224 conciliation conferences  488–9 confidentiality 227–8 conflation (avoidance)  505 conflict  142, 153, 189, 223, 315, 398, 411–12, 481 associated with litigation  314 consent 211 informed consent  37–8 to marriage  107–10 see also consent orders consent orders  195, 242–3, 302, 315–16 79/90SM orders  485–6 in a current case/not in a current case 484 disadvantageous? 484 enforceability 484 just and equitable consent orders  90, 485, 496, 501, 505, 509 orders of the court  483 property disputes  479–80, 483–6 setting aside  485–6 Constitution Chapter III FCCoA establishment  30 FCoA establishment  27–8 Chapter III FCoA establishment 27–8 constitutional change by referenda  17

INDEX 657

by referral of power  18–22 divorce power see divorce and ­matrimonial causes power express and implied incidental power 12 family law framework  10–13 framework 9–24 freedom of movement under  358 legislative powers  13–24, 495–6 delegation of power  29 ‘marriage,’ meaning of  23–4 marriage power see marriage power s 51 ‘divorce’ definition  14–15 family law interpretation  12–13 heads of legislative power  11–14, 18, 87 ‘matrimonial causes’ definition 15–16 validity of law  12 Consumer Price Index  457, 470 contact 279–82 contributions to family welfare  527–9 contributions to property  524–5 financial contributions, direct/ indirect 525–6 identifying and assessing assessment general points  519–24 global, asset-by-asset, or combined approach 520–1 no starting point of equal sharing 521–4 control  137, 278–9 costs orders  59 courts appellate courts  606–7 authority, scope of  25–71 court proceedings, publication of 27–8 courts of summary ­jurisdiction  35–43, 54 court’s s 75(2)/90SF(3) application approach 535–7

discretionary power—child ­maintenance orders  415–16 exercising jurisdiction under FLA 52–4 Family Court of Australia (FCoA) see Family Court of Australia Federal Circuit Court of Australia (FCCoA) see Federal Circuit Court of Australia mergers of courts—cooperation 55–7 ‘one-stop shop’ ideal for separating families 55 parenting matters processes  244–54 child-focused processes  245–8 parenting orders power to make  261 social patterns and  186–7 participation of children and young people in court processes 250–4 post-court orders stage  301–10 with property jurisdiction  494 discretion  494, 498–506 relocation disputes, decision making regarding 360–1 state supreme courts  35–6 Crimes (Family Violence) Act 1987 (Vic) 169 cross applications  166–7 cross-vesting scheme  47–8 custody 191–2 legislative coverage and jurisdiction 19 rights of custody  373–4 Dad and Partner Pay  388 de facto relationships ‘ascribed’ status  86 cohabitation extent of common residence and 93–5 illustrative cases  93–5

658 INDEX

de facto relationships cont. property adjustment regimes for 87–9 de facto partners maintenance 605–48 definition 91–2 centralised definition  88–9 inclusive of minors  91 no duration requirement in FLA definition 92 dispute resolution see property ­division on relationship breakdown establishment for FLA purposes  494 existence of relationship determination 91 registration of relationship  96–7 financial disputes  20–2, 382–408 financial resources distribution 21, 631 property disputes/resolution  21, 490–547 recognition of  89–98 referral of powers  21 registered relationships  96–8 sexual relationship, shared life and 95–6 terminology 87–8 decision making  190 ‘equal’ decision making  186 framework and principles  260–310 three-stage legislative pathway 269–301 regarding relocation  356, 365–8 general approach  357–60 declarations 542–3 decrees of nullity  15, 101, 106–10 divorce order versus decree of nullity 106 Defence Force Retirement and Death Benefit (DFRDB) pensions  580–1 cases 582

Department of Human Services—Child Support (DHS-CS)  130, 316, 412, 418–19, 432–3 administrative process—change of assessment procedure  447–50 reasons 448–50 child support payment collection 455 Family Violence Risk Identification and Referral procedures  438 investigatory powers, lack of  437 organisational challenges  462–3 Private Collect  420 separated parents studies  182 disability children with disability  469–70 people with disability  43 see also sterilisation disclosure of family violence  144 full and frank  262, 485, 488–9, 512–13 disempowerment 165–6 diversity cultural diversity marriage and  100–1 multiculturalism 77 diverse families  5–7, 74–7 divorce  110–12, 636 divorce orders  110–12 divorce order versus decree of nullity 106 economic fallout from  383 FLA proceedings, foreign divorces, annulments, and legal separations 44 legislative power see divorce and ­matrimonial causes power no-fault divorce  91, 110, 407, 615, 637 post-divorce living standards  385–6 statistics 75

INDEX 659

divorce and matrimonial causes power  14–16, 617 High Court interpretation  14–16 domestic relationships ‘living together’ on genuine domestic basis 93–5 registered relationships  96–8 sexual relationship, shared life and 95–6 domestic violence (DV)  167, 590 DOORS risk assessment framework  149–51, 158, 233 duress 108–10 economic downturn  414 equal shared parental responsibility presumption (ESPR)  359 application of  191–2, 292–301 appropriateness of  267 displacement 293–6 equal shared parenting time, ­application of  260, 264–5 mode of operation  293–7 non-parents and  296–7 parental responsibility, definition 292 equality 615 equality challenges (of marriage) 103–4 marriage equality  18, 22–4 relationship recognition claims  86 see also equal shared parental ­responsibility presumption equity 471 erosion principle  564–5 families 176 Australian statistics  74–5 changing attitudes towards  20 complex dynamics  649 contesting family  77–8 diversity of  5–7 change over time  74–7

correspondence with cultural/­ religious groups  75–6 values diversity  76 economic support source  86 ‘eternal biological family’  83–6 exclusion/disadvantage arising from 78 familial ideology  78–9 family dispute resolution  55 family farms  538 family relationships, legal recognition of 73–127 family violence see family violence family welfare contributions  527–9 family-friendly work policies  389 financial obligations community attributes  391–2 hierarchical, conditional and ­contingent nature  391–2 FLA notion of ‘family’  87 ‘functional family’ models  77–8 gender roles, configuration of  386 grandparents 343–6 death of a parent  344 ‘live with’ orders and  343–4 parent resisting claim by own parent 344–6 Indigenous families  76, 78–83 intact families financial arrangements in  393–7 gender roles and parenting  179–91 wealth sharing within  393–406 lesbian-led families  83–5 low-income families  460 non-nuclear families, legal recognition developments 79 notion basis—de jure ­marriages–de facto relationships distinction 76 ‘nuclear norms’/genetic relatedness influences on  78–9 post-separation family life, discourses 216

660 INDEX

families cont. post-separation parenting in Australian families  182–90 research 183–4 second families  445–6 prioritising ‘new’ children  446 separated families, gender roles and parenting 179–91 single parent families, economic impact models  460 family consultants  224 Family Court of Australia (FCoA)  10, 26–9, 244 child maintenance necessity, strict interpretation of  467–8 ‘childhood’ disability reference  469 claims regarding children  85 regarding relationship recognition 86 criticism, scrutiny and review  54–5 dispute resolution process, ‘resolution phase’ 488 establishment 27–8 family consultants  28 FCoA–FCCoA cooperation  55–7 final orders applications  477 Full Court change of assessment 3-step procedure 448 legislative framework interpretation 260 ‘helping court’ versus ‘mainstream model’  27–8, 55 jurisdiction 31–52 accrued jurisdiction  49–52 additional/supplementary jurisdiction 47–52 associated jurisdiction  48–9 cross-vesting scheme  47–8 FCoA–FCCoA overlap  31–52, 60–71 FLA cases, limited constitutional power 25–71

foreign element, proceedings with  welfare jurisdiction interpretation of  36–42 limitations 48–9 welfare jurisdiction  35–43 Less Adversarial Trials (LAT) ­introduction  28, 31 ongoing challenges self-represented litigants  58–60 violence  54, 57 property interests adjustment  488 property jurisdiction  494 reform proposals  55–7 registrars  418, 433–4, 456–7 judicial power  28–9 structure 28–9 divisions 28 as superior court  31 violence directed at  27 welfare jurisdiction  17 ‘working rule’ for marriage  521–2 Family Court of Western Australia (FCoWA) 244 family dispute resolution (FDR)  55, 207, 216, 223–7, 261 application 228–32 family violence guiding principle 231 CFDR pilot  233–5 children’s interests in  235–9 confidentiality, admissibility and ­practitioner obligations  227–8 family violence and child safety concerns 232–5 mandatory? 228–32 pre-filing FDR requirement  479 family law see Australian family law Family Law Act 1975 (Cth) (FLA) 2012 amendments  134, 156–60 allocating responsibility for financial losses and liabilities  549–63 amendments 177–8 2012 family violence ­amendments  136–7, 277–9

INDEX 661

in relation to bankruptcy  558–60 in relation to child maintenance orders 417 in relation to children  18–19 in relation to de facto financial disputes 88 in relation to financial dispute arbitration 480 welfare jurisdiction and  35–43 authority of courts deciding cases under 25–71 bankruptcy proceedings  558–60 ‘best interests’ checklist  404–5 binding financial agreements  486–7 child maintenance provisions 464–72 applications on child’s disability basis 469–70 applications to enable child’s ­education completion  470–2 children over 18—s 66L  467–72 ‘reasonable’ versus ‘absolute’ necessity 467–8 step-parent liability  466–7 child protection and  63–4 children, provisions for  78–9 conciliation conference requirement 488–9 consent orders not in current case 483–6 courts exercising jurisdiction under 52–4 de facto relationships definition  91–2, 495–6 duration 92–8 registration of  96–7 two-year (filing) period  92–3 discretionary decision making  35 dispute resolution processes  479–80 entitlements under FLA 481–2 divorce proceedings under divorce orders  110–12 recognition of marriage  44 donor status, severing  120–4

family violence approaches 154–60 definition 136–8 FCoA establishment  27 financial disputes  406–8 ‘financial resource’ definition 510–11 informal agreement  480–3 legislative reforms  11, 78–9 ‘matrimonial causes’ ­definition  15–16, 494–6 notifications of abuse under  64–8 orders in s 79/905M proceedings 540–3 ‘parent,’ meaning of  83 ‘parent’ definitions  19 parentage in assisted conception  118 parentage presumptions under 114–15 rebuttal 115 parental status, accordinwg  119–20 parenting orders  20, 36–42, 47, 53–4, 153–4 parenting plans  242–3 Part VII  212, 255 2006 changes  207 contemporary framework  192–6 CRC, effect to  250 current concerns  201–5 Div 12A—child-focused court processes 245–8 parenthood concepts  191–2 Part VIIIA—financial agreements 592–603 Part VIIIB—superannuation  576–7 valuation 578–81 Part XIIIA sanctions  546–7 ‘property’ definition  507–10 property division under Bevan case  502–6, 511–12, 515–17, 519, 539 exclusive jurisdiction  494 locating property provisions  493 preliminaries 492–507

662 INDEX

Family Law Act 1975 (Cth) (FLA) cont. proceedings may continue after death of a party  497–8 Stanford case  497–8, 501–7, 511–12, 515–17, 519, 521, 524 time limit for institution of property settlement proceedings  496–7 when can application be made? 495–8 property provisions, ‘clean break’ approach  402, 540, 612, 614–16, 641 religion checklist factors  325 s 65DAA—shared time arrangements 297–301 s 75(2)/90SF(3) factors  529–37, 629–37 adjustments 529 court’s application approach 535–7 not limited to parties’ future needs 533 overlapping categories  629–30 primary work  629 relevance of partnership approach to 533–5 s 79/90SM application  531–3 s 77—stop-gap function  638–9 s 78/90SL—declarations  542 s 79 orders, appealing  544 s 79/90SM, discretion exercise ­procedure under  498–506 Stanford impact  501–6 Stanford implications  506 s 79/90SM proceedings apportioning liabilities and losses 553–8 orders in  540–3 third party interests  549–53 s 79A/90SN(1)  544–6 s 90G/90UA—avoiding agreements 600–3 s 90G/90UJ—strict compliance, further legislation  595–600

s 114—injunctions  542–3 spousal/de facto maintenance 605–48 background to provisions  615–16 practical preliminaries  616–17 surrogacy and  124 third-party binding capacity of FLA orders  40–1, 51–2, 66 underpinning notion of ‘family’  87 Family Law Amendment (Family Violence and Other Matters) Act 2011 (Cth) 131 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), Part VII amendments, elements  260–310 Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) 575–6 Family Law Rules 2004, property disputes and  484–6, 488, 512–14 Family Relationship Centres (FRCs)  55, 217–21, 384 implementation challenges  220 interagency collaborations  220 property mediation, access to  478–9 Family Resource Centres (FRCs)  207 Family Tax Benefit (FTB)  414–15, 421 FTB A payments  435–6, 438, 452 Maintenance Action Test and 435–6 family violence  54–5, 57, 129–75, 197, 202, 316–17, 319–20, 398 2012 FLA amendments  277–9 child safety concerns and  232–5 children and  151–4 civil protection orders  160–74 corroborative evidence  282 cost estimates  131–2 definition 133–8 financial arrangements, impact on 399–401 FLA approaches  154–60 legislative amendment interpretation 277–9

INDEX 663

levels necessary to outweigh parent–child relationship continuation 279–83 Maintenance Action Test exemption 436–8 power and control, centrality of 135–6 power to legislate  131 property disputes, relevance to 585–92 protecting child from  276–7 recent Australian evidence and ­implications for practice  144–51 recent developments  131–3 relevance of  399–401 relief from  54 relocation disputes and  362–4 scope, extent, significance of context 138–44 severity of  144–51 typologies 147–8 unacceptable risk  283–8 Family Violence Protection Act 2008 (Vic) (FVPA) 169–72 key aspects  172–3 Family Violence Strategy  57 fatherhood  84–5, 181 genetic fatherhood  112 putative fathers  346–8 fear 137 Federal Circuit Court of Australia (FCCoA)  10, 29–31, 244, 605 appeals to  30 caseload/applications 29–30, 33–4, 263 conciliation conference ordering 488 criticism, scrutiny and review  54–5 docket system  248 early nomenclature  29 establishment 30 FCoA–FCCoA cooperation  55–7 jurisdiction 31–52 accrued jurisdiction  49–52

additional/supplementary ­jurisdiction  32, 47–52 associated jurisdiction  48–9 FCoA–FCCoA overlap  31–52, 60–71 FLA cases, limited constitutional power 25–71 foreign element, proceedings with 43–7 limitations 48–9 sharing 32–3 welfare jurisdiction  35–43 ongoing challenges self-represented litigants  58–60 violence 57 property jurisdiction  494 reform proposals  55–7 structure 30–1 federal family law courts Family Court of Australia (FCoA) see Family Court of Australia Federal Circuit Court of Australia (FCCoA) see Federal Circuit Court of Australia future perspectives  54–60 jurisdiction extent 43–7 state–federal court’s welfare ­jurisdictions relationship  42–3 filicide 143 financial agreements  479, 485–7 avoiding 600–3 ‘incidental or ancillary’ matters and ‘other matters’  592 not so binding?  592–603 requirements, criticisms of  592–3 strict compliance and further legislation 595–600 termination 593 undermining policy goals?  594–5 financial disclosure  485, 488–9 financial cases, disclosure requirements 512–13

664 INDEX

financial disputes  382–409 ‘fairness,’ views on  404–5 financial disadvantage financial disadvantage–relationship breakdown link  476 financial obligations to family members 391–2 financial support, limited capacity 390–1 post-separation financial ­disadvantage  383–92, 397 private support, limits  389–92 qualitative research—child support 461 relationship breakdown, financial impacts 384–6 of women, reasons for  386–9, 413 intact families, wealth sharing within 393–406 law and policy relating to  406–8 financial losses allocating responsibility for financial losses and liabilities  549–63 apportioning liabilities and losses 553–8 third party interests, s 79/90SM ­proceedings and  549–53 financial orders  546–7 financial resources  21, 512, 631–2 fragmentation mechanics—jurisdictional framework 25–71 structural fragmentation—­ constitutional framework  1–3, 9–24, 62 fraud 107–8 paternity fraud  117 gay and lesbian relationships see same-sex relationships gender identity disorder  38 Re: Jamie  38–40 gender pay gap  179–80, 386–7, 389

gender roles  179–82 configuration 179 Gillick-competence 39–40 Global Financial Crisis (GFC)  389, 414, 549 government Federal Government policy regarding women’s workforce participation 389 government benefits  384–5, 387–8, 416, 428 Centrelink  130, 423, 432 eligibility for independent from orders determination  389 family payments  435 poverty reduction, policy goals for reduction 416–17 Stimulus Package  428 structural complexity  1–3 guardianship  42–3, 191–2 legislative coverage and jurisdiction 19 see also parental responsibility habitual residence  374–5, 380 Hague Child Abduction Convention 369–80 application child’s objection  377 grave risk  375–6 habitual residence  374–5, 380 human rights  377–8 intolerable situation  376 key elements  372–80 return order, discharge of  379–80 settled in new environment  378 wrongful removal  373–4 outline 370–2 Hague Child Protection Convention 368 hardship  92–3, 496–7, 577, 602 High Court of Australia (HCoA) appeals to  28 special leave applications  302

INDEX 665

constitutional interpretation  14–16 disapproved starting point of equal sharing 522 validity of law, power basis  12 welfare jurisdiction, interpretation of 36–42 homicide 143–4 Household, Income and Labour Dynamics in Australia (HILDA) survey  384–5, 387 human rights  377–8 ‘Improving Compliance’ program 458, 462 income fathers on low income  446–7 financial interdependence  89–90 gender pay gap  386–7, 389 household income  385 income gap  384–5 income percentage  440 income ‘pooling’  89–90, 393, 395, 440 ‘partnership’ approach  398–9 income sharing  394–5 low-income families, child support and 460 men’s post-divorce income  385 National Minimum Wage  387–8 parental child support income 439–40 see also government benefits independent children’s lawyers (ICLs)  158–9, 243, 250–4 role 251 Indigenous Family Violence Taskforce 169 Indigenous peoples colonisation, damage from  141 communities 140–1 community diversity  332 cultural recognition, law and  334–5 cultural rights under CRC  199 Indigenous children  331–9

2006 amendments, case examples 336–9 Indigenous families collectivist view of family  76, 80–1 concepts of  80–2 extended families  79–83, 332 kinship systems  80–3, 333–4 needs of  331–2 ‘nuclear norms’/genetic relatedness influences on  78–9 marriages customary marriages  101 limited recognition under law 100–1 women, violence towards  140–1 informal agreements  241–2 informal property agreements  480–3 just and equitable property orders  90, 482–3, 496 potential problems  482 privacy and enforceability of  485 weight—Stanford decision  482–3 information disclosure  262 informed consent  37–8 injunctions 542–3 interim orders  265–9, 541–2 disruption to  640 legislative pathway selection  267 outcomes and final orders  269 jurisdiction accrued jurisdiction  49–52 additional/supplementary jurisdiction  32, 47–52 associated jurisdiction  48–9 concurrent jurisdiction  43 courts exercising under FLA courts of summary jurisdiction 53–4 Northern Territory and Western Australia 52–3 courts with property jurisdiction 494 discretionary jurisdiction  303–4

666 INDEX

jurisdiction cont. extent 43–7 ‘clearly inappropriate’ test for stay of proceedings 45 Family Court of Australia (FCoA) 31–52 welfare jurisdiction  35–43 Family Court welfare jurisdiction  17 Federal Circuit Court of Australia (FCCoA) 31–52 welfare jurisdiction  35–43 jurisdictional overlap in child protection  60–71 initiatives 64–8 Magellan system  69, 249–50 parens patriae jurisdiction  35–6, 42–3, 65 property proceedings  52–4 ‘reciprocating jurisdiction’ for CSS payees  430, 432 residual jurisdiction (states and territories) 99 welfare jurisdiction  35–43 lawyer negotiation  239–40 Less Adversarial Trials (LAT)  28, 31, 245 litigation 209 conflict associated with  314 litigation emphasis of FCoA  27 property disputes and  478–9 reaching agreement without adjudication  393, 487–9 self-represented litigants (challenge) 58–60 location orders  262–3 Longitudinal Studies  233, 332, 394, 397, 400, 402, 420–2, 428, 460–1, 477–8 family violence  140, 145–6, 148, 151–2 mental ill-health  350 parenting dispute resolution  209–12 property division  501

property loss  589–90 separated parents  182–4 superannuation 574 love 412–13 Magellan system  69, 249–50 maintenance 407–8 child maintenance see child maintenance compensation recoverable  609 court’s discretionary power—child maintenance orders  415–16 de facto partners’ and spousal maintenance 605–48 absence of a clear policy rationale 610 as compensation  608 eligibility 614–16 legal norms/social norms gap 610–11 empirical evidence  611–13 financial interdependence, ­maintenance and  89–90 foreign divorces, annulments, and legal separations  44 going to court  614–17 obtaining without  613–14 legal framework—twofold threshold test 617–37 applicant unable to support herself adequately 618–26 applicants’ attempts to be self-sufficient 622–3 applicant’s–household’s expenses 624–6 contextual inquiry  618–20 existing income or earning potential 627–8 need may subsist despite receiving bulk of property  620–1 needs connected to marital/de facto relationship 623–4 parties financial support by others 634–5

INDEX 667

parties’ post-separation circumstances 630–5 parties’ responsibilities regarding care/support 633–4 respondent’s income significantly exceeds both parties; needs 628–9 respondent’s liability to maintain to extent ‘reasonably’ able  626–9 s 75(2)/90SF(3) factors  629–37 s 75(2)(o)/90SF(3)(o) and past ­conduct consideration  63–7 Maintenance Action Test  435–6 maintenance claim preclusion  487 ‘Maintenance Income Test’  421 marital investment, as compensation 608–9 obtaining without going to court 613–14 orders 637–44 after orders are made  645 compensatory role of  644 enforcement 645 urgent and interim maintenance 638–41 variation and cessation  645 parent against whom maintenance order is sought  468–9 as part of property settlement orders 642–3 periodic maintenance  641–2 property orders–lump sum ­maintenance orders distinction 643 Stanford case  606 male total average weekly earnings (MTAWE)  439–40, 443, 464 marriage 100–10 ‘arranged’ marriages  100, 108–9 authorised celebrants  101–2 centrality to Commonwealth Parliament powers  11 children–marriage connection removal 20

common law definition  23 consent to marriage duress 108–10 fraud 107–8 constitutional power see marriage power cultural diversity and  100–1 de facto see de facto relationships de jure marriages–de facto relationships distinction 76 ending 110–12 entered or dissolved/nullified outside Australia 43–7 entering 101–6 valid marriage entry, ‘man’/’woman’ relevance 102–6 financial disputes  382–408 forced marriages  109–10 law, cultural specificity of  100 ‘man’ and ‘woman,’ legal relevance 102–6 marriage equality  18, 22–4 nullity 106–10 overseas marriages  105 parallel regimes  96–8 polygamy  23, 95, 100, 107 relationship breakdown, property division on see property division on relationship breakdown same-sex see same-sex relationships secularisation 100 solemnisation of  101–2 status conferred by  89 voiding see decrees of nullity Marriage Act 1961 (Cth)  100–2, 105–7 marriage power  16–17, 23 children, extension to  18–19 High Court interpretation  14–16 HCoA cases, principles  16 intrinsic limits  22–4 marriage-like relationships de facto see de facto relationships formal recognition systems  88 registered relationships  96–8

668 INDEX

marriage-like relationships cont. relationship breakdown, property division on see property division on relationship breakdown same-sex see same-sex relationships sexual relationship, shared life and 95–6 see also non-couple relationships matrimonial causes  617 constitutional definition  15–16 constitutional versus FLA definition 15–16 divorce and matrimonial causes power see divorce and matrimonial causes power FLA definition  15–16, 494–6 property settlement  17, 478 time limit for institution of property settlement proceedings 496–7 without judicial adjudication 476–9 required for de facto but not ­matrimonial property settlement orders 495–6 mediation 223–4 versus adjudication  479–80 FRC versus private mediation 479–80 property mediation  478–80 men with dependent children  385 domestic tasks responsibility  388 gender pay gap  386–7, 389 homocide 143–4 parentage testing  116–18 post-divorce income  385 post-divorce living standards  385–6 putative fathers  346–8 stereotypical influences and workforce participation 386 money  412–13, 508

multiculturalism 77 mutual orders  166–7 mutualisation 166–7 National Minimum Wage  387–8 National Plan to Reduce Violence against Women and Their Children (National Plan) 132–3 negotiation 239–40 ‘nexus’ approach  566–7 no-fault divorce  91, 110, 407, 615, 637 non-couple relationships  98–9 state and territory regimes  98–9 ‘notional’ property  506 nullity  15, 101, 106–10 parens patriae jurisdiction  35–6, 42–3, 65 parentage in assisted conception  118–24 Australian law determination  114 determining for child support purposes 433–5 differing legal and genetic parentage 115 legal parentage  113 parentage testing orders  116–18 ‘paramountcy principle’ application 117 paternity 117 deoxyribonucleic acid (DNA) testing 433 misattributed paternity  434–5 presumptions, findings and ­declarations of  114–16 in surrogacy  124–6, 431–2 Parental Leave Pay  387–8 parental responsibility  37–8, 46–7, 112–13 assisted conception  118–24 for child support  411, 424 CSS focus  413–14 definition 292

INDEX 669

equal shared parental responsibility presumption (ESPR), application of  191–2, 292–301, 359 FLA definition  292 FLA provisions  195–6 Gillick-competence 39–40 in Indigenous families  80, 83 parentage testing  116–18 social patterns and court orders 186–7 parenthood 191–2 parenting decision making  190 ‘equal’ decision making  186 framework and principles 260–310 dimension 181 equal shared parenting time  191–2, 260, 292–301 under FLA 177 gender roles and  179–82 Indigenous practice, misunderstanding of 80 parenting arrangements bargaining dynamics  402–3 financial issues role  476 most common  183–4 parenting–financial arrangements links 401–3 patterns of care  290–2 post-separation parenting in Australian families  182–90 methodological issues  183–4 shared time  313–25 shared time arrangements  297–301 ‘strategic bargaining’  210 parenting arrangements resolving disputes  206–58 confidentiality, admissibility and practitioner obligations  227–8 dynamics and issues  208–12 out of court mechanisms for reaching agreement 239–43

participation of children and young people 212–17 parenting disputes  10, 176–205 applications current approach  340–2 eligibility to apply  339–40 grandparents 343–6 known sperm donors  348–9 by people who are not parents 339–49 putative fathers  346–8 variable contexts  342–9 family consultants  28 federal system  20 FLA Part VII concepts 191–2 contemporary framework  192–6 current concerns  201–5 gender roles and parenting  179–91 Indigenous parenting practice, ­misunderstanding of  80 Less Adversarial Trials (LAT) ­introduction  28, 31 resolution, legislative framework 260–310 resolving 206–58 specific issues  312–81 Aboriginal and Torres Strait Islander children 331–9 disputes as to where a child lives 353–80 parental mental illness  349–53 people who are not parents, ­applications by  339–49 religion 325–31 shared time  313–25 UN Convention on the Rights of the Child 196–201 parenting orders  126–7 appeals 302–4 applications 261–3 applicants 261

670 INDEX

parenting orders cont. filing applications  263 location and recovery orders 262–3 ‘best practice’ approach  125–6 children–marriage connection removal 20 construction 263–9 decision-making framework  263–5 interim orders  265–9 contravention of definition 307–8 reasonable excuse for contravention 308–9 court orders construction  301–10 definition 261–2 enforcement 306–10 under FLA  36–42, 47, 53–4, 153–4 legislative pathway  260–310 analysis stages  264, 269–301 issues covered  261–2 parent availability  297 sanctions 309–10 variation 304–6 change in circumstances  304–5 Parenting Payment(s)  384, 388–9 parenting plans  242 parents capacity to pay (child support)  450 care (for children) level of care  440 past care patterns  290–2 patterns of care  290–2 ‘regular’ and ‘shared’ care  184–5, 443–5 children, time spent with  297–301 definition, ‘natural’ or ‘ordinary’ meaning 113–14 definitions 112–27 for child support purposes  430–2 FLA definitions  19, 430 expenses 449 functional/psychological ­parents, children’s care, welfare and development 126–7

liability for parents CS(A)A  465 meaningful relationship with both parents, benefit to child  266, 274–6 ‘meaningful’  193, 274–6 ‘multi-parent’ approach  86 non-genetic parents  79 non-parents and ESPR  296–7 ‘parent,’ meaning under FLA 83 parental conflict  398, 411–12 parental mental illness  349–53 parental status, according  119–20 parent–child relationship family violence level outweighing 279–83 parent against whom maintenance order is sought  468–9 parents–children links  112 relevance of  468–9 parenting orders see parenting orders power to give consent  37–8 privileging of ‘natural’ biological fatherhood 84–5 relating to each other and children 189 relationship status, CSS assessment irrelevance 430 religious beliefs  325–31 step-parent adoption  19–20 step-parents 466–7 treating parents equally  440–1 well-being of  183 Parliament legislative power extending 17–24 interpretation of  13–17 participation 212–17 partner maintenance disputes  20 paternity 117–18 deoxyribonucleic acid (DNA) testing 433 misattributed paternity  346, 434–5 personal protection orders  162–3 polygamy  23, 95, 107 limited recognition under law  100

INDEX 671

POPs 255 poverty  414, 428, 432, 446 government policy goals for reduction  416–17, 424–5 practitioner obligations  227–8 privacy financial disclosure  485, 488–9 financial privacy  481, 485 private agreements concerns about private settlement 243–4 mechanisms (without court proceedings) 241–3 binding financial agreements  479, 486–7 consent orders application  479–80, 483–6 informal agreement  480–3 taxation and stamp duty implications  480, 482–3 Private Collect  420, 425, 464 property disputes additional matters, consideration 529–38 breadwinner contributions in high asset cases  567–73 retreat? 570–3 ‘special skills’ doctrine  567–72 cohabitating couples, property ­adjustment regimes for for  87–8 contributions, identifying and assessing 517–29 assessment general points  519–24 global, asset-by-asset, or combined approach 520–1 no starting point of equal sharing 521–4 de facto couples  89 hardship exceptions to filing time 92–3 existing legal/equitable interests of parties in property, identification 507–15 family violence, relevance to  585–92

initial contributions  564–5 just and equitable to make an order? 515–17 legal framework for resolution 490–547 post-separation contributions  565–7 processes for resolving, without ­judicial adjudication  475–89 professional assistance, accessing 478–9 property distribution, de facto relationships 21 property division  475–89 under FLA 492–507 marital fault notions, role of 398–9 property settlement see property settlement specific property issues  548–603 allocating responsibility for financial losses and liabilities 549–63 state system  20 superannuation 573–85 property division on relationship breakdown 475–89 additional matters, consideration 529–38 binding financial agreements  479, 486–7 conciliation conferences  488–9 consent orders  479–80, 483–6 contributions, identifying and assessing 517–29 dispute resolution processes arbitration 480 property mediation  479–80 empirical research/ statistics 476–8, 481 existing legal/equitable ­interests of parties in property, identification 507–15 extent of legal/equitable interests identification 511–12

672 INDEX

property division on relationship breakdown cont. financial resources ­identification?  512, 631 interests needing identifying 507–12 informal property agreements 480–3 marital fault notions, role of  398–9 property disputes resolution 490–547 property division under FLA, preliminaries 492–507 property orders after orders are made  543–7 determination independent from benefits eligibility  389 just and equitable?  515–17, 539–40 orders in FLA s 79/905M proceedings 540–3 property orders–lump sum ­maintenance orders distinction 643 in respect of ‘property’ of parties 507–8 property settlement formal versus informal pathways  17, 478 influences on  397–8 maintenance as part of  642–3 time limit for institution of property settlement proceedings 496–7 without judicial adjudication  476–9, 613–14 recovery orders  262–3 relational ethics  222–3 relationship breakdown allocating ­responsibility for ­financial losses and liabilities  549–63

apportioning liabilities and losses 553–8 family violence and  141–2 financial arrangements children’s view  404–6 family violence, relevance of 399–401 influencing factors  397–9 links with parenting  401–3 parenting–financial arrangements links 401–3 trade-offs 403–4 financial consequences  383–6 costs to community  383–4 Household, Income and Labour Dynamics in Australia (HILDA) survey  384–5, 387 financial disadvantage–relationship breakdown link  476 financial disputes, law and policy relating to  406–8 financial impacts of  384–6 post-separation relationships  481 property division see property division on relationship breakdown required for de facto but not ­matrimonial property settlement orders 495–6 separation see separation wealth sharing on  393–406 religion 325–31 relocation disputes  353–69 cases family violence  362–4 interim relocation cases, general approach 360–1 issues 361–5 primary carer’s proposals, framing 362 proposed move, distance of  364–5 context 354–7 country of origin, returning to 356–7

INDEX 673

decision making regarding  355, 360–1, 365–8 general approach  357–60 early case law  354–5 international developments  365–8 international relocations  365 principles 367 relocation, reluctance to allow  355 re-partnering 532–3 rights of children  196–201 culture right to enjoy, interpretation 335–6 UN cultural rights recognition  334 human rights  377–8 religious freedom  325–6 rights discourse  216 rights of custody  373–4 same-sex relationships  22–4 extension of de facto relationship status to  86 marriage and  103–4 overseas marriages  105 US ‘backlash’ measures  104–5 marriage equality  9 ‘nuclear norms’/genetic relatedness influences on  78–9 recognition of, formal recognition systems 88 relationship breakdown, property division on see property division on relationship breakdown sanctions  309–10, 546–7 ‘second shift’  180 self-represented litigants  58–60 Semple Review  56 separation AIFS Survey of Recently Separated Parents (SRSP)  139, 183–4, 437–8 courts as ‘one-stop shop’ ideal  55

financial issues, child support see child support ‘high conflict’ separation  189 initial and post-separation contributions 563–7 post-separation financial arrangements, children’s views 404–6 post-separation financial disadvantage  383–92, 397 women’s income gap and employment 384–5 post-separation parenting in Australian families  182–90 post-separation relationships  423, 481 pre-separation caregiving patterns 291–2 property disputes resolution 475–547 separated families  184–5 gender roles and parenting  179–91 influences on outcomes for children post-separation 187–90 test of separation  93 usually modest financial circumstances of couples  390–1 see also divorce sexual relationships, long-standing relationships and ‘shared life’ threshold 95–6 shared time/parenting AIFS Evaluation findings in litigated cases 314–15 court decisions  313–25 current outcomes data  315–17 equal and substantial and significant time, difference between  323 recent cases  317–25 Skehill Review  56–7 Social Security Appeals Tribunal (SSAT) 418

674 INDEX

solemnisation 101–2 ‘special skills’ doctrine  567–72 spousal maintenance  407–8, 605–12 capacity to pay  626 career assets recognition  644 foreign divorces, annulments, and legal separations  44 ‘punitive’ policy rationale for  620 relevance of  623 state child protection legislation  63 state parliaments Commonwealth Parliament overriding inconsistent state laws 12–13 referral of legislative powers to  13, 18–22 state supreme courts, parens patriae jurisdiction  35–6, 42–3 step-parents  19–20, 466–7 stereotypes  308–9, 386 sterilisation Family Court welfare jurisdiction authorisation 17 Marion’s Case  36–9 summary jurisdiction, courts of geographical accessibility  54 jurisdiction under FLA 53–4 welfare jurisdiction  35–43 superannuation 2002 reforms  574–8 compulsory superannuation  574 increasing significance as relationship asset 573–4 non-vested 21 offsetting approach  575 splitting 20–1 valuation 578–81 to what extent is superannuation being ‘treated as property’?  581–5 supervised contact  279–80 surrogacy  19, 113–15, 120–1 parentage in  124–6, 431–2

surrogacy arrangements  125–6 safeguards 126 surrogacy provisions–parentage laws relationship 121–2 third parties binding orders and ­injunctions  40–1, 51–2, 66 child support payments to  455–6 financial resources and  631–2 financial support  634–5 time arrangements  297–301, 424 cessation/denial of contact  279–82 misunderstanding regarding  263–4 reasonably practicable  299–301 ‘substantial and significant’ time, meaning 298–9 time allocation in court  185–6 Torres Strait Islander peoples community diversity  332 cultural recognition, law and  334–5 Indigenous extended families  79–83 ‘kupai omasker’ customary ­adoption  83, 333 Torres Strait Islander children 331–9 2006 amendments, case examples 336–9 trade-offs 403–4 UN Convention on the Rights of the Child (CRC)  196–201 articles 197–9 comments/concerns 199–200 cultural rights recognition  334 unacceptable risk test  283–8 unemployment rate  472 valuation  513–15, 578–81 Victorian Law Reform Commission (VLRC) 169 Victorian Systemic Review of Family Violence Deaths (VSRFD)  143

INDEX 675

violence  54–5, 57 directed at FCoA and judges  27 domestic violence  167, 590 family violence see family violence interactive levels  134–5 National Plan to Reduce Violence against Women and Their Children 132–3 wealth 510–11 intact families, wealth sharing within 393–406 relationship breakdown, wealth sharing on  393–406 welfare family welfare  527–9 welfare discourse  216 welfare principles, paramountcy of 191–2 welfare jurisdiction of FCoA, FCCoA and courts of ­summary jurisdiction  35–43 interpretation of  36–42 scope 38 state–federal court’s welfare ­jurisdictions relationship  42–3 women child support claimants  413 child support experiences  422 with dependent children  384–5 employment/employment rates  388

children’s age links  388 ‘double shifts,’ increase in  388–9, 441 financial impact of relationship breakdown financial disadvantage, reasons for  386–9, 413 Income and Labour Dynamics in Australia (HILDA) survey  384–5, 387 gender pay gap  386–7, 389 homocide 143–4 National Plan to Reduce Violence against Women and Their Children 132–3 parentage testing  116–18 post-divorce living standards  385–6 s 75(2)/90SM(3) matters in favour of 530 workforce participation  180 Federal Government policy regarding 389 increasing 388–9 social encouragement  386 stereotypical influences and  386 work family-friendly work policies  389 gendered paid/unpaid work  90 patterns 387–8

A unique, contextual and thematic approach to family law Australian Family Law encourages critical thinking and a wide understanding of contemporary Australian family law. Description and analysis of the law is set in a broad context that includes policy debates surrounding the law and the family as well as discussion of relevant empirical research. Recent years have seen a burgeoning of such research, enabling the authors to convey a rich sense of the law in action. The use of interdisciplinary materials means that the substantive law is presented in a highly contextualised way, which will appeal to a wide range of readers and enhance understanding.

The overarching theme of the book is the challenge of complexity in Australian family law, namely: • • • •

Structural complexity and fragmentation Complexity in law and process Complexity in family forms and needs Complex interests.

New to this edition • Comprehensively up-dated to reflect the latest family law changes and research findings • For both parenting and financial disputes, separate chapters providing: • broader historical and empirical context • process for resolution • legal framework • specific issues

Belinda Fehlberg is a Professor in the Faculty of Law at The University of Melbourne. Rae Kaspiew is a leading Australian socio-legal researcher in the areas of family law and family violence. Jenni Millbank is a Professor in the Faculty of Law at the University of Technology, Sydney. Fiona Kelly is a Senior Lecturer in the School of Law at La Trobe University. Juliet Behrens is a Senior Associate at Dobinson Davey Clifford Simpson Lawyers.

TEACHING MATERIALS

This text can be drawn on as a standalone text, or used as a teaching text in conjunction with Australian Family Law Teaching Materials 2nd Edition, which gives readers access to an expanded selection of primary and secondary materials.

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