Family law [7th edition.] 9780409344936, 0409344931

Citation preview

FOCUS Family Law 7th edition

Eithne Mills dedicates this book to both her Irish and Australian families, in particular to her sons: Scott Mills and her grandson Líam; Sheamus Mills and her grandson Lucas. Also, to her partner Lynton. Additionally, her adored cats who kept her company while she wrote should have a mention. Marlene Ebejer dedicates this book to all those providing quality services and outcomes to the men, women and children embroiled in the family law arena, and to her staff Kim Littorin, Samantha Hunter and Teresa Fusca who demonstrate dedication and commitment and should be recognised for their efforts in supporting families.

FOCUS Family Law 7th edition

Eithne Mills LLB DipFamLaw (Mon), LLM (Melb) Honorary Fellow School of Law, Faculty of Business and Law, Deakin University Admitted to Practice Supreme Court of Victoria and High Court of Australia: Australian Lawyer

Marlene Ebejer LLB (Mon), BA Multicultural Studies (RMIT) Post Graduate Vocation Education and Training (Melb) MAppLaw (Family Law) (College of Law) Accredited Specialist Family Lawyer Accredited Family Dispute Resolution Practitioner Principal Lawyer, Ebejer & Associates Lawyers Pty Ltd Barrister and Solicitor, Supreme Court of Victoria and High Court of Australia

LexisNexis Butterworths Australia 2017

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

LexisNexis LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au LexisNexis Argentina, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA LexisNexis Latin America, SAO PAULO LexisNexis Canada, Markham, ONTARIO LexisNexis Chile, SANTIAGO LexisNexis China, BEIJING, SHANGHAI Nakladatelství Orac sro, PRAGUE LexisNexis SA, PARIS LexisNexis Germany, FRANKFURT LexisNexis Hong Kong, HONG KONG HVG-Orac, BUDAPEST LexisNexis, NEW DELHI Dott A Giuffrè Editore SpA, MILAN LexisNexis Japan KK, TOKYO LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR LexisNexis, WELLINGTON Wydawnictwo Prawnicze LexisNexis, WARSAW LexisNexis, SINGAPORE LexisNexis Butterworths, DURBAN Staempfli Verlag AG, BERNE LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

National Library of Australia Cataloguing-in-Publication entry Creator: Title: Edition: ISBN:

Mills, Eithne, author. Family law/Eithne Mills, Marlene Ebejer. 7th edition. 9780409344929 (pbk). 9780409344936 (ebk). Series: Focus. Notes: Includes index. Subjects: Family law — Australia. Domestic relations — Australia. Families — Australia. Other Creators/Contributors: Ebejer, Marlene Rita, author.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. Formerly Butterworths Tutorial Series: Family Law, First edition 2001; Second edition 2005 (Reprinted 2004 and 2005); Third edition 2008; Fourth edition 2010; Fifth edition 2012; Sixth edition 2015. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Slimbach and Helvetica Neue.

Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface Welcome to this seventh edition of Focus Family Law. It is intended primarily as a guide for legal practitioners and students studying for a degree in law, but is also suitable for students in many related disciplines, particularly those studying the social sciences for whom a knowledge of the legal aspects of family breakdown may be helpful. Family is the most fundamental building block of society. The inter-connectedness and sense of belonging derived from the family unit is, for many people, their main source of power, inspiration and purpose. There are often no bounds to the deprivation and sacrifices that people voluntarily and, often, happily endure in order to advance the interests of their family members. Life can be complete without familial bonds but is almost certainly richer with them. It may be argued that of all areas of law, it is family law that most accurately reflects the changes in society. There is now general acceptance that many marriages will end in divorce and de facto partnerships in separation. Yet, for those families using the family law system, little has changed in terms of human feelings. Sadness, disruption, feelings of failure, and often great bitterness are common in the breakdown of a relationship. Family law therefore as discussed within this book is not mainly about facilitating familial relationships or regulating conduct during the course of such relationships. Rather it is

about regulating the conduct of people following the termination of a family relationship — traditionally that of husband and wife, but equally that of de facto partners whether same sex or heterosexual. Since the inception of the Family Law Act 1975 (Cth), a great deal has been written about family law, and many reforms have been made. Recent reforms have meant that all couples, whether married, de facto, heterosexual or same sex, are regulated by the Family Law Act. Other reforms have brought family violence into focus and the system is grappling with little success as to how it ought to deal with the effects of violence and the particular impact that has on children in their ongoing relationships with their families. Much violence and neglect of children can be related to the use of alcohol and drugs by one or both parents. Readers will note when studying Chapter 5 that at times the courts have great difficulty in determining with whom a child of two appalling parents will be in least danger of neglect and abuse. One of the heartening aspects, however, of more recent matters relating to children is the increasing judicial propensity for forbidding parents from physically punishing children. The importance of international human rights instruments should not be overlooked in a discussion of family law. These international human rights laws will be discussed in various topics throughout the book. Given the centrality of family to the lives of most people, it is not surprising that the severing of such bonds can have a devastating impact on the wellbeing of those involved. There is a need for legal regulation at this point. A person who feels that they have lost all that is meaningful in life can often behave without thought to the consequences. Intense love

can readily turn into intense disappointment, if not anger. Many of the cases in this book are a reflection of anger and lost expectations. This is particularly evident in matters relating to children. This book sets out the principles and rules which govern family relationships and breakdown as regulated by the Family Law Act and related rules. Throughout the book, we discuss the rationale for the essential principles and express our views and hopes regarding the likely future development of controversial aspects of family law. We would like to thank the wonderful team at LexisNexis, particularly Jocelyn Holmes and Mary-Jane Oliver, for encouraging us to achieve our seventh edition. Eithne Mills and Marlene Ebejer Melbourne June 2017

Table of Cases All references are to paragraphs

A A, In the Marriage of (1984) FLC ¶91-590 …. 7.29 — (1998) 22 Fam LR 756; FLC ¶92-800 …. 5.39 Aaron and Robinson [2013] FMCAfam 41 …. 5.8 Abbey and Walburn [2014] FCCA 1440 …. 5.47 Abdoo and Essey [2011] FMCAfam 772 …. 5.61 Abdullah, In the Marriage of (1981) 6 Fam LR 654; FLC ¶91003 …. 8.128 Abduramanaoski and Abduramanaoska (2005) FLC ¶93-215 …. 8.135 Acquaah-Akuffo v Abioye [2016] FamCA 507 …. 5.71 — v — [2016] FamCAFC 194 …. 5.71 Adams and Randall [2011] FamCAFC 204 …. 9.25 Aiken and Aiken [2011] FMCAfam 910 …. 5.45 Aird and Hamilton-Reid [2007] FamCA 4 …. 4.25 Aitken and Deakin [2010] FMCAfam 35 …. 9.5, 9.16 AK and NC [2003] FamCA 1006 …. 4.18 Akston and Boyle [2010] FamCAFC 56 …. 5.56 Alan and Eastman [2013] FCCA 174 …. 5.7 Albany and Albany (1980) FLC ¶90-905 …. 8.92 Aldridge and Keaton (2009) 42 Fam LR 369; FLC ¶93-421;

[2009] FamCAFC 229 …. 5.19 Aleksovski, In the Marriage of (1996) 20 Fam LR 894; FLC ¶92-705 …. 8.37, 8.55 Alex, Re (Hormonal Treatment for Gender Identity Dysphoria) (2004) 31 Fam LR 503; [2004] FamCA 297 …. 5.68 Allan and Allan (No 2) [2010] FamCA 998 …. 8.135 Allenby and Kimble [2012] FamCA 614 …. 9.10 Althaus and Althaus (1982) FLC ¶91-233 …. 9.26 AM (Adult Child Maintenance), Re (2006) FLC ¶93-262 …. 6.23 Amador and Amador [2009] FamCAFC 196 …. 5.6 Amarnath and Kandar [2015] FamCA 1138 …. 4.11 AMS and AIF (1999) 199 CLR 160; 163 ALR 501; 24 Fam LR 756; [1999] HCA 26; …. 5.30, 5.51 Anast and Anastopoulos, In the Marriage of (1981) 7 Fam LR 728; FLC ¶91-201 …. 7.39, 7.51, 7.74 Andrew, Re (1996) 20 Fam LR 538; FLC ¶92-692 …. 5.39, 5.73 Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC ¶90-063 …. 8.141 AP v ENP (P and P) (2003) FLC ¶93-161 …. 10.85 Archer and Archer [2013] FCCA 226 …. 6.19 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000 …. 8.102, 8.142, 8.146 Ashton, In the Marriage of (1982) FLC ¶91-285 …. 7.67 Asprey and Delamarre [2013] FamCA 214 …. 9.14 Astbury, In the Marriage of (1978) 4 Fam LR 395; FLC ¶90494 …. 7.21

Atkinson and Atkinson [2017] FamCA 274 …. 10.1 Attorney-General v Otahuhu Family court (1995) 12 FRNZ 634; [1995] NZFLR 57 …. 3.15 Attorney-General (Cth) and ‘Kevin and Jennifer’ [2003] FamCA 94 …. 3.14, 3.17 Attorney-General (NSW) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 …. 2.25 Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; 36 ALJR 104 …. 2.25, 2.51 Atwill, In the Marriage of (1981) 7 Fam LR 573; FLC ¶91-107 …. 7.21 Australia and New Zealand Banking Group Ltd v Karam [2005] NSWCA 344 …. 8.6 Australian Securities and Investments Commission v Rich (2003) 31 Fam LR 667; FLC ¶93-171 …. 8.6 Axtell, In the Marriage of (1982) 7 Fam LR 931; FLC ¶90-208 …. 7.36 Azmi and Shinde [2014] FamCA 824 …. 4.11

B B v J (1996) 21 Fam LR 186; FLC ¶92-716 …. 6.3, 6.22 B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181 …. 5.4, 5.68 B and B; Holmes, In the Marriage of (1988) 12 Fam LR 331; FLC ¶91-944 …. 5.51 B and B (No 2), Re (2000) 26 Fam LR 437; FLC ¶93-031 …. 7.43

B and B, Re; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755 …. 5.4, 5.24, 5.32, 5.39, 5.47, 5.48, 5.51, 5.55, 5.73 B and R and the Separate Representative (1995) 19 Fam LR 594; FLC ¶92-636 …. 5.61, 5.73 Baars v Brendstrup (1986) DFC ¶95-029 …. 9.42 Baber, In the Marriage of (1980) 6 Fam LR 796; FLC ¶90-901 …. 7.29, 7.36 Babich and Sokur [2007] FamCA 236 …. 4.27 Bachiega and Hamilton [2013] FamCA 58 …. 5.3 Bagala and Bagala [2009] FMCAfam 953 …. 6.8, 6.11 Baglio and Baglio [2013] FamCA 105 …. 5.8 Bailee and McKayla [2016] FamCA 1125 …. 5.3 Bailey, In the Marriage of (1978) 4 Fam LR 86; FLC ¶91-424 …. 7.29, 7.38, 8.89 Balmaves, In the Marriage of (1988) 12 Fam LR 488; FLC ¶91952 …. 8.23 Balzia and Balzia [2009] FamCA 679 …. 8.94 Banks and Banks [2015] FamCAFC 36 …. 5.8 Baranski and Baranski [2012] FamCAFC 18 …. 10.45 Barkley, In the Marriage of (1976) 1 Fam LR 11,554; (1977) FLC ¶90-216 …. 7.29 Barnett, In the Marriage of (1973) 2 ALR 19 …. 4.59 Barry and Dalrymple [2010] FamCA 1271 …. 9.10 Barton v Armstrong (1973) 2 NSWLR 598; [1976] AC 104 …. 9.33 Barzetti and Barzetti [2014] FamCA 233 …. 5.20 Basra and Ahmed [2016] FamCA 838 …. 4.62

Bassingthwaite v Leane (1993) 16 Fam LR 918; FLC ¶92-410 …. 6.17 Bassola (No 2), In the Marriage of (1985) 10 Fam LR 413; FLC ¶91-623 …. 8.125 Bates, In the Marriage of (1976) 2 Fam LR 11,407; FLC ¶90123 …. 7.58 Bates and Sawyer (No 2), In the Marriage of (1977) 3 Fam LN N10; FLC ¶90-249 …. 4.52 Baxter and Baxter [2010] FamCAFC 183 …. 8.37 Bauer and Becker [2009] FMCAfam 480 …. 6.11 Baumgartner v Baumgartner (1987) 164 CLR 137; 11 Fam LR 915; (1988) DFC ¶95-058 …. 9.54, 9.55, 9.56 Beard and Fisher [2013] FCCA 755 …. 6.19 Beck, In the Marriage of (1982) 8 Fam LR 340; FLC ¶91-235 …. 7.58 Beck (No 2), In the Marriage of (1983) 8 Fam LR 1017; FLC ¶91-318 …. 7.45, 7.74 Beck and Beck (2004) 31 Fam LR 467; FLC ¶93-181 …. 8.118 Becker and Becker [2014] FCCA 1154 …. 5.39 Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 …. 8.31, 8.37, 8.51 Belmore and Belmore [2017] FamCA 276 …. 10.1 Beneke, In the Marriage of (1996) 20 Fam LR 841; FLC ¶92698 …. 8.30, 8.78, 9.19 Bennett, In the Marriage of (1990) 14 Fam LR 397; (1991) FLC ¶92-191 …. 5.53, 5.54 Benson and Browne [2013] FamCA 710 …. 5.3 Berda and Kalil [2012] FamCA 712 …. 4.14 Bertei and Feher (1999) DFC ¶95-214 …. 9.37

Best, In the Marriage of (1993) 16 Fam LR 937; FLC ¶92-418 …. 7.64, 7.74, 8.17, 8.92 Bevan, In the Marriage of (1993) 19 Fam LR 35; (1995) FLC ¶92-600 …. 7.13, 7.16, 7.19, 7.24, 7.39, 7.62, 7.74, 8.146 Bevan and Bevan (2013) FLC ¶93-545; [2013] FamCAFC 116 …. 8.9, 8.28, 8.84, 9.20 — [2014] FamCAFC 19 …. 8.28 Biddulph, In the Marriage of (1977) FLC ¶90-243 …. 7.10 Biltoft, In the Marriage of (1995) 19 Fam LR 82; FLC ¶92-614 …. 8.25, 8.34, 8.46 Bing and Bing (2007) FLC ¶93-318; [2007] FamCA 418 …. 7.39 Bingham and Montgomery [2014] FCCA 197 …. 5.47 Birch, In the Marriage of (1976) 2 Fam LN N8; FLC ¶90-088 …. 4.55 Bird, In the Marriage of (1979) 5 Fam LR 370; FLC ¶90-67 …. 7.21 Black and Black [2008] FamCAFC 7 …. 9.30 Black and Kellner, In the Marriage of (1992) 15 Fam LR 343; FLC ¶92-287 …. 8.38, 8.42, 8.56 Blake and Blake [2011] FMCAfam 796 …. 7.73 Blessington and Blunt [2016] FamCA 1094 …. 5.56 Blinko and Blinko [2015] FamCAFC 146 …. 5.7 Bocelli and Holland [2016] FamCA 450 …. 5.7 Boege and Boege [2001] FamCA 1167 …. 8.51 Bondelmonte v Bondelmonte [2017] HCA 8 …. 5.45 Bondelmonte and Bondelmonte [2014] FamCAFC 29 …. 7.16 — [2016] FamCAFC 48 …. 5.45

— (No 4) [2016] FamCA 939 …. 5.45 Bonnici, In the Marriage of (1991) 15 Fam LR 138; (1992) FLC ¶92-272 …. 8.76, 8.146 Bourke, In the Marriage of (1992) 16 Fam LR 325; (1993) FLC ¶92-356 …. 8.17, 8.18 Bourke and Golby [2013] FMCAfam 228 …. 9.10 Brady, In the Marriage of (1978) 4 Fam LN N54; FLC ¶90-513 …. 7.10, 7.21 Brainard and Wahlen [2011] FamCA 610 …. 5.40 Bramford and Ainslee [2016] FamCA 463 …. 5.61 Branchflower, In the Marriage of (1979) 6 Fam LR 188; (1980) FLC ¶90-857 …. 7.2 Brear and Corcoles-Alfaro, In the Marriage of (1997) 22 Fam LR 219; FLC ¶92-768 …. 5.47, 5.55, 5.73 Brease, In the Marriage of (1998) 22 Fam LR 518; FLC ¶92973 …. 8.73, 8.74 Bremner, In the Marriage of (1994) 18 Fam LR 407; (1995) FLC ¶92-560 …. 8.55, 8.78, 8.146 Bretton and Bondai [2013] FamCAFC 168 …. 5.66 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 5.39, 5.48, 8.68 Britt and Britt [2015] FCCA 685 …. 10.56 — [2017] FamCAFC 27 …. 8.68, 10.56 Broda and Docas [2007] FamCA 369 …. 4.22 Brown and Brown [2005] FamCA 1165 …. 7.14 — (2007) 37 Fam LR 59; FLC ¶93-316; [2007] FamCA 151 …. 7.39 Brown and George (1998) 24 Fam LR 58 …. 9.53

Brown and Pedersen, In the Marriage of (1988) 12 Fam LR 506; FLC ¶91-967 …. 5.48 — (1992) FLC ¶92-271 …. 5.39 Browne v Green (1999) FLC ¶92-873 …. 8.51 Browne and Green, In the Marriage of (1999) 25 Fam LR 482 …. 7.10 Buckland v Buckland [1967] 2 All ER 300 …. 4.19 Budding and Budding [2009] FamCAFC 165 …. 7.14, 7.18, 7.39 Burke and Burke [2009] FMCAfam 984 …. 5.51 Burke and Elliott, In the Marriage of (1990) FLC ¶92-161 …. 6.17

C C and D (falsely called C), In the Marriage of (1979) 5 Fam LR 636; FLC ¶90-636 …. 3.11, 3.13, 3.14, 3.29, 4.25 C and J, Re (1996) 20 Fam LR 930; FLC ¶92-697 …. 5.39, 5.48 C and M [2000] FamCA 1086 …. 8.76 C and T [2006] FamCA 1198 …. 5.44 Cadman and Hallett [2014] FamCAFC 142 …. 9.13 Caitlin and Kent, In the Marriage of (1986) 11 Fam LR 639; (1987) FLC ¶91-815 …. 8.276 Calder and Calder [2016] FamCAFC 36 …. 8.52 — (No 2) [2014] FamCA 106 …. 8.52 Calder and Cheffer [2013] FCCA 1812 …. 9.5 Calverley v Green (1984) 155 CLR 242; 9 Fam LR 940; FLC ¶91-565 …. 9.40 Campani and Suyapto [2008] FamCA 1121 …. 4.24, 4.25

Campbell and Cade [2012] FMCAfam 508 …. 4.34 Canik, In the Marriage of; Ceylan; Oakley Thompson & Co (1995) FLC ¶92-589 …. 2.35 Canning and Canning [2013] FCCA 2019 …. 5.54 Cannon and Acres [2014] FamCA 104 …. 5.59 Cantarella, In the Marriage of (1976) 1 Fam LR 11,483; FLC ¶90-056 …. 7.50 Cantrell and Jennings [2009] FMCAfam 229 …. 6.11 Cape and Cape [2013] FamCAFC 114 …. 5.73 Caretti, In the Marriage of (1977) 3 Fam LR 11,374; FLC ¶90270 …. 4.41, 4.62 Carlson and Bowden [2008] FamCA 1064 …. 5.56 Carman and Carman [2017] FamCA 99 …. 7.73 Carnell and Carnell (2006) FMCAfam 476 …. 6.3, 6.22 Carpenter and Carpenter [1994] FamCA 89; (1995) FLC ¶92583 …. 6.3 — [2014] FamCAFC 100 …. 5.39 Carpenter and Lunn (2008) FamCAFC 143 …. 5.6 Carriel and Lendrum [2013] FCCA 284 …. 5.66 Carrigan and Fredericks (SSAT Appeal) (2011) 45 Fam LR 657; [2011] FMCAfam 544 …. 6.11 Carrington and Carrington (No 2) [2010] FamCA 982 …. 8.115 Carroll and Maybury [2013] FCCA 288 …. 7.21 Carse and Carse [2012] FMCAfam 1202 …. 7.19 Carson, In the Marriage of (1999) 24 Fam LR 360; FLC ¶92835 …. 8.17 Carter, In the Marriage of (1981) 7 Fam LR 41; FLC ¶91-061

…. 8.32 Cartland and Dean [2013] FCCA 1545 …. 4.61 Carvell, In the Marriage of (1984) 9 Fam LR 1055; FLC ¶91586 …. 8.17 Cattanach and Leavens, In the Marriage of (1977) 3 Fam LR 11,276; FLC ¶90-246 …. 5.54 Cawthorn, In the Marriage of (1998) 23 Fam LR 86 …. 8.115, 8.116 Cazet v Faulkner [2011] FMCAfam 1157 …. 6.19 CDJ v VAJ (1998) 197 CLR 172; 23 Fam LR 755 …. 8.95 Ceballos and Ceballos [2013] FamCA 879 …. 4.11 Central Authority v Perry (1995) 20 Fam LR 380 …. 5.47, 5.73 Champness and Hanson [2009] FamCAFC 96 …. 5.52 Chancellor and McCoy [2013] FCCA 740 …. 9.26 — [2016] FamCAFC 256 …. 9.20 — [2016] FCCA 53 …. 9.20 Chandler, In the Marriage of (1981) 6 Fam LR 736; FLC ¶91008 …. 5.38 Chandra and Alhoub [2015] FamCA 77 …. 4.62 Chapa and Chapa [2013] FamCAFC 52 …. 5.39 Chapman, In the Marriage of (1979) FLC ¶90-671 …. 7.67 Chapman and Jansen, In the Marriage of (1990) 13 Fam LR 853; FLC ¶92-139 …. 2.34 Chappell and Chappell (2008) FLC ¶93-377 …. 5.6 Chaucer and Lake [2013] FCCA 953 …. 8.12 Chemaisse and Commissioner of Taxation (No 3) (1990) 97 FLR 176; 13 Fam LR 724; FLC ¶92-133 …. 7.42

Cheyne and Masters (SSAT Appeal) [2014] FCCA 856 …. 6.11 Child Support Registrar and Rawlings [2013] FCCA 370 …. 6.11 Chorn NH & Hopkins RC (2004) FLC ¶93-204 …. 8.84 Christian and Donald [2004] FamCA 1171 …. 6.19 Christie and Holden [2013] FamCA 1009 …. 5.36, 5.61 Clarence and Crisp [2016] FamCAFC 157 …. 5.18 Clark v R [2009] NSWCCA 112 …. 5.39 Clarke, In the Marriage of (1986) 11 Fam LR 364; FLC ¶91778 …. 4.34, 4.49, 4.50, 4.62 Clauson, In the Marriage of (1995) 18 Fam LR 693; FLC ¶92595 …. 7.39, 7.51, 7.62, 7.74, 8.34, 8.92, 8.97, 8.98, 8.99, 8.146 Clisbey and Viges [2011] FamCA 611 …. 9.16 Coggs v Bernard (1703) 2 Ld Raym 909 …. 2.1 Coghlan, In the Marriage of (2005) 33 Fam LR 414; FLC ¶93220; [2005] FamCA 429 …. 8.89, 8.92, 8.93, 8.94, 8.95 Cohen and Green [2017] FamCA 251 …. 10.1 Collins, In the Marriage of (1992) 16 Fam LR 261; (1993) FLC ¶92-343 …. 8.20 Collu & Rinaldo [2010] FamCAFC 53 …. 5.30 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 …. 8.6 Commonwealth v Australian Capital Territory [2013] HCA 55 …. 2.27 — v Verwayen (1990) 170 CLR 394; 95 ALR 321 …. 6.22 Commonwealth Central Authority and Cavanaugh [2015] FamCA 1005 …. 5.71

— [2015] FamCAFC 233 …. 5.71 Cooper v Crane [1891] P 369 …. 4.20, 4.22 Corbett v Corbett [1971] P 83 …. 3.12, 3.14, 3.15, 3.17 Cordell, In the Marriage of (1977) 3 Fam LR 11,588; FLC ¶90382 …. 7.58 Cording and Oster [2010] FamCA 511 …. 9.28 Cormick, In the Marriage of; Salmon (Respondent) (1984) 9 Fam LR 880; FLC ¶91-554 …. 2.22, 2.25, 2.28, 2.29, 2.51 Corner, In the Marriage of (1978) 4 Fam LN N1; FLC ¶90-438 …. 7.10, 7.21, 7.26, 7.74 Cosgrove and Cosgrove (1996) FLC ¶92-700 …. 6.23 Coulter, In the Marriage of (1989) 13 Fam LR 421; (1990) FLC ¶92-104 …. 8.92 Cowling and Cowling (1998) FLC ¶92-801; [1998] FamCA 19 …. 5.28, 5.40, 5.52 Cozanitis, In the Marriage of (1979) 4 Fam LR 709; FLC ¶90643 …. 8.43 Crampton and Robinson [2013] FamCA 65 …. 2.38 Crapp, In the Marriage of (1979) 5 Fam LR 47; FLC ¶90-615 …. 8.18, 8.92 Crawford, In the Marriage of (1979) 5 Fam LR 106; FLC ¶90647 …. 7.22, 8.55, 8.146 Crisp and Clarence [2015] FamCA 964 …. 5.18 Crocker and Melati [2014] FamCA 365 …. 4.22 Cruden and Sackitt [2013] FamCA 999 …. 5.8 Cummings v Clearmont Petroleum (1996) 185 CLR 124 …. 7.73 Currie, In the Marriage of (1976) 2 Fam LR 11,307; FLC ¶90101 …. 8.37

CW, In the Marriage of (1998) 22 Fam LR 750; FLC ¶92-802 …. 5.40

D D, In the Marriage of (1984) 10 Fam LR 73; FLC ¶91-593 …. 8.125 D (an infant), Re [1977] AC 602 …. 4.59 D v J (1996) DFC ¶95-175 …. 9.56 Dabney and Laird [2013] FCCA 214 …. 9.10 Dahl and Hamblin [2011] FamCAFC 202 …. 9.10 Dakin and Sansbury [2010] FMCAfam 628 …. 9.10 Dalton and Rudov [2014] FamCA 164 …. 5.14 Damiani and Damiani [2012] FamCA 535 …. 8.67 Danes and Danes [2013] FMCAfam 281 …. 5.20 Danes and Kennedy [2014] FCCA 497 …. 5.8 Danford and Danford [2010] FamCA 420 …. 8.37 — [2011] FamCAFC 54 …. 8.37 Daria and Daria [2009] FamCA 385 …. 8.80 Dave and Karia [2016] FamCA 414 …. 4.21 Davidson (No 2), In the Marriage of (1994) 17 Fam LR 656; FLC ¶92-469 …. 7.39, 8.120 Davis, In the Marriage of (1976) 1 Fam LR 11,522; FLC ¶90062 …. 10.50, 10.51 — (1982) 8 Fam LR 975; (1983) FLC ¶91-319 …. 10.52, 10.54, 10.55 Davis and Spring [2007] FamCA 1149 …. 5.61 Davut and Raif, In the Marriage of (1994) FLC ¶92-503 ….

8.34, 8.146 Dawes, In the Marriage of (1989) 13 Fam LR 599; (1990) FLC ¶92-108 …. 8.71, 8.146 Dawson and Dawson (SSAT Appeal) [2010] FMCAfam 221 …. 6.17 — (No 2) [2010] FMCAfam 1106 …. 7.39 De Angelis, In the Marriage of (1998) 30 Fam LR 304 …. 8.76 De L v Director-General, NSW Department of Community Services (1996) 20 Fam LR 390; FLC ¶92-706 …. 5.71 De Soysa and Ferrera [2013] FamCA 515 …. 4.11 Deacon and Castle [2013] FCCA 691 …. 5.54, 5.62 Dean, In the Marriage of (1977) 2 Fam LR 11,691; FLC ¶90213 …. 10.50, 10.51, 10.52, 10.53, 10.54 Debono and Debono [2013] FamCA 46 …. 8.42 — [2014] FamCA 3 …. 8.42 — (No 2) [2012] FamCA 1086 …. 8.42 — (No 2) [2013] FamCA 797 …. 8.42 — (No 3) [2013] FamCA 872 …. 8.42 Debrossard and Official Trustee in Bankruptcy [2011] FamCA 648 …. 8.24 Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844 …. 8.37 Deiter and Deiter [2011] FamCAFC 82 …. 5.40 Demara and Montijo [2013] FamCA 612 …. 8.28, 8.146 Dench, In the Marriage of (1978) 4 Fam LN N39; 6 Fam LR 105; FLC ¶90-469 …. 7.65, 8.92, 8.100, 8.122 Deniz, In the Marriage of (1977) 31 FLR 114; 7 Fam LN N3; FLC ¶90-252 …. 4.23, 4.24, 4.62

Dennis and Anor & Pradchapet [2011] FamCA 123 …. 5.22 Department of Family and Community Services and Haura [2015] FamCA 72 …. 5.68 Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218; 15 Fam LR 392; FLC ¶92-293 …. 5.24, 5.26, 5.68 Deputy Commissioner of Taxation v Swain [1988] FCA 238; (1988) 20 FCR 507; [1988] FCA 238 …. 8.26 Deslandes and Deslandes [2015] FamCA 913 …. 2.49 Di Mento v Visalli (1973) 1 ALR 351 …. 4.19 Dickens and Ventura [2016] FamCA 1110 …. 5.3 Dickons and Dickons [2012] FamCAFC 154 …. 8.54 Dickson, In the Marriage of (1999) 24 Fam LR 460; FLC ¶92843; [1999] FamCA 278 …. 8.88, 8.92 Diessel, In the Marriage of (1980) 6 Fam LR 1; FLC ¶90-841 …. 4.58 DJM and JLM (1998) 23 Fam LR 396; FLC ¶92-816 …. 7.65, 7.74, 8.122 DL and W [2012] FamCAFC 5 …. 5.66 Dodds and Storace [2014] FamCA 209 …. 5.20 Dodge and Krapf, In the Marriage of (1991) FLC ¶92-214 …. 6.3 Doherty, In the Marriage of (1995) 20 Fam LR 137; (1996) FLC ¶92-652 …. 8.65, 8.66, 8.146, 10.85 Dougherty and Dougherty (1987) 11 Fam LR 577; FLC ¶91823 …. 8.13 Dover and Dwight [2014] FamCA 346 …. 5.39, 5.61 Dovey Re; Ex parte Ross (1979) 5 Fam LR 1; FLC ¶90-616 …. 8.135, 8.141, 8.142, 10.46

Dow-Sainter, In the Marriage of (1980) 6 Fam LR 684; FLC ¶90-890 …. 7.21, 7.29, 7.74 DP v Commonwealth Central Authority [2001] HCA 39; (2001) 180 ALR 402 …. 5.72 Drysdale and Drysdale [2011] FamCAFC 85 …. 7.15 Dudley and Chedi [2011] FamCA 502 …. 5.22 Duff, In the Marriage of (1977) 15 ALR 476; 3 Fam LR 11,211; FLC ¶90-217 …. 8.16, 8.17, 8.18, 8.20, 8.39 Duke and Duke [2009] FamCAFC 174 …. 7.2, 8.44 Dunstan and Jarrod [2009] FamCA 480 …. 5.61 Durham v Durham (1885) 10 PD 80 …. 4.27 Dwyer and McGuire (1993) 17 Fam LR 42; FLC ¶92-420 …. 6.17

E Eakins and Eakins [2013] FCCA 1114 …. 6.23 Eastman v R [2000] HCA 29 …. 2.26 Edelsten, Re; Ex parte Donnelly (1988) 18 FCR 434 …. 10.56 Edwards and Simpson [2013] FCCA 14 …. 5.66 Ejje and Ejje [2002] FamCA 1003 …. 8.26 Eldaleh, Re [2016] FamCA 1103 …. 4.16 Elder and Elder [2008] FamCA 850 …. 8.58 Elford and Elford [2014] FCCA 2531 …. 8.74 — [2016] FamCAFC 45 …. 8.74 Eliades, In the Marriage of (1980) 6 Fam LR 916; (1981) FLC ¶91-022 …. 7.7, 7.15 Elias, In the Marriage of (1977) 3 Fam LR 11,496; FLC ¶90269 …. 9.45

Ellershaw and Survant [2013] FamCA 510 …. 5.30 Elspeth and Peter [2006] FamCA 1385 …. 5.60, 5.73 Elvin and Daking [2014] FamCA 218 …. 5.37 Elwood and Fisher [2012] FMCAfam 415 …. 9.10 Enmore and Smoothe [2014] FamCAFC 131 …. 5.39, 5.67 Eufrosin and Eufrosin [2013] FamCA 311 …. 8.74 Evans, In the Marriage of (1978) 4 Fam LN N13; 30 FLR 566n; FLC ¶90-435 …. 7.24, 7.31 Evans v Marmont; Wallace v Standford; Fuller v Taaffe (1998) 23 Fam LR 702; DFC ¶95-198 …. 9.56 Everett and Everett [2014] FamCAFC 152 …. 6.23 Ezard and Ezard [2017] FamCA 26 …. 7.73

F F, In the Marriage of (1982) 8 Fam LR 29; FLC ¶91-214 …. 7.49 F, Re; Ex parte F (1986) 10 Fam LR 940; FLC ¶91-739 …. 2.18, 2.21, 2.22, 2.25, 2.51 F and R, In the Marriage of (1992) 15 Fam LR 533; FLC ¶92300 …. 5.17 Fadden and Fadden [2009] FamCAFC 157 …. 8.30, 8.39 Fairbanks and Fairbanks [2009] FamCA 654 …. 7.66, 7.68 Fairchild and Fairchild [2010] FMCAfam 527 …. 8.67 Fairfax and Maguire [2013] FamCA 174 …. 5.8 Falk, In the Marriage of (1977) 3 Fam LR 11,238; FLC ¶90-247 …. 4.33, 4.34, 4.37, 4.38, 4.40, 4.43, 4.62 Fan and Napoli [2011] FMCAfam 761 …. 5.39 Farmer and Bramley (2000) 27 Fam LR 316; FLC ¶93-060 ….

8.74, 8.84 Farmer and Rogers [2009] FamCAFC 117 …. 5.56 Farnell, In the Marriage of (1996) 20 Fam LR 513; FLC ¶92681 …. 8.146 Farnell and Chanbua [2016] FCWA 17 …. 5.22 Farnham and Farnham [2012] FamCA 742 …. 5.3 Faukland and Shikia [2016] FamCAFC 83 …. 8.135 Fedele, In the Marriage of (1986) 10 Fam LR 1069; FLC ¶91744 …. 10.54 Fell and Hartell [2014] FamCA 111 …. 5.3, 5.37 Feltus, In the Marriage of (1977) 2 Fam LR 11,665; FLC ¶90212 …. 4.51 Fenech, In the Marriage of (1976) 1 Fam LR 11,250; FLC ¶90035 …. 4.42, 4.44, 4.62 Fenton and Marvel [2013] FamCAFC 132 …. 9.5, 9.14 Ferdinand and Ferdinand [2010] FMCAfam 465 …. 8.67 Ferguson, In the Marriage of (1978) 4 Fam LR 312; FLC ¶90500 …. 7.56, 7.57, 8.30, 8.65, 10.85 Ferguson and Monte [2014] FCCA 838 …. 5.47 Fern and Lumsden [2014] FamCA 7 …. 5.8 Ferraro, In the Marriage of (1992) 16 Fam LR 1; (1993) FLC ¶92-335 …. 8.34, 8.62, 8.83, 8.84, 8.102, 8.146 Fickling, In the Marriage of (1996) 20 Fam LR 258; FLC ¶92664 …. 8.98 Fielding and Fielding [2012] FCWA 86 …. 9.8 Fielding and Nichol [2014] FCWA 77 …. 9.20 Fields and Smith (2015) FLC ¶93-638 …. 8.84 Figgins, In the Marriage of (2002) 29 Fam LR 544; FLC ¶93-

122; [2002] FamCA 688 …. 8.67, 8.76, 8.84 Findlay and Punyawong [2011] FamCA 503 …. 5.22 Firth, In the Marriage of (1988) 12 Fam LR 547; FLC ¶91-971 …. 5.73 Fisher, In the Marriage of (1990) 13 Fam LR 806; FLC ¶92-127 …. 7.57, 8.64, 8.65 Fisher v Fisher (1986) 161 CLR 438; 11 Fam LR 11; FLC ¶91767; [1986] HCA 61 …. 2.25, 2.51, 8.28 Flacks and Chatburn [2014] FamCA 428 …. 5.56 Fleming, In the Marriage of [2007] FamCA 4490 …. 8.76 Fleming and Schmidt [2017] FamCAFC 12 …. 9.11 Fontana and Fontana [2013] FamCA 548 …. 8.87 Ford (falsely called Stier) v Stier [1896] P 1 …. 4.26, 4.62 Forsythe and Latimer [2010] FMCAfam 478 …. 6.11, 6.22 Fotherdell and Stadley [2009] FamCA 606 …. 5.54 Fountain and Alexander (1982) 8 Fam LR 67; FLC ¶91-218 …. 2.22 Franklin and McLeod, In the Marriage of (1993) 121 FLR 430; 17 Fam LR 793; (1994) FLC ¶92-481 …. 8.115, 8.116 Freeman and Freeman, In the Marriage of [1986] FamCA 23 …. 5.66 Friar and Friar [2011] FamCAFC 71 …. 8.23 — [2013] FamCA 121 …. 8.23 Frost and Sheahan [2008] FCA 1073 …. 8.26

G G, In the Marriage of (1978) 4 Fam LR 537; FLC ¶90-498 …. 4.35, 4.62

G v H (1994) 181 CLR 387; 18 Fam LR 180 …. 5.17 G & G [2004] FamCA 1179 …. 8.31 G and T (2003) 32 Fam LR 101; (2004) FLC ¶93-176 …. 8.135 Gabbard and Gabbard [2010] FMCAfam 1486 …. 8.92 Gaertner and Frubink [2017] FamCA 152 …. 7.2, 7.9 Gahen and Gahen [2014] FamCAFC 122 …. 5.39 Galazin and Galazin [2010] FMCAfam 1149 …. 7.67 Galliano and Galliano [2011] FamCAFC 149 …. 8.51 Gamble and Gamble [(1978) FLC ¶90-452 …. 6.23 Gamer, In the Marriage of (1988) 12 Fam LR 73; FLC ¶91-932 …. 8.45 Gao and Wang [2016] FamCAFC 183 …. 9.21 Garmonsway, In the Marriage of (1986) 10 Fam LR 1026; FLC ¶91-746 …. 8.26 Gastana and Mohammed Salah [2013] FamCA 113 …. 5.39 Gates, In the Marriage of [1976] VR 768; (1976) 1 Fam LR 11,452 …. 10.85 Gatto and Norton [2012] FMCAfam 1175 …. 2.49, 4.31 Gazzo v Comptroller of Stamps (Vic) (1981) 7 Fam LR 675; FLC ¶91-101 …. 2.9, 2.10, 2.51 Gee and Luxford [2017] FamCA 222 …. 8.102 Gelley, In the Marriage of (No 2) (1992) 15 Fam LR 483; FLC ¶92-291 …. 8.127 Gemelli and Pullano (No 2) [2016] FamCA 1020 …. 7.24 George and Butler [2015] FCCA 2154 …. 7.9 Gerber and Gerber [2010] FamCA 861 …. 8.42 Ghanem and Hilal [2014] FamCA 137 …. 5.3 Ghazel and Ghazel [2016] FamCAFC 31 …. 4.17

Gill, In the Marriage of (1984) 9 Fam LR 969; FLC ¶91-582 …. 8.51 Giller v Procopets [2008] VSCA 236 …. 10.74 Gillespie and Gillespie [2013] FCCA 872 …. 5.62 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 …. 5.26 Gillie, In the Marriage of (1978) 4 Fam LR 127; FLC ¶90-442 …. 10.50, 10.52, 10.55 Gilmore and Ray [2013] FamCA 153 …. 5.8 Gissing and Sheffield (No 3) [2015] FamCA 1019 …. 9.22 Giumelli [(1999) 196 CLR 101] …. 8.23 Gladdis v Freir (1990) DFC ¶95-092 …. 9.40 Goddard and Hilditch [2016] FamCA 631 …. 5.61 Gollings and Scott [(2007) FLC ¶93-319 …. 8.37 Gonzales and Garcia [2011] FamCAFC 49 …. 7.68 Good, In the Marriage of (1982) 2 Fam LR 354; FLC ¶91-249 …. 8.23 Goode and Goode (2006) 206 FLR 212; 36 Fam LR 422; FLC ¶93-286; [2006] FamCA 1346 …. 5.8, 5.28, 5.30, 5.40, 5.52, 5.73 Gordons and Hasse [2010] FamCA 1162 …. 8.48 Gosper, In the Marriage of (1987) 11 Fam LR 601; FLC ¶91818 …. 8.75, 8.146 Gottspiel and Rufus [2009] FamCA 512 …. 5.19 Gould and Gould (2007) FLC ¶93-333 …. 9.21 Grabar, In the Marriage of (1976) 2 Fam LR 11,581; FLC ¶90147 …. 7.47 Grace, In the Marriage of (1997) 22 Fam LR 442; (1998) FLC

¶92-792 …. 8.102 Graft and McCormick [2014] FamCAFC 28 …. 5.14 Grattan and Bancroft [2012] FamCA 913 …. 5.3 Green and Morgan [2010] FMCAfam 1514 …. 8.44 Grenfell and Grenfell [2010] FamCA 1078 …. 8.132 Grier and Malphas [2016] FamCAFC 84 …. 8.84 Grimshaw-Grieves and Grieves [2011] FMCAfam 125 …. 7.67 Grinnyway and Looper [2013] FamCA 1018 …. 5.8 Guiness and Guiness [2008] FamCAFC 10 …. 5.29 Guthrie v Millar (SC(WA), Wheeler J, 21 November 1996, unreported) …. 9.43 Guyopar, In the Marriage of (1986) FLC ¶91-769 …. 7.67 GWW and CMW, Re (1997) FLC ¶92-748 …. 5.68 Gyselman, In the Marriage of (1991) 15 Fam LR 219; (1992) FLC ¶92-279 …. 6.15, 7.33

H H, In the Marriage of (1981) 7 Fam LR 451 …. 6.23 H (an infant), Re [1964–5] NSWR 2004 …. 4.29 H v P [2011] WASCA 78 …. 5.18 H and M [2006] FamCA 1071 …. 5.44 Hacheri and Berrios [2010] FMCAfam 668 …. 6.11 Halabi and Artillaga (1993) 17 Fam LR 675; (1994) FLC ¶92470 …. 8.102 Hale and Harrison [2014] FamCA 165 …. 9.56 Halifax and Fabian [2009] FMCAfam 972 …. 5.19 Hall v Hall [2016] HCA 23 …. 7.2, 7.9, 7.10

Hall and Hall (1979) FLC ¶90-713 …. 10.43 — (No 3) [2013] FamCA 975 …. 7.10, 7.68 Hall and Rushton, In the Marriage of (1991) 14 Fam LR 907; FLC ¶92-249 …. 6.17 Hallas and Kefalos [2012] FamCA 860 …. 4.22 Halley and Halley [2011] FMCAfam 296 …. 7.17 Hallinan v Witynski (1999) 25 Fam LR 647; DFC ¶95-219 …. 9.56 Hamblin and Dahl [2010] FMCAfam 514 …. 9.10 Hamilton, In the Marriage of (1984) 9 Fam LR 996 …. 8.104 Hampton and Temple [2012] FamCA 681 …. 6.20 Hand and Bodily [2013] FamCAFC 98 …. 7.21 Harding and Crawley [2011] FamCA 581 …. 5.52 Harper and Harper [2013] FamCA 202 …. 7.14 Harradine and Harradine [2014] FamCA 188 …. 6.23 Harriott and Arena [2016] FamCAFC 69 …. 9.19 Harris, In the Marriage of (1980) 6 Fam LR 450; FLC ¶90-906 …. 10.47 — (1991) 15 Fam LR 26; FLC ¶92-254 …. 8.17, 8.146 — (1993) 16 Fam LR 579; FLC ¶92-378 …. 8.103 — (No 2) (1981) 7 Fam LR 515; FLC ¶91-100 …. 8.142 Harrison, In the Marriage (1996) 20 Fam LR 322; FLC ¶92-682 …. 8.92 Harrison and Woollard, In the Marriage of (1995) 18 Fam LR 788; FLC ¶95-598 …. 5.27, 5.47, 5.73 Hartnett and Sampson [2009] FamCA 106 …. 5.52 Hauff, In the Marriage of (1986) 10 Fam LR 1076; FLC ¶91747 …. 8.89

Hawkins and Hawkins [2016] FamCA 440 …. 7.18 Hayne, In the Marriage of (1977) 3 Fam LN N25; FLC ¶90-265 …. 8.49, 8.85 Hayton and Bendle (2010) 43 Fam LR 602; [2010] FamCA 592 …. 7.38, 8.92 Healey, In the Marriage of (1979) FLC ¶90-706 …. 10.51 Heath, In the Marriage of (1983) 9 Fam LR 97; FLC ¶91-326 …. 8.130 — (No 2) (1984) 9 Fam LR 642; FLC ¶91-517 …. 8.125, 8.129 Heath v Hemming (No 2) [2011] FamCA 749 …. 5.30 Heath and Yarram [2014] FCCA 1033 …. 6.23 Hedley and Hedley [2009] FamCAFC 179 …. 9.26 Heeks, In the Marriage of (1980) FLC ¶90-804 …. 7.46 Heidt, In the Marriage of (1976) 1 Fam LR 11,576; FLC ¶90077 …. 5.53 Henley and Beauman [2011] FMCAfam 340 …. 5.39 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 …. 4.31 Hepworth v Hepworth (1963) 110 CLR 309 …. 8.34, 8.146 Hickey, In the Marriage of (2003) 30 Fam LR 355; FLC ¶93143 …. 8.34, 8.89, 8.92, 8.93, 8.94, 8.95, 8.146 Hickey and Hickey and Attorney-General (Cth) [2003] FamCA 395 …. 8.37 Hides and Hatton, In the Marriage of (1997) 21 Fam LR 855; FLC ¶92-759 …. 6.15, 6.17 Hills and Killen [2015] FamCA 536 …. 4.11 Hirst and Rosen, In the Marriage of (1982) 8 Fam LR 251; FLC ¶91-230 …. 7.44, 7.58 Hiu and Ling [2010] FamCA 743 …. 4.11

Hodges, In the Marriage of (1977) 2 Fam LR 11,524; FLC ¶90203 …. 4.40, 4.62 Hodgson and Hodgson [2013] FamCA 1020 …. 5.54 Hoffman and Hoffman [2012] FMCAfam 1061 …. 8.31 — (2014) FLC ¶93-591; [2014] FamCAFC 92 …. 8.31, 8.84 Holden, In the Marriage of (1986) 11 Fam LR 835; (1987) FLC ¶91-842 …. 8.17 Holden and Wolff (2014) FamCAFC 224 …. 9.13 Holinski and Holinski [2015] FamCA 184 …. 5.3 — [2016] FamCA 45 …. 5.3 Holmes, In the Marriage of (1988) 12 Fam LR 331; FLC ¶91944 …. 8.17, 8.18 Horman, In the Marriage of (1976) 5 Fam LR 796; FLC ¶90024 …. 4.59, 5.33 Horsley, In the Marriage of (1991) 14 Fam LR 550; FLC ¶92205 …. 8.86 Hosking, In the Marriage of (1994) 18 Fam LR 581; (1995) FLC ¶92-579 …. 4.24, 4.62 Houlihan, In the Marriage of (1991) 14 Fam LR 910; FLC ¶92248 …. 6.16 House v The King (1936) 55 CLR 499 …. 8.37, 8.51 Howard and Lipschitz [2014] FamCA 272 …. 5.37 Howlett and Pike [2010] FMCAfam 845 …. 9.5 Hsing and Song [2016] FamCA 986 …. 5.71 Hudson, In the Marriage of (1986) 11 Fam LR 189; FLC ¶91768 …. 8.125 Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319 …. 8.135

Hughes v Curwen-Walker (1994) 18 Fam LR 625; (1995) DFC ¶95-160 …. 9.56 Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 …. 6.22 Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 …. 2.24, 2.25, 2.51, 3.8, 3.11, 3.12, 3.13, 3.18, 3.20, 3.29 Hylands and Collette [2017] FamCA 46 …. 5.3 Hyun and Namgung [2012] FamCA 146 …. 4.10

I Ibbott and Chaconas [2014] FamCA 73 …. 5.3, 5.54 Ibrahim and Templeman [2013] FamCA 340 …. 5.8 Iris and Cohen (No 2) [2011] FamCAFC 120 …. 5.52 Irish and Michelle [2009] FamCA 66 …. 5.47 Irvine, In the Marriage of (1995) 19 Fam LR 374; FLC ¶92-624 …. 5.39, 5.73 Isaac and Isaac [2016] FCCA 2397 …. 5.61 Isbister and Isbister [2013] FCCA 475 …. 7.17

J J v Lieschke (1987) 162 CLR 447 …. 5.39 J and W, In the Marriage of (1999) 25 Fam LR 299 …. 10.48 Jackson and Macek [2015] FamCAFC 114 …. 5.34 — [2015] FCCA 1656 …. 5.34 Jacob and Lawrence [2013] FamCA 188 …. 9.14 Janssen and Janssen [2013] FCCA 2281 …. 5.47 JG and BG, In the Marriage of (1994) 18 Fam LR 255; FLC

¶92-515 …. 5.38 James, In the Marriage of (1978) 4 Fam LR 401; FLC ¶90-487 …. 8.76, 8.85, 8.146 James and James [2013] FCCA 1188 …. 8.69 Jamie, Re [2011] FamCA 248 …. 5.68 Jamine and Jamine (No 2) [2012] FamCAFC 104 …. 8.42 Jane and Jane [2012] FamCA 1029 …. 5.3 Janssen and Janssen (No 2) [2016] FamCA 796 …. 5.7 Jayce and Carter [2013] FamCA 52 …. 5.8 JEL and DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075 …. 8.34, 8.84 Jenkins and Archer [2013] FamCA 532 …. 4.10, 4.11 Jenkins and Rubenstein [2009] FamCA 873 …. 4.10 Jennings, In the Marriage of (1997) 22 Fam LR 510; FLC ¶92773 …. 4.37, 4.62 JLM v Director-General, NSW Department of Community Services [2001] HCA 39; (2001) 180 ALR 402 …. 5.72 Jodie, Re [2013] FamCA 62 …. 5.68 Johnstone and Hayward [2014] FCCA 820 …. 6.11 Jollie and Dysart [2014] FamCAFC 149 …. 5.60, 5.62 Jonah and White [2011] FamCA 221 …. 9.5 — (2012) FLC ¶93-522; [2012] FamCAFC 200 …. 5.18, 9.5 Jones v Skinner (1835) 5 LJ Ch 90 …. 8.16 Jordan and Fielding [2013] FCCA 725 …. 6.22 Jsing and Kong [2016] FamCA 288 …. 4.11 Jurchenko and Foster [2014] FamCAFC 127 …. 5.52

K K, Re (1963) 5 FLR 38 …. 3.23, 3.29 — [1964] NSWR 2004 …. 4.29 K v Cullen (1994) 36 ALD 37; 126 ALR 38; 18 Fam LR 636 …. 4.29 K and B (1994) FLC 1 92-478 …. 5.39 K and Z, In the Marriage of (1997) 22 Fam LR 382; FLC ¶92783 …. 5.33, 5.47, 5.73 K Appeal, Re [1994] FamCA 21 …. 5.47 Kajewski and Kajewski (1978) FLC ¶90-471 …. 7.1 Kais and Turvey (1994) 17 Fam LR 498 …. 9.37 Kandal and Khyatt [2010] FMCAfam 508 …. 5.2 Kane and Kane (2013) FLC ¶93-569; [2013] FamCAFC 205 …. 8.84 Kannis and Kannis [2002] FamCA 1150 …. 8.42 — (2003) FLC ¶93-135 …. 9.21 Kapur v Kapur [1984] Fam Law R 920 …. 2.19, 2.51 Kazama and Britton [2013] FamCA 4 …. 9.10 Keaton, In the Marriage of (1986) FLC ¶91-745 …. 5.57 Keaton and Mahoney [2012] FamCA 658 …. 5.3 Keisinger and Paget [2008] FamCAFC 23 …. 7.39 Kelada, In the Marriage of (1984) 9 Fam LR 576; FLC ¶91-503 …. 4.53, 4.56 Kelly (No 2), In the Marriage of (1981) 7 Fam LR 762; FLC ¶91-108 …. 7.29, 8.20 Keltie and Keltie and Bradford [2002] FamCA 421 …. 6.3 Kemsley, In the Marriage of (1984) 10 Fam LR 125; FLC ¶91567 …. 10.48

Kenda and Johnson (1992) 15 Fam LR 369; (1993) FLC ¶92331 …. 2.35 Kendling v Kendling (2008) 39 Fam LR 404 …. 7.26 — v — (contempt) (2008) 40 Fam LR 134; [2008] FamCAFC 154 …. 5.29 Kennedy and Leightons [2017] FamCA 71 …. 5.56 Kennedy and Thorne [2016] FamCAFC 189 …. 8.6 Kennon, In the Marriage of (1997) 22 Fam LR 1; FLC ¶92-757; [1997] FamCA 27 …. 2.37, 7.54, 8.65, 8.66, 8.67, 8.68, 8.146, 10.45, 10.70, 10.74, 10.85 Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56 …. 8.16, 8.20, 8.32, 8.39, 8.123, 8.128, 8.146, 9.19 Kernez and Kernez [2009] FamCA 640 …. 4.24, 4.27 Kessey, In the Marriage of (1994) 18 Fam LR 149; FLC ¶92495 …. 8.75, 8.77 Kessler v Wenigar No 491 WDA 99 …. 6.22 Kevin (Validity of Marriage of Transsexual), Re [2001] FamCA 1074 …. 3.17 Khademollah and Khademollah (2000) FLC ¶93-050 …. 8.136 Khan v Khan (1962) 3 FLR 496 …. 3.11 Khoo and Pride [2013] FamCA 929 …. 5.8 Kimberley and Kimberley [2011] FamCA 406 …. 10.50 Kitson and Black [2014] FCCA 1332 …. 5.39 Knibbs and Preston (SSAT Appeal) [2013] FCCA 479 …. 6.11 Koch, In the Marriage of (1977) 3 Fam LN N66; FLC ¶90-312 …. 7.10 Kokl and Kokl (1981) FLC ¶91-078 …. 9.33

Korban and Korban [2009] FamCAFC 143 …. 5.47 Kostres and Kostres; (2009) 42 Fam LR 336; FLC ¶93-420; [2009] FamCAFC 222 …. 8.6 Kowaliw, In the Marriage of (1981) 7 Fam LN N13; FLC ¶91092 …. 8.37, 8.51, 8.146 Kowalski, In the Marriage of (1992) 16 Fam LR 235; (1993) FLC ¶92-342 …. 8.14, 8.61, 8.62 Kozma, In the Marriage of; Official Trustee in Bankruptcy (1992) 15 Fam LR 801; (1993) FLC ¶92-337 …. 2.35 Kozovska and Kozovski [2009] FMCAfam 1014 …. 8.67 Kreet and Sampir [2011] FamCA 22 …. 4.22 Kucera and Kucera [2009] FMCAfam 1032 …. 10.45

L L and T, In the Marriage of (1999) 25 Fam LR 590; [1999] FamCA 1699 …. 5.57 La Rocca, In the Marriage of (1991) 14 Fam LR 715; FLC ¶92222 …. 8.115, 8.116 Lambert v Lambert [2002] EWCA Civ 1685 …. 8.67 Lambton and Lambton [2017] FamCA 73 …. 7.15 Lanceley, In the Marriage of (1994) 18 Fam LR 71; FLC ¶92491 …. 8.23 Landin and Eades [2013] FCCA 1276 …. 5.8 Lane, In the Marriage of (1976) 1 Fam LR 11,385; FLC ¶90055 …. 4.37, 4.62 Lang, In the Marriage of (1976) 1 Fam LR 11,283 …. 7.58 Lange and Moores, In the Marriage of (1979) FLC ¶90-651 …. 7.29

Langmeil and Grange [2013] FamCAFC 31 …. 5.66 Lansell, In the Marriage of (1964) 110 CLR 353 …. 2.18 Lasic, N, Trustee for the Bankrupt Estate of v Lasic (2009) 41 Fam LR 369; [2009] FamCAFC 64 …. 8.25 Laudner and Doran [2012] FamCA 452 …. 5.8 Laue and Laue (decd) [2013] FCWA 87 …. 8.105 Lawrence and Abel [2013] FMCAfam 73 …. 5.6 Lawrie, In the Marriage of (1981) 7 Fam LR 560; FLC ¶91-102 …. 7.33, 7.74 Law-Smith and Seinor, In the Marriage of (1989) 13 Fam LR 397; FLC ¶92-050 …. 8.19 Leach and Leahy [2014] FCCA 1178 …. 5.30 Lee, In the Marriage of (1977) 3 Fam LR 11,609; FLC ¶90-314 …. 10.52, 10.53 Lee and Hutton [2013] FamCA 745 …. 9.10 Lee Steere, In the Marriage of (1985) 10 Fam LR 431; FLC ¶91-626 …. 8.34, 8.55, 8.85, 8.146 LeMay and Clark [2005] FCWA 23 …. 9.10, 9.14 Lemnos, G (A Bankrupt), Trustee of the Property of and Lemnos (2009) 41 Fam LR 120; FLC ¶93-394; [2009] FamCAFC 20 …. 8.24, 8.25 Lenehan, In the Marriage of (1987) 11 Fam LR 615; FLC ¶91814 …. 8.51, 8.146 Leroy and Moreau [2010] FMCAfam 903 …. 6.12 Levine and Levine [2011] FMCAfam 821 …. 6.11, 6.22 Liakos and Zervos [2011] FamCA 547 …. 8.51 Lightfoot and Hampson (1996) FLC ¶92-663 …. 6.19 Lin and Nicoll [2016] FamCA 401 …. 4.15, 4.16

Lincoln and Lincoln [2015] FCCA 18 …. 6.11 Lincoln (decd) and Moore [2016] FamCA 547 …. 9.33 Lindon v Commonwealth of Australia (No 2) [1996] HCA 14 …. 8.12 Lindsay and Baker [2007] FamCA 1273 …. 5.39 Litchfield, In the Marriage of (1987) 11 Fam LR 435; FLC ¶91840 …. 5.73 Little, In the Marriage of (1990) 14 Fam LR 118 …. 8.56 Liu, In the Marriage of (1984) 9 Fam LR 1060; FLC ¶91-572 …. 8.118 LK v Director-General, Department of Community Services (2009) 232 CLR 582; [2009] HCA 9 …. 5.71 Locke and Norton [2013] FCCA 1154 …. 2.32 Lovine and Connor [2012] FamCAFC168 …. 8.54 Lozanov and Lozanov (unreported, Full Court of the Family Court of Australia, Fogarty, Baker and McCall JJ, 8 June 1994) …. 9.19 LSH, Re; Ex parte RTF (1987) 11 Fam LR 805; FLC ¶91-843 …. 2.51 Lucy, Re (Gender Dysphoria) [2013] FamCA 518 …. 5.68 Lusby, In the Marriage of (1977) 3 Fam LN N85; FLC ¶90-311 …. 7.21, 7.33 Lute and Ingram [2009] FamCA 503 …. 4.24 Lutzke, In the Marriage of (1979) 5 Fam LR 553; FLC ¶90-714 …. 7.34, 7.36

M M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC

¶91-979 …. 5.39, 5.48 M and DB (2006) 36 Fam LR 454; FLC ¶93-293; [2006] FamCA 1380 …. 8.140 M and L (Aboriginal Culture) [2007] FamCA 396 …. 5.61 M and M (1988) 166 CLR 1235 …. 5.39 — (2006) 36 Fam LR 97 …. 7.14 M and W [2006] FamCA 1414 …. 5.44 Macchi v Scott (1991) DFC ¶95-104 …. 9.41 Macri and Macri [2010] FMCAfam 662 …. 5.60 Madley and Madley [2011] FMCAfam 1007 …. 4.22 Magill v Magill (2006) 226 CLR 551; 231 ALR 277; 81 ALJR 254; 36 Fam LR 1; [2006] HCA 51 …. 2.38, 6.21 Madin and Palis (2015) FLC ¶93-647 …. 9.26 Magas, In the Marriage of (1980) FLC ¶90-885 …. 8.85 Maguire and Sheldon [2011] FMCAfam 919 …. 10.43 Maharaj v Chand [1986] AC 898 …. 9.48 Maine and Maine [2015] FCCA 1753 …. 8.68 — [2016] FamCAFC 270 …. 8.68 Maks v Maks (1986) DFC ¶95-036 …. 9.39 Mallett, In the Marriage of (1984) 156 CLR 605; 9 Fam LR 449; FLC ¶91-507 …. 8.30, 8.31, 8.37, 8.45, 8.79, 8.83, 8.84, 8.146 Mallory and Alden [2009] FMCAfam 61 …. 5.56 Malone and Malone [2013] FCCA 1243 …. 5.47 Malpass and Mayson (2000) 27 Fam LR 288; FLC ¶93-061 …. 8.42 Malphas and Grier [2013] FamCA 324 …. 8.84 Malyszko, In the Marriage of (1979) 5 Fam LN N7; FLC ¶90-

650 …. 4.54, 4.62 Mandes and Bamford [2014] FamCA 190 …. 5.20 Mankiewicz and Swallow [2016] FamCAFC 153 …. 5.16 Manolis and Manolis (No 2) [2011] FamCAFC 105 …. 8.37 Mapstone, In the Marriage of (1979) 5 Fam LR 205; FLC ¶90681 …. 7.24 Marando, In the Marriage of (1997) 21 Fam LR 841; FLC ¶92754 …. 10.85 Marion, Re (1990) 14 Fam LR 427 …. 5.68 Mark, Re: an application relating to parental responsibilities [2003] FamCA 822 …. 6.3 Marker v Marker [1998] FamCA 42 …. 8.84 Markham and Markham [2013] FamCA 212 …. 5.8 Marlow, In the Marriage of (1995) 18 Fam LR 714; FLC ¶92588 …. 6.16 Marlowe-Dawson and Dawson (No 2) [2014] FamCA 599 …. 8.18 Marquis and Marquis [2012] FamCA 137 …. 4.24 Marsden and Winch [2009] FamCAFC 152 …. 5.66 Marsh, In the Marriage of (1993) 17 Fam LR 289; (1994) FLC ¶92-443 …. 10.74, 10.85 Martel and Martel [2013] FCCA 525 …. 5.3 Marvel and Marvel (No 2) [2010] FamCAFC 101 …. 5.23 Masters and Cheyne [2016] FamCAFC 255 …. 6.11 Masterton and Masterton [2012] FMCAfam 913 …. 6.23 Matthew, Re [2017] FamCA 74 …. 5.68 Matthews and Farmer [2012] FamCA 672 …. 5.3 Matthews and Matthews [2014] FamCAFC 99 …. 6.19

Maunder, In the Marriage of (1999) 25 Fam LR 579; FLC ¶92871 …. 4.57 Mayne and Mayne (2011) FLC ¶93-479; [2011] FamCAFC 192 …. 8.69, 8.84 Mazorski and Albright [2007] FamCA 520 …. 5.37, 5.44 McCall and Clark [2009] FamCAFC 92 …. 5.52 McCoy and Chancellor [2014] FamCAFC 62 …. 9.26 McDonald and McDonald (1977) FLC ¶90-317 …. 9.26 McDougall, In the Marriage of (1976) 1 Fam LR 11,581; FLC ¶90-076 …. 8.53 McIntosh and Anderson [2013] FamCA 164 …. 8.12 McKean and Page (1999) 25 Fam LR 15 …. 10.74 McKee v McKee (1951) AC 352 …. 5.39 McL, In the Marriage of (1989) 15 Fam LR 7; (1991) FLC ¶92238 …. 5.61 McLay, In the Marriage of (1996) 20 Fam LR 239; FLC ¶92667 …. 8.34, 8.84, 8.146 McLeod, In the Marriage of (1976) 1 Fam LR 11,280; FLC ¶90-043 …. 4.43, 4.44, 4.62 McMahon, In the Marriage of (1976) 2 Fam LR 11,267; FLC ¶90-128 …. 7.41 McMaster and Wyhler [2013] FamCA 989 …. 9.8 Mead, In the Marriage of (1983) 9 Fam LR 193 …. 7.57 Mears and Mears [2012] FamCAFC 52 …. 3.25, 4.15 Medlow and Medlow [2016] FamCAFC 34 …. 8.37 — (No 2) [2014] FamCA 530 …. 8.37 Mee and Ferguson, In the Marriage of (1986) 10 Fam LR 971; FLC ¶91-716 …. 6.17

Meekin and Cline [2017] FamCA 264 …. 10.1 Mehta, In the Marriage of [1945] 2 All ER 690 …. 4.26 Mena and Mena [2012] FamCA 1046 …. 8.76 — [2016] FamCAFC 85 …. 8.76 Mercier v Mercier [1903] 2 Ch 98 …. 9.40 Merrett and Bass [2013] FMCAfam 263 …. 5.8 Mertens and Mertens [2014] FamCA 475 …. 5.39, 5.60 Mezzacappa, In the Marriage of (1987) 11 Fam LR 957; FLC ¶91-853 …. 8.42 Michael — Surrogacy Arrangements, Re [2009] FamCA 691 …. 5.22 Miller and Harrington [2009] FamCAFC 12 …. 5.66 Miller and Miller [2009] FMCAfam 302 …. 4.36 Miller and Murphy [2016] FCCA 974 …. 10.56 Miller and Trent [2011] FMCAfam 324 …. 9.14 Millhouse and Mullins (No 2) [2017] FamCA 230 …. 7.15 Mills, In the Marriage of (1978) FLC ¶90-404 …. 5.57 Mills and Watson [2008] FMCAfam 2 …. 5.6 Millson and Millson [2014] FCCA 247 …. 5.60 Milner, In the Marriage of (1963) 3 FLR 499 …. 7.74 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; 31 Fam LR 339; [2004] HCA 20 …. 2.1, 5.68 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 …. 5.4 Minton v Minton [1979] AC 593 …. 7.63 Mitchell, In the Marriage of (1995) 19 Fam LR 44; FLC ¶92-

601 …. 7.9, 7.14, 7.16, 7.19, 7.20, 7.21, 7.24, 7.28, 7.30, 7.39, 7.43, 7.74, 8.92, 8.146 Mitchell and Sadko [2014] FamCA 300 …. 5.54 — (No 2) [2014] FamCA 377 …. 5.52 Mizrah and Elahi [2015] FamCA 1197 …. 4.11 Moby and Schulter [2010] FamCA 748 …. 9.10 Moffa v R (1977) 13 ALR 225 …. 10.84 Moge v Moge (1992) 43 RFL (3d) 345 …. 7.20, 7.64 Money, In the Marriage of (1994) 17 Fam LR 814; FLC ¶92485 …. 8.55 Monroe and Monroe [2009] FamCAFC 173 …. 8.42, 8.46 Moran, In the Marriage of (1994) 18 Fam LR 534; (1995) FLC ¶92-559 …. 8.23 Morgan, In the Marriage of (1997) 22 Fam LR 79; FLC ¶92760 …. 2.35 Morgan v Bell [2011] VSC 302 …. 10.74 Morgan and Miles (2007) 38 Fam LR 275; FLC ¶93-343; [2007] FamCA 1230 …. 5.52, 5.56 Morgan and Morgan [2012] FamCA 394 …. 5.60, 5.62 Morrison, In the Marriage of (1995) 19 Fam LR 662; FLC ¶92639 …. 5.60, 8.114 Moss v Moss [1897] P 263 …. 4.23 Mosswell and Magatjehe [2010] FamCA 378 …. 4.10 Mottee, In the Marriage of (1976) FLC ¶90-099 …. 7.74 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 …. 5.30, 5.52 Muschinski v Dodds (1985) 11 Fam LR 930; DFC ¶95-020 …. 9.40, 9.44, 9.46, 9.47, 9.53, 9.54, 9.56 Mullane, In the Marriage of (1983) 8 Fam LR 777; FLC ¶91-

303 …. 8.134 Mulvena, In the Marriage of (1999) FLC ¶98-006 …. 6.3 Murkin, In the Marriage of (1980) 5 Fam LR 782; FLC ¶90806 …. 10.47 Musgrove and Panshin [2014] FCCA 1680 …. 5.47 MW v Director-General, Department of Community Services (2008) 82 ALJR 629 …. 9.10

N N (No 2), In the Marriage of (1981) 7 Fam LR 889; FLC ¶91111 …. 5.60 N and S, In the Marriage of (1995) 19 Fam LR 837; (1996) FLC ¶92-655 …. 5.39 Nada and Nettle [2014] FamCAFC 123 …. 5.52, 5.67 Nagri and Chapal [2012] FamCA 464 …. 4.22 Najjarin and Houlayce, In the Marriage of (1991) 14 Fam LR 889; FLC ¶92-246 …. 4.26 ND and BM (2003) 31 Fam LR 22; [2003] FamCA 469 …. 6.3, 6.22 Neale, In the Marriage of (1991) 14 Fam LR 861; FLC ¶92-242 …. 8.36 Neil and Radford [2013] FamCA 588 …. 5.8 Neville and Neville [2010] FMCAfam 1162 …. 6.12 Newland and Rankin [2017] FCCA 210 …. 9.12 Newlands v Newlands (2007) 37 Fam LR 103; [2007] Fam CA 168 …. 5.52 Newman and Newman [2013] FamCA 37 …. 8.84 Newman and Wallace [2012] FMCAfam 523 …. 5.66

Newport and Newport [2017] FamCA 177 …. 8.145 Nguyen v Nguyen (1990) 169 CLR 245 …. 8.94 Nhan and Young [2010] FMCAfam 989 …. 5.47 Niem and Tong [2016] FamCA 1089 …. 5.8 Niemann v Electronics Industries Ltd [1978] VR 431 …. 8.37 Nolan and Ingram, In the Marriage of (1984) 9 Fam LR 808; FLC ¶91-585 …. 8.17, 8.18 Nolan and Nolan [2012] FamCA 967 …. 7.15 Noogle and Noogle [2017] FamCA 140 …. 8.68 Norbis v Norbis (1986) 161 CLR 513; 10 Fam LR 819; FLC ¶91-712; [1986] HCA 17 …. 8.30, 8.31, 8.37, 8.50, 8.51, 8.95, 8.146 Norman and Norman [2010] FamCAFC 66 …. 8.31 Norton and Locke [2013] FamCAFC 202 …. 2.32, 9.11, 9.13, 10.50 Nuell, In the Marriage of (1976) 1 Fam LR 11,239; FLC ¶90031 …. 4.54, 4.62 Nutting, In the Marriage of (1978) 4 Fam LN N7; FLC ¶90-410 …. 7.16, 7.74

O Oakely and Read [2007] FamCA 1520 …. 5.29 Oakley and Cooper [2009] FamCAFC 133 …. 5.48 O’Boyle and Salt [2014] FamCA 132 …. 5.8 O’Brien and O’Brien (1983) FLC ¶91-316 …. 7.39 O’Connor and Salman [2013] FamCA 488 …. 5.3 O’Dea, In the Marriage of (1980) 6 Fam LR 675; FLC ¶90-896 …. 10.50, 10.51

O’Shea, In the Marriage of (1988) 12 Fam LR 537; FLC ¶91964 …. 8.17 Official Trustee in Bankruptcy v Bassola (No 3) (1986) 11 Fam LR 557; FLC ¶91-760 …. 8.125 Oliver and Oliver (1977) FLC ¶90-227 …. 6.23 Olliver, In the Marriage of (1978) 4 Fam LR 360; FLC ¶90-499 …. 7.21, 7.25, 7.58 Olmpei and Banieneva [2010] FamCA 21 …. 4.10 Oltman and Harper (No 2) [2009] FamCA 1360 …. 4.15 Oriolo, In the Marriage of (1985) 10 Fam LR 665; FLC ¶91653 …. 8.38, 8.42, 9.21 Orpheus and Orpheus [2014] FamCAFC 70 …. 5.52 Oscar and Acres [2007] FamCA 1104 …. 5.61 Ostrofski, In the Marriage of (1979) 5 Fam LR 685; FLC ¶90730 …. 7.36 Otway, In the Marriage of (1986) 11 Fam LR 99; (1987) FLC ¶91-807 …. 4.24, 4.62 Oxenham and Oxenham [2009] FamCAFC 167 …. 8.12

P P and P (1995) 19 Fam LR 1; FLC ¶92-615 …. 5.26 P and P, Re Application by [1973] VR 533 …. 4.29 Pacelli and Hopkinson [2010] FMCAfam 1248 …. 8.26 Padma and Padma [2007] FamCA 670 …. 4.10 Paget and Dubois [2013] FCCA 1746 …. 8.42, 8.113 Paine and Cacatan [2012] FamCA 959 …. 4.10 Painter and Morley [2007] FamCA 283 …. 5.45 Palmer, In the Marriage of (1985) 10 Fam LR 406; FLC ¶91-

606 …. 8.17 Palmer and Palmer [2010] FMCAfam 999 …. 8.31, 8.67, 10.45 Panagakos and Panagakos [2013] FamCA 463 …. 8.94 Park, Re Estate of; Park v Park [1954] P 112; [1953] 3 WLR 1012; [1953] 2 All ER 1411 …. 4.27 Parker, In the Marriage of (1983) 9 Fam LR 323; FLC ¶91-364 …. 8.119 Parkes and Parkes [2014] FCCA 102 …. 8.6 Partington and Cade (No 2) (2009) 42 Fam LR 401; FLC ¶93422; [2009] FamCAFC 230 …. 5.39 Pastrikos, In the Marriage of (1979) 6 Fam LR 497; (1980) FLC ¶90-897 …. 8.146 Patching, In the Marriage of (1995) 18 Fam LR 675; FLC ¶92585 …. 8.114 Patterson, In the Marriage of (1979) FLC ¶90-705 …. 7.24, 7.58 Pavey, In the Marriage of (1976) 1 Fam LR 11,358; FLC ¶90051 …. 4.34, 4.35, 4.36, 4.39, 4.43, 4.45, 4.62, 7.7, 9.16 Peabody and Peabody [2013] FCCA 1980 …. 8.76 Peel and Hannan [2013] FCCA 196 …. 5.60 Pellegrino, In the Marriage of (1997) 22 Fam LR 474; FLC ¶92-789 …. 8.75, 8.77 Penn and Haughton [2013] FCCA 1941 …. 5.20 Perrett and Perrett (1990) FLC ¶92-101 …. 8.18 Peter and Elspeth [2009] FamCA 551 …. 5.60 Petruski and Balewa [2013] FamCAFC 15 …. 8.54 Petterd, In the Marriage of (1976) 1 Fam LR 11,496; FLC ¶90065 …. 7.44

Pflugradt, In the Marriage of (1981) 7 Fam LR 188; FLC ¶91052 …. 8.123, 8.126 Philippe, In the Marriage of (1977) 4 Fam LR 153; (1978) FLC ¶90-433 …. 4.55 Phillips, In the Marriage of (2002) FLC ¶93-104 …. 8.34 Phitzner and Hollas [2014] FamCA 344 …. 5.39 Pierce, In the Marriage of (1998) 24 Fam LR 377; FLC ¶92844; [1998] FamCA 74 …. 8.37, 8.55 Piper and Mueller [2014] FCCA 2659 …. 9.30 — [2015] FamCAFC 241 …. 9.30 Pleym, In the Marriage of (1986) 11 Fam LR 451 …. 8.104 Plowman, In the Marriage of (1970) 16 FLR 447 …. 10.54 Plows (No 2), In the Marriage of (1979) 5 Fam LR 590; FLC ¶90-712 …. 10.48 Polec and Staker (SSAT Appeal) [2011] FMCAfam 959 …. 6.13 Polonius and York [2010] FamCAFC 228 …. 8.51 Porto and Porto (No 3) (2010) 45 Fam LR 101; [2010] FamCA 1145 …. 8.135 Prewett and Mann [2013] FamCAFC 130 …. 5.66 Price and Price [2013] FCCA 1372 …. 4.31 Price and Underwood (2008) 39 Fam LR 614 …. 4.36 Pritchard, In the Marriage of (1982) FLC ¶91-286 …. 7.67 Prpic, In the Marriage of (1995) FLC ¶92-574 …. 8.34 Public Trustee v Kukula (1990) 14 Fam LR 97; DFC ¶95-090 …. 9.37 Pullman and Pullman (No 2) [2012] FamCA 980 …. 5.3 Puls, In the Marriage of (1976) 1 Fam LR 11,252; FLC ¶90-036

…. 7.21

Q Q, Re (1994) 18 Fam LR 442; (1995) FLC ¶92-565 …. 10.74 Quinn, In the Marriage of (1979) FLC ¶90-677 …. 8.54

R R, In the Marriage of (1998) 23 Fam LR 456; FLC ¶92-820 …. 5.32, 5.73 R v F (1995) 20 Fam LR 118; (1996) FLC ¶92-650 …. 5.73 — v Harris & McGuiness (1988) 17 NSWLR 158 …. 3.17 — v L (1991) 15 Fam LR 122; FLC ¶92-266 …. 2.25, 2.51, 3.11 — v Little (unreported) …. 10.85 — v Lambert; Ex parte Plummer (1980) 6 Fam LR 355; FLC ¶90-904 …. 2.23, 2.51 — v Moody (unreported) …. 10.85 — v Patton [1998] 1 VR 7 …. 10.77 — v Ramage [2004] VSC 508 …. 10.85 — v Sebo (unreported) …. 10.85 — v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 …. 8.34, 8.146 Rabab and Rashad [2009] FamCA 69 …. 4.26 Radcliffe and Hall [2011] FMCAfam 781 …. 6.22 Radley and Radley [2013] FamCA 346 …. 5.8 Rafferty and Spencer [2016] FamCAFC 97 …. 5.62 Rafter and Rafter [2013] FamCAFC 158 …. 7.2

Rahman and Rahman [2013] FamCAFC 162 …. 8.122 Ramirez and Ramirez [2014] FamCA 153 …. 5.37 Rankin and Rankin [2016] FamCA 250 …. 7.18 — [2017] FamCAFC 29 …. 7.18 Ravice and Hillon [2014] FamCA 2 …. 5.3, 5.8 Ray and Males [2009] FamCA 219 …. 5.56 Redman, In the Marriage of (1987) 11 Fam LR 411 …. 7.68 Reitsema v Reitsema (1991) 15 Fam LR 706; (1992) DFC ¶95126 …. 9.56 Rewal, In the Marriage of (1991) 103 FLR 384; FLC ¶92-225 …. 4.15 Reynolds v Reynolds (1973) 1 ALR 318; 47 ALJR 499 …. 5.39 Ricci and Jones [2010] FMCAfam 1425 …. 9.10, 9.14 Rice and Asplund, In the Marriage of (1978) 6 Fam LR 570; (1979) FLC ¶90-725 …. 5.52, 5.66 Richardson, In the Marriage of (1979) 4 Fam LN N58; FLC ¶90-603 …. 7.21, 7.24, 7.29, 7.37 Rickaby, In the Marriage of (1995) 19 Fam LR 814; FLC ¶92462 …. 8.17, 8.146 Roberts, In the Marriage of (1977) 3 Fam LN N59 …. 7.48 Robert and Golden [2011] FamCA 443 …. 4.22 Rolfe, In the Marriage of (1977) 5 Fam LR 146; (1979) FLC ¶90-629 …. 8.79 Romano and June [2013] FamCA 344 …. 8.16, 8.123 Rosa and Rosa [2009] FamCAFC 81 …. 5.52 Rosati, In the Marriage of (1998) 23 Fam LR 288; FLC ¶92804 …. 7.51, 7.74, 8.66, 8.98 — (FCA, 14 February 1997, unreported) …. 8.66

Ross-Jones, Re and Marinovich; Ex parte Green (1984) 56 ALR 609; 59 ALJR 132; 9 Fam LR 888; FLC ¶91-555 …. 8.142, 8.146 Ross Smith v Ross Smith [1963] AC 280; [1962] 1 All ER 344; [1962] 2 WLR 388 …. 4.8 Rowan, In the Marriage of (1977) 3 Fam LN N76; FLC ¶90310 …. 7.26 Rowe, In the Marriage of (1980) 6 Fam LR 435; FLC ¶90-895 …. 10.51, 10.52, 10.53, 10.55 Roy and Sturgeon (1986) 11 Fam LR 271; DFC ¶95-031 …. 9.7 Rubenstein and Hartnett [2011] FMCAfam 876 …. 9.14 Rushby and Bilsberry [2014] FamCA 286 …. 5.37 Russell v Russell; Farrelly v Farrelly (1976) 1 Fam LR 11,133; FLC ¶90-039 …. 2.18 Russell and Close (FamCA, joint judgment of Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993, unreported) …. 5.7 Russell and Russell (No 5) [2012] FamCA 917 …. 4.31

S S, In the Marriage of (1980) 5 Fam LR 831; FLC ¶90-820 …. 3.20, 3.29, 4.21, 4.22, 4.62 S and S [2003] FamCA 905 …. 8.67 S v AG and MR [2011] EWHC 2637 …. 8.74 Saba and Saba (1984) FLC ¶91-579 …. 8.18 Sabri, Re; Ex parte Brien (1996) 21 Fam LR 213; (1997) FLC ¶92-732 …. 8.26 Sadler and Lawless [2012] FamCA 856 …. 5.3

Sadlier and Sadlier [2015] FamCAFC 130 …. 7.1, 7.73 Saintclaire and Saintclaire [2013] FamCA 491 …. 8.6 — [2015] FamCAFC 245 …. 8.6 Salah and Salah [2016] FamCAFC 100 …. 5.3 Salmon and Marin [2010] FamCA 1248 …. 5.58 Sam and Terry, Re (Gender Dysphoria) [2013] FamCA 563 …. 5.68 Sampson and Hartnett [2015] FamCA 64 …. 5.52 Sanders, In the Marriage of (1976) 1 Fam LR 11,433; FLC ¶90-078 …. 5.56 Sanders v Sanders (1967) 116 CLR 366 …. 8.98, 8.141, 8.142 Sandford and Cobb [2016] FamCA 11 …. 5.45 Sandrk, In the Marriage of (1991) 15 Fam LR 197; FLC ¶90260 …. 8.117 Sattle and Easton [2012] FMCAfam 1166 …. 8.69 Savery, In the Marriage of (1990) 13 Fam LR 812; FLC ¶92131 …. 6.15, 6.17 Scarborough, In the Marriage of (1978) FLC ¶90-501 …. 8.119 Scott v Sebright (1886) 12 PD 21 …. 4.19, 4.22, 4.62 Searle (formerly Pencious) and Pencious [2013] FamCA 375 …. 8.67 Seaward and MacDuff [2013] FamCA 485 …. 5.8 Secretary, Department of Family and Community Services and Padwa [2016] FamCAFC 57 …. 5.71 Secretary, Department of Social Security v SRA (1993) 118 ALR 467 …. 3.17 Secretary of the Department of Health and Human Services v Ray (Costs) [2010] FamCAFC 258 …. 5.56

Sedgely, In the Marriage of (1995) 19 Fam LR 363; FLC ¶92623 …. 5.73 Seidler and Schallhofer (1982) 8 Fam LR 598; FLC ¶91-273 …. 3.20 Semperton and Semperton [2012] FamCAFC 132 …. 8.92 SG, Re (1968) 11 FLR 326 …. 3.22, 3.23, 3.29 Shakir and Shakir [2013] FamCAFC 188 …. 7.32 Shane, Re (Gender Dysphoria) [2013] FamCA 864 …. 5.68 Sharp, In the Marriage of (1978) 4 Fam LN N38; FLC ¶90-470 …. 7.21 Sharp and Sharp [2011] FamCAFC 150 …. 9.26 Shaw, In the Marriage of (1989) 12 Fam LR 806; FLC ¶92-010 …. 8.44 Sheahan, In the Marriage of (1993) 16 Fam LR 437; FLC ¶92375 …. 6.15 Sheedy, In the Marriage of (1979) 5 Fam LN N24; FLC ¶90719 …. 7.57, 10.85 Sheffield and Oakes [2013] FamCA 183 …. 5.30 Sheldon and Abraham (No 2) [2013] FCCA 2167 …. 5.20 Sheridan, In the Marriage of (1994) 18 Fam LR 415; FLC ¶92517 …. 5.60, 5.73 Sieling, In the Marriage of (1979) 4 Fam LR 713; FLC ¶90-627 …. 8.137 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 …. 5.30 Simmons and Simmons [2008] FamCA 1088 …. 8.16, 8.19, 8.39 Simon and Hassett [2014] FCCA 48 …. 8.28, 8.49 Simon and Michel [2010] FMCAfam 1055 …. 8.114

Simon and Simon [2013] FCCA 432 …. 8.24 Simpson and Brockman (2010) 43 Fam LR 32; [2010] FamCAFC 37 …. 5.19 Simpson and Hamlin, In the Marriage of (1984) 9 Fam LR 1040; FLC ¶91-576 …. 8.117, 8.118 Sinclair and Hatcher [2014] FCCA 395 …. 9.10 Sinclair and Whittaker [2013] FamCAFC 129 …. 9.10 Sinha and Sinha [2014] FamCA 159 …. 5.20 Sita and Bedi [2015] FamCA 1105 …. 4.22 Skeates-Udy and Skeates, In the Marriage of (1995) 19 Fam LR 557 …. 5.51 Slapp, In the Marriage of (1989) 13 Fam LR 158; FLC ¶92-022 …. 8.119 Sloan, In the Marriage of (1994) 18 Fam LR 249 …. 8.101 Smedley and Snowden [2014] FCCA 762 …. 5.3 Smith, In the Marriage of (1990) 14 Fam LR 521; FLC ¶92-200 …. 8.27 Smith v St James; Smith v Wickstein (1996) FLC ¶92-714 …. 6. 3 Smith and Fields [2012] FamCA 510 …. 8.51, 8.84 Smythe, In the Marriage of (1983) 8 Fam LR 1029; FLC ¶91337 …. 5.57 Soblusky, In the Marriage of (1976) 2 Fam LR 11,528; FLC ¶90-124 …. 7.35, 7.36, 7.56, 7.57, 10.85 Somerset and Somerset [2009] FamCAFC 5 …. 7.27 Somerville and Somerville [2014] FCCA 695 …. 5.62 Spade and Spade [2014] FCCA 653 …. 8.12 Spano and Spano (1979) FLC ¶90-707 …. 7.18, 7.39

Spencer v Commonwealth (1907) 5 CLR 418 …. 8.45 Stacey and Woden [2015] FamCA 1107 …. 5.39 Stanford v Stanford (2012) 247 CLR 108; FLC ¶93-518; [2012] HCA 52 …. 8.9, 8.18, 8.28, 8.34, 8.49, 8.84, 8.105, 8.146, 9.14, 9.20, 9.21 Stanley and Stanley [2016] FamCA 1130 …. 5.7 Stapleton and Hayes [2009] FamCA 437 …. 5.48 Star and Star [2013] FamCA 91 …. 8.12 Stay, In the Marriage of (1997) 21 Fam LR 626; FLC ¶92-751 …. 8.17, 8.42, 8.84, 8.146 Stein, In the Marriage of (1986) 11 Fam LR 353; FLC ¶91-779 …. 8.42 — (2000) 25 Fam LR 727; FLC ¶93-004 …. 7.39, 7.53 Steinmetz, In the Marriage of (1981) 6 Fam LR 554; FLC ¶91079 …. 7.29, 7.58 Stephens and Stephens (2007) FLC ¶93-336; [2007] FamCA 680 …. 8.13, 8.16, 8.18, 8.20, 8.32, 8.39, 8.128 Stokoe, In the Marriage of (1976) 2 Fam LR 11,151; FLC ¶90092 …. 7.29 Stone, In the Marriage of (1976) 2 Fam LR 11,235; FLC ¶90134 …. 10.50 Stone and Stone [2013] FamCA 357 …. 5.3 Strahan and Strahan (2009) 42 Fam LR 203; [2009] FamCAFC 166 …. 7.15, 7.28 — [2013] FamCAFC 203 …. 7.10, 7.15, 7.26 — (Interim Property Orders) (2009) 42 Fam LR 203; (2011) FLC ¶93-466; [2009] FamCAFC 166 …. 8.37, 8.47, 8.48 Suiker, In the Marriage of (1993) 17 Fam LR 236; FLC ¶92436 …. 8.42, 8.114

Sullivan and Cunez [2016] FamCA 359 …. 5.3 Sully and Sully (No 2) [2016] FamCA 706 …. 8.37 Summerby and Cadogen [2011] FamCAFC 205 …. 10.43 Sutton and Anderson [2014] FamCA 215 …. 5.35 Swarb and Swarb [2013] FamCA 404 …. 8.44 Symons and Symons [2014] FCCA 1550 …. 5.54 Szechter v Szechter [1970] 3 All ER 905 …. 4.19

T T and T (1984) FLC ¶91-588 …. 4.11 Tabussi and Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (decd) [2015] FCWA 108 …. 8.123 Talbot, In the Marriage of [1994] FamCA 129 …. 9.31 Talbot and Talbot (1979) 5 Fam LR 766; FLC ¶90-696 …. 8.85 Talbot and Wayans [2013] FMCAfam 84 …. 5.39 Tallant and Kelsey [2017] FamCA 210 …. 10.1 Tasha and Peng [2012] FamCA 385 …. 9.10 Tate, In the Marriage of (2000) FLC ¶93-047 …. 8.38 Taylor, In the Marriage of (1977) 15 ALR 226; 3 Fam LR 11,220; FLC ¶90-226 …. 7.2, 8.96, 8.122 Taylor and Barker [2007] FamCA 1246 …. 5.52 Taylor Black and Vasser [2008] FamCA 335 …. 5.48 Teesdale and Wileman [2014] FamCA 177 …. 8.67 Teh and Muir [2015] FamCAFC 224 …. 9.31 — [2017] FamCA 138 …. 9.31 Telford and Telford [2012] FamCA 995 …. 7.20 Tems, In the Marriage of (1990) 100 FLR 472; FLC ¶92-169

…. 8.104 Terry and Mammone [2013] FCCA 1587 …. 5.66 Teves III and Campomayor, In the Marriage of (1994) 18 Fam LR 844; (1995) FLC ¶92-578 …. 4.18, 4.22, 4.62 TF and JF and Children’s Representative [2005] FamCA 394 …. 5.39 Thompson, In the Marriage of (1977) 2 Fam LR 11,649; FLC ¶90-206 …. 4.51 Thompson and Dean [2011] FMCAfam 1074 …. 5.61 Thorne v Kennedy [2017] HCA Trans 54 …. 8.6 Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565 …. 2.22 Ting and Fingal [2013] FamCA 29 …. 2.32, 9.11 Tinto and Dawhurst [2014] FamCAFC 16 …. 5.54 Tipper and Todd [2014] FCCA 1544 …. 5.47 Tirta and Lim [2012] FamCA 63 …. 4.22 Todd (No 2), In the Marriage of (1976) 1 Fam LR 11,186; FLC ¶90-008 …. 4.34, 4.35, 4.36, 4.50, 4.52, 4.62, 9.16 Townsend, In the Marriage of (1994) 18 Fam LR 505; (1995) FLC ¶92-569 …. 8.34, 8.146 Tranmere and Cleaver [2014] FCCA 1827 …. 5.49 Trask and Westlake [2015] FamCAFC 160 …. 8.93 Travis and Weaver [2014] FCCA 1279 …. 5.66 Trenerry, In the Marriage of (1970) 16 FLR 406 …. 7.29 Trent and Trent [2014] FamCA 95 …. 7.73 Trevor and Denton [2017] FamCA 261 …. 10.1 Truman and Clifton [2010] FCWA 91 …. 9.10 Tuck and Tuck [(1981) FLC ¶91-021 …. 6.23

Turnbull, In the Marriage of (1990) 15 Fam LR 81; (1991) FLC ¶92-258 …. 8.125 Turner and Turner [2009] FamCA 876 …. 4.10 Twiner and Field [2009] FamCA 212 …. 5.52 Tyagi and Meares (SSAT Appeal) [2008] FMCAfam 886 …. 6.17 Tye, In the Marriage of (1976) 1 Fam LR 11,235; FLC ¶90-028 …. 4.37, 4.62

U U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; [2002] HCA 36 …. 5.30, 5.45, 5.51

V V and K [2005] FCWA 80 …. 9.14 V and V (1985) 10 Fam LR 151; FLC ¶91-616 …. 2.29 — [2004] FamCA 1081 …. 5.39 Valdez and Frazier (No 2) [2014] FamCAFC 150 …. 5.67 Van Ballekom and Kelly (2005) 34 Fam LR 1; FLC ¶93-233; [2005] FamCA 853 …. 7.24 Van Dongen and Van Dongen (1976) FLC ¶90-084 …. 7.25 Van Rassel v Kroon (1953) 87 CLR 298 …. 8.73 Vanderhum and Doriemus [2007] FamCA 478 …. 5.29 Vartikian and Vartikian (No 2) (1984) FLC ¶91-587 …. 7.39 Vass and Vass [2015] FamCAFC 51 …. 8.76, 8.84 Vassis, Re; Ex parte Leung (1986) 64 ALR 407 …. 2.19 Vaughan and Bele [2011] FamCA 436 …. 9.8, 9.16

Vaughan and Vaughan (1981) FLC ¶91-066 …. 7.39 Vaughn and Douglas [2011] FMCAfam 773 …. 5.56 Vautin, In the Marriage of (1998) 23 Fam LR 627; FLC ¶92827 …. 7.62, 8.98 Venson and Venson (No 2) [2010] FamCA 963 …. 6.12 Vieth and Camkin [2014] FamCA 68 …. 5.3 Vihn and Ngoc [2007] FamCA 181 …. 4.24 Volen and Backstrom [2013] FamCA 40 …. 9.16 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 2.49, 4.31 Vrbetic, In the Marriage of (1987) FLC ¶91-832 …. 8.59

W W, In the Marriage of (1980) 6 Fam LR 538; FLC ¶90-872 …. 7.28, 8.70, 8.78, 8.80 W, Re (1968) QWN 45 …. 3.23, 3.29 W Abuse Allegations; Expert Evidence, Re (2001) FLC ¶93085 …. 5.39 W (Sex abuse: standard of proof), Re (2004) FLC ¶93-192; [2004] FamCA 768 …. 5.39 W and L [2007] FMCAfam 996 …. 4.61 W and S [2006] FamCA 1094 …. 5.44 W and T [1998] FamCA 49 …. 4.14 W and W (1980) FLC ¶90-872 …. 8.18 — (1997) 21 Fam LR 343; FLC ¶92-723 …. 8.61 — (abuse allegations: unacceptable risk)(2005) 34 Fam LR 129; FLC ¶93-235; [2005] FamCA 892 …. 5.39 W and W; R and G (by their next friend P) (Intervener)

(1994) 17 Fam LR 751; FLC ¶92-475 …. 10.74 Wakeford v Ellis (1998) DFC ¶95-202 …. 9.56 Wakim, Re; Ex parte McNally (1999) 198 CLR 511; 24 Fam LR 669 …. 2.26, 2.36, 2.38, 2.51, 3.12, 10.74, 10.85 Waldon and Kipley-Waldon [2013] FamCAFC 108 …. 4.62 Wall, In the Marriage of (2002) 29 Fam LR 1; FLC ¶93-110 …. 8.76 Wall and Mitchell [2012] FamCA 114 …. 9.14 Wallace and Stelzer (2013) 283 FLR 126; 51 Fam LR 115; FLC ¶93-566 …. 9.32 Walls and Robinson (2006) FLC ¶93-251; [2006] FamCA 25 …. 5.44 Walmsley and Walmsley (No 5) [2010] FamCA 1034 …. 8.80 Wang and Gao [2015] FCCA 1861 …. 9.21 Wardman and Hudson, In the Marriage of (1978) 5 Fam LR 889; FLC ¶90-466 …. 8.82 Warner and Cummings [2017] FCCA 432 …. 9.32 Waters and Jurek, In the Marriage of (1995) 20 Fam LR 190; FLC ¶92-635 …. 7.7 Watkins, In the Marriage of (1952) 86 CLR 161 …. 4.41 Watson and Ling [2013] FamCA 57 …. 9.5 Waugh, In the Marriage of (1999) 27 Fam LR 63; (2000) FLC ¶93-052 …. 8.135, 8.140 Way, In the Marriage of (1996) FLC ¶92-702 …. 8.85 Weber, In the Marriage of (1976) FLC ¶90-072 …. 10.85 Weekes and Weekes [2009] FamCA 699 …. 4.10 Weir, In the Marriage of (1992) 16 Fam LR 154; (1993) FLC ¶92-338 …. 8.38, 8.42, 9.21

Weiss and Weiss (SC(NSW), Allen J, 1 December 1971, unreported) …. 7.2 Welch and Abney (No 2) [2015] FamCA 1116 …. 8.68 Wellesley v Duke of Beaufort [1827] EngR 268; (1827) 2 Russ 1; 38 ER 236 …. 5.68 Wentworth v Wentworth (1995) 37 NSWLR 703; [1995] ACL Rep 395 NSW 39 …. 9.14 Wentworth and Wentworth [2013] FamCA 156 …. 5.8 Westlake and Trask (No 2) [2013] FamCA 928 …. 7.19, 8.93 Wheedon and Gomer [2014] FamCAFC 141 …. 5.52 Whelan and Whelan [2010] FamCA 530 …. 10.74 Whitaker, In the Marriage of (1980) 5 Fam LR 769; FLC ¶90813 …. 8.123 White v White [2000] UKHL 54; [2001] 1 All ER 1 …. 8.67, 8.84 White and Tulloch v Tulloch (1995) 19 Fam LR 696; FLC ¶92641 …. 8.76 Whitehall and Warren [2017] FamCA 283 …. 10.1 Whitehead, In the Marriage of (1979) 5 Fam LR 308; FLC ¶90673 …. 8.17, 8.18, 8.20 Whitehouse and Whitehouse (2009) 42 Fam LR 319; FLC ¶93415; [2009] FamCAFC 207 …. 8.27 Whiteley, In the Marriage of (1992) FLC ¶92-304 …. 8.84 Whiterod and Taylor (2006) FLC ¶93-266; [2006] FamCA 433 …. 7.27 Whitford, In the Marriage of (1979) 4 Fam LR 754; FLC ¶90612 …. 6.11, 7.21, 7.25, 8.12, 9.26 Wiggins, In the Marriage of (1976) 1 Fam LR 11,101; FLC ¶90-004 …. 4.42

Williams, In the Marriage of (1985) 10 Fam LR 335; FLC ¶91628 …. 8.17, 8.62 Williams and Williams (1984) FLC ¶91-541 …. 8.18 Williamson, In the Marriage of (1978) 4 Fam LR 355; FLC ¶90-555 …. 6.67, 7.68 Willis, Ex parte (1997) 21 Fam LR 479; FLC ¶92-975 …. 3.22, 3.23, 4.29 Wilmore, In the Marriage of (1988) 12 Fam LR 692; FLC ¶91975 …. 8.59 Wilmoth, In the Marriage of (1981) 6 Fam LR 807; FLC ¶91030 …. 10.48 Wilson, In the Marriage of (1989) 13 Fam LR 205; FLC ¶92033 …. 7.18, 7.22, 7.62, 7.68, 7.74 Wilson and Roberts [2010] FamCA 734 …. 5.19 Wiltcher and Wiltcher [2010] FamCA 369 …. 5.68 Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71 …. 8.34, 8.146 Withall, Richardson and Powles [2013] FCWA 54 …. 5.21 Withers and Bates [2011] FMCAfam 730 …. 5.17 Withers and Russell [2016] FamCA 793 …. 5.61 Wold and Kleppir [2009] FamCA 178 …. 4.15 Wolifson, In the Marriage of (1977) 3 Fam LR 11,627 …. 10.54 WK and SR (1997) 22 Fam LR 592; FLC ¶92-787 …. 5.39 Wollacott and Wollacott [2014] FamCA 5 …. 7.21 Wong and Wong (1976) 2 Fam LR 11,159 …. 7.25 Wood and Moulson [2011] FamCA 751 …. 5.3 Woodhead, In the Marriage of (1997) 23 Fam LR 559; (1998)

FLC ¶92-813 …. 2.19, 2.51 Woolley (No 2), In the Marriage of (1981) 6 Fam LR 577; FLC ¶91-011 …. 7.21, 7.72, 8.18 Wunderwald, In the Marriage of (1992) 15 Fam LR 713; FLC ¶92-313 …. 8.17

Y Yanders and Jacklin [2011] FMCAfam 57 …. 5.19 Yates, In the Marriage of (No 2) (1982) 7 Fam LN N20; FLC ¶91-228 …. 8.20 Yen and Yen (2010) 42 Fam LR 691; [2010] FamCA 1 …. 2.38 Youssef, In the Marriage of (1997) FLC ¶92-722 …. 4.6 Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC ¶92-836 …. 8.120 Yusuf and Burton [2012] FamCA 580 …. 8.113, 8.115

Z Z, Re (1970) 15 FLR 420 …. 3.22, 3.23, 3.29, 4.29 Zabini and Zabini (No 2) [2013] FamCAFC 111 …. 5.3 Zalewski and Zalewski (2005) FLC ¶93-241 …. 8.51 Zammit and Zammit [2009] FamCA 265 …. 5.48 Zamojski and Hale [2011] FMCAfam 647 …. 5.40 Zappacosta, In the Marriage of (1976) 2 Fam LR 11,214; FLC ¶90-089 …. 8.37 Zhin and Zou [2016] FamCA 1072 …. 5.56 Zorbas, In the Marriage of (1990) 14 Fam LR 226; FLC ¶92160 …. 8.17

ZP v PS [1994] HCA 29 …. 5.71 Zubcic, In the Marriage of (1995) FLC ¶92-609 …. 8.17 Zyk, In the Marriage of (1995) 19 Fam LR 797; FLC ¶92-644 …. 8.51, 8.55, 8.73, 8.146

Table of Statutes All references are to paragraphs

Commonwealth Acts Interpretation Act 1901 s 13(2)(d) …. 5.18 s 15AA …. 8.26 Acts Interpretation Amendment Act 1984 …. 3.21 Australian Citizenship Act 2007 …. 2.19 s 12(1) …. 2.51 Australian Passports Act 2005 s 11 …. 5.56 Bankruptcy Act 1966 …. 7.5, 8.24, 8.25, 8.26, 8.106 s 5 …. 8.26 s 35 …. 8.26 s 58 …. 8.26 s 58(1)(a) …. 8.26 Bankruptcy and Family Law Legislation Amendment Act 2005 …. 8.24 Child Support (Assessment) Act 1989 …. 2.48, 5.12, 6.1, 6.2, 6.3, 6.6, 6.8, 6.22, 8.101 Pt 5 …. 6.9 Pt 6 …. 6.10 Pt 6A …. 6.8, 6.13, 6.14

s 3 …. 6.22 s 3(1) …. 6.3 s 4 …. 6.22 s 4(2) …. 6.11 s 4(2)(c) …. 6.8 s 12 …. 6.13 s 12(2AA) …. 6.13 s 19 …. 6.3 s 22 …. 6.3 s 24(1) …. 6.3 s 25 …. 6.3 s 25A …. 6.3 s 29 …. 6.11 s 30(2) …. 6.11 s 34A …. 6.13 s 52 …. 6.13 s 55C …. 6.9 s 58 …. 6.11 s 58A …. 6.13 s 60 …. 6.13 s 63A …. 6.13 s 64A …. 6.13 s 73A …. 6.11 s 74 …. 6.13 s 74A …. 6.11 s 75 …. 6.13 s 80C …. 6.10

s 80CA …. 6.11 s 80D(1)(a) …. 6.10 s 80D(1)(b) …. 6.10 s 80E …. 6.10 s 80F(1) …. 6.11 s 98C …. 6.13 s 98E …. 6.13 s 98H(5) …. 6.13 s 98K …. 6.13 s 98L …. 6.13 s 106 …. 6.11 s 106A …. 6.11, 6.22 s 107 …. 5.17, 6.11, 6.22, 6.23 s 112 …. 6.19 s 116 …. 6.14 s 117 …. 6.14 s 117(2) …. 6.13, 6.15, 6.22 s 117(2)(c) …. 6.19 s 117(2)(c)(ia) …. 6.19 s 117(3) …. 6.16 s 117(4) …. 6.15, 6.17 s 117(5) …. 6.15, 6.17, 6.19 s 123(3) …. 6.19 s 136 …. 6.11, 6.12 s 136(2) …. 6.11 s 136(2)(a) …. 6.11 s 136(2)(b) …. 6.11

s 136(2)(c) …. 6.11 s 136(2)(c)(ii) …. 6.11 s 136(2)(d) …. 6.11, 6.12 s 139 …. 6.11 s 143 …. 6.11, 6.21, 6.22 s 143(3B) …. 6.22 s 160 …. 6.13 Sch 1 …. 6.9 Child Support (Registration and Collection) Act 1988 …. 2.48 Pt VII …. 6.13 Pt VIIA …. 6.13 s 80 …. 6.13 s 80(4) …. 6.13 s 81 …. 6.13 s 82 …. 6.13 s 83 …. 6.13 s 84 …. 6.13 s 85 …. 6.13 s 86 …. 6.13 s 88 …. 6.13 s 89 …. 6.13 s 89(2) …. 6.13 s 90 …. 6.13 s 94 …. 6.13 s 95 …. 6.13 s 96 …. 6.13 s 102 …. 6.13

s 103 …. 6.13 ss 103A–R …. 6.13 s 103C …. 6.13 s 103D …. 6.13 s 103E …. 6.13 s 103F …. 6.13 s 103S …. 6.13 s 103VA …. 6.13 s 103W …. 6.13 s 103Z(1) …. 6.13 s 103Z(2) …. 6.13 s 110B …. 6.11 s 111C …. 6.11, 6.22 s 111C(3) …. 6.11 s 111C(4) …. 6.11 s 111C(5) …. 6.11 Commonwealth of Australia Constitution Act 1900 …. 1.1, 2.1, 2.3, 2.4, 2.6, 2.11, 2.12, 2.13, 2.14, 2.24, 2.25, 2.26, 2.27, 2.28, 2.31, 3.7, 3.12, 5.39, 7.6 Ch III …. 2.46, 10.85 s 41 …. 1.1 s 51 …. 2.1, 2.4, 2.7, 2.9, 9.1 s 51(iv) …. 2.6 s 51(xxi) …. 2.23, 2.25, 2.27, 2.28, 2.29, 2.51, 3.9, 5.68, 9.1 s 51(xxii) …. 2.9, 2.15, 2.16, 2.17, 2.20, 2.21, 2.22, 2.51, 5.68, 9.1 s 51(xxix) …. 2.6, 2.8, 2.51

s 51(xxx) …. 2.6 s 51(xxxi) …. 1.1, 8.146 s 51(xxxvii) …. 2.30, 2.51, 9.5 s 51(xxxix) …. 2.9, 2.10 s 52 …. 2.6 s 71 …. 2.11 s 80 …. 1.1 s 92 …. 1.1 s 106 …. 2.3 s 107 …. 2.4 s 109 …. 2.6, 2.7 s 116 …. 1.1 s 117 …. 1.1 s 122 …. 9.5 Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 …. 3.29 Criminal Code Act 1995 …. 3.29 s 270.7A …. 10.5 s 270.7B …. 10.5 Education and Care Services National Law Act 2010 …. 10.13 Evidence Act 1995 …. 8.68 Pt 4.1 s 140 …. 8.68 s 140 …. 5.39, 9.10 s 140(2) …. 4.22 Family Law Act 1975 …. 1.15, 2.1, 2.3, 2.9, 2.16, 2.18, 2.21, 2.26, 2.29, 2.30, 2.31, 2.32, 2.37, 2.38, 2.39, 2.40, 2.41, 2.42, 2.43, 2.44, 2.45, 2.48, 2.49, 2.50, 2.51, 3.9, 3.10, 3.18, 4.2, 4.3, 4.11, 4.15, 4.17, 4.30, 4.32, 4.33, 4.43, 4.48,

4.53, 4.56, 4.59, 4.62, 5.3, 5.4, 5.5, 5.6, 5.9, 5.17, 5.18, 5.19, 5.20, 5.22, 5.24, 5.25, 5.29, 5.34, 5.35, 5.36, 5.40, 5.45, 5.48, 5.51, 5.52, 5.55, 5.56, 5.68, 5.69, 6.1, 6.3, 6.6, 7.1, 7.3, 7.4, 7.5, 7.9, 7.10, 7.27, 7.29, 7.39, 7.41, 7.45, 7.56, 7.57, 7.68, 7.71, 7.73, 8.5, 8.13, 8.16, 8.24, 8.25, 8.26, 8.28, 8.29, 8.30, 8.33, 8.61, 8.68, 8.69, 8.79, 8.84, 8.89, 8.92, 8.95, 8.101, 8.102, 8.103, 8.104, 8.115, 8.123, 8.142, 8.143, 9.3, 9.5, 9.6, 9.10, 9.14, 9.15, 9.16, 9.17, 9.18, 9.28, 9.36, 9.37, 9.56, 10.14, 10.15, 10.16, 10.41, 10.42, 10.43, 10.44, 10.45, 10.46, 10.48, 10.56, 10.58, 10.68, 10.69, 10.75 Pt II …. 4.53 Pt VI …. 2.16, 4.33 Pt VII …. 2.51, 5.1, 5.4, 5.6, 5.7, 5.8, 5.9, 5.19, 5.21, 5.23, 5.28, 5.29, 5.30, 5.32, 5.39, 5.44, 5.51, 5.68, 5.69, 5.73, 10.42, 10.45 Pt VII Div 7 …. 6.3 Pt VII Div 11 …. 5.38 Pt VII Div 12A …. 5.52 Pt VII Subdiv F …. 5.67 Pt VII s 60B(4) …. 5.3 Pt VIII …. 2.49, 7.8, 7.10, 7.14, 7.31, 7.59, 7.63, 7.64, 9.5, 9.8, 9.23, 9.24, 9.33 Pt VIII s 74(1) …. 7.18 Pt VIIIAA …. 8.25, 8.143, 8.146, 9.5 Pt VIIIA …. 6.10, 8.5, 8.6, 9.28, 9.30, 9.33 Pt VIIIAB …. 7.8, 7.52, 7.60, 8.24, 9.5, 9.8, 9.10, 9.15, 9.23, 9.26, 9.27, 9.28, 9.30, 9.31, 9.56 Pt VIIIAB Div 4 …. 9.28

Pt VIIIB …. 8.92, 8.93, 8.94, 9.5, 9.27, 9.28 Pt XIIIAA Div 4 …. 5.73 Pt XIIIA …. 7.59 Pt XIIIB …. 8.135 s 4 …. 5.17, 5.30, 5.33, 5.36, 5.71, 8.16, 8.18, 8.94, 9.5, 10.14 s 4(1) …. 2.51, 4.6, 4.30, 5.52, 7.6, 7.74, 8.13, 8.16, 8.17, 8.76, 8.94, 8.146, 9.8, 9.15, 9.56, 10.44 s 4(1)(a) …. 2.19 s 4(1)(a)(i) …. 2.51, 4.62 s 4(1)(a)(ii) …. 4.6 s 4(1)(b)(i) …. 4.15 s 4(1)(c) …. 7.11 s 4(1)(ca) …. 8.16, 8.17, 8.146 s 4(1)(ca)(i) …. 8.14 s 4(1)(e) …. 10.46 s 4(2) …. 7.14, 8.13 s 4AA …. 9.3, 9.5, 9.8, 9.10, 9.14, 9.56 s 4AA(1) …. 5.18 s 4AA(2) …. 5.18 s 4AA(2)–(4) …. 9.8 s 4AA(5)(b) …. 9.8, 9.10 s 4AA(6) …. 9.8 s 4AB …. 5.7, 5.36, 5.37, 10.14 s 4AB(1) …. 5.36 s 4AB(2) …. 5.36, 5.37 s 4AB(3) …. 5.36

s 4AB(4) …. 5.36, 5.37 s 6 …. 3.18, 4.17 s 8 …. 4.31 s 14(6) …. 4.56 s 31(1)(a) …. 2.51 s 31(1)(aa) …. 9.5, 9.31 s 33 …. 10.75 s 34 …. 9.31 s 39 …. 4.31, 8.28 s 39(3) …. 2.19, 2.51, 4.62 s 39(3)(a) …. 2.51 s 39(3)(b) …. 2.51 s 39(3)(c) …. 2.51 s 39(4) …. 8.11 s 39(4)(a) …. 7.11, 7.74 s 39(4)(b) …. 4.6 s 39A …. 9.5 s 39B …. 9.5 s 40(3) …. 2.40 s 41 …. 2.51 s 43 …. 4.2, 7.57, 8.30, 8.49, 10.42 s 43(1) …. 10.42 s 43(1)(a) …. 2.24, 2.51, 3.11, 3.29, 4.21, 4.44 s 43(1)(ca) …. 10.43 s 44(1A) …. 4.6 s 44(1B) …. 4.53, 4.54, 4.55, 4.56, 4.62 s 44(1C) …. 4.53, 4.54, 4.55, 4.56, 4.62

s 44(3) …. 7.7, 7.11, 7.14, 7.74, 8.12, 8.102 s 44(3A) …. 8.12 s 44(4) …. 8.12 s 44(4)(a) …. 8.12 s 44(4)(b) …. 7.11 s 44(5) …. 5.18, 9.25, 9.26, 9.56 s 44(6) …. 9.25, 9.26, 9.56 s 46 …. 2.50 s 48 …. 4.32, 4.34, 4.37, 4.53, 4.62 s 48(1) …. 4.3, 4.31, 4.32 s 48(2) …. 4.3, 4.32, 4.33, 4.34, 4.36, 4.37, 4.40, 4.41, 4.44, 4.47, 4.48, 4.52, 4.62, 5.18 s 48(3) …. 4.32, 4.51, 4.52, 4.62 s 49 …. 4.34 s 49(1) …. 4.3 s 49(2) …. 4.33, 4.38, 4.43 s 50 …. 4.50, 4.51, 9.14 s 50(1) …. 4.48, 4.49 s 51 …. 4.23, 4.24 s 55 …. 4.60 s 55(1) …. 2.17 s 55A …. 2.17, 4.57, 4.58, 4.60 s 55A(1) …. 2.17 s 55A(1)(b)(i) …. 4.57, 4.59 s 55A(1)(b)(ii) …. 4.57 s 55A(3) …. 4.58 s 57 …. 4.61

s 58 …. 4.61, 8.24 s 59 …. 4.60 s 59A …. 8.24 s 60B …. 5.4, 5.9, 5.30, 5.32, 5.39, 5.44, 5.52, 5.60, 5.61, 5.73 s 60B(1) …. 5.19, 5.30, 5.37 s 60B(1)(a) …. 5.39 s 60B(1)(b) …. 5.39 s 60B(2) …. 5.19, 5.30 s 60B(2)(e) …. 5.61 s 60B(3) …. 5.61 s 60B(4) …. 5.6, 5.7 s 60CA …. 5.8, 5.10, 5.19, 5.30, 5.31, 5.39, 5.60, 5.73 s 60CC …. 5.8, 5.13, 5.18, 5.21, 5.28, 5.30, 5.32, 5.33, 5.35, 5.37, 5.39, 5.40, 5.47, 5.52, 5.60, 5.71, 5.73, 10.43 s 60CC(2) …. 5.19, 5.30, 5.35 s 60CC(2)(a) …. 5.21, 5.44, 5.53 s 60CC(2)(b) …. 5.30, 5.36, 5.38, 5.40 s 60CC(2)(d) …. 5.52 s 60CC(2)(e) …. 5.52 s 60CC(2)(h) …. 5.44, 5.61 s 60CC(2A) …. 5.35 s 60CC(3) …. 5.19, 5.30, 5.44, 5.45 s 60CC(3)(a) …. 5.45, 5.73 s 60CC(3)(b) …. 5.48 s 60CC(3)(c) …. 5.49 s 60CC(3)(ca) …. 5.50

s 60CC(3)(d) …. 5.51 s 60CC(3)(d)(i) …. 5.73 s 60CC(3)(e) …. 5.55 s 60CC(3)(f) …. 5.56 s 60CC(3)(f)(ii) …. 5.73 s 60CC(3)(g) …. 5.30, 5.59 s 60CC(3)(h) …. 5.61 s 60CC(3)(h)(i) …. 6.73 s 60CC(3)(h)(ii) …. 6.73 s 60CC(3)(i) …. 5.62 s 60CC(3)(j) …. 5.63 s 60CC(3)(k) …. 5.30, 5.40, 5.63 s 60CC(3)(l) …. 5.64 s 60CC(3)(m) …. 5.52, 5.64 s 60CC(4) …. 5.30, 5.51, 5.73 s 60CC(4A) …. 5.30, 5.51 s 60CC(6) …. 5.30, 5.61, 6.73 s 60CD(2) …. 5.46 s 60CE …. 5.45 s 60CF …. 5.41 s 60CF(1) …. 5.41 s 60CF(2) …. 5.41 s 60CF(3) …. 5.41 s 60CG …. 5.42 s 60CG(1) …. 10.44 s 60CG(1)(b) …. 10.44 s 60CG(2) …. 5.42, 10.44

s 60D …. 5.39 s 60DAA(5) …. 5.52 s 60F …. 7.17, 10.45 s 60F(1)(b) …. 5.22 s 60G …. 2.50 s 60H …. 5.18, 5.19, 5.22, 7.17 s 60H(1) …. 5.22 s 60H(1)(d) …. 5.19, 5.22 s 60HB …. 5.22 s 60I …. 5.14, 5.52, 5.73 s 60I(8) …. 5.14 s 60I(9) …. 5.14 s 61B …. 5.24, 5.52 s 61C …. 5.24, 5.52 s 61C(1) …. 5.24, 5.26, 5.30, 5.68, 5.73 s 61C(2) …. 5.24 s 61C(3) …. 5.26 s 61D …. 5.52 s 61D(2) …. 5.26 s 61D(3) …. 5.52 s 61DA …. 5.8, 5.23, 5.28, 5.30, 5.32, 5.39, 5.52 s 61DA(1) …. 5.30, 5.73 s 61DA(2) …. 5.30, 5.38, 5.73 s 61DA(3) …. 5.28, 5.30, 5.73 s 61DA(4) …. 5.30, 5.73 s 61F …. 5.61 s 62G(2) …. 5.46

s 63B …. 5.10 s 63B(e) …. 5.10 s 63C …. 5.12 s 63C(1)(a) …. 5.12 s 63C(1)(b) …. 5.12 s 63C(1)(ba) …. 5.12 s 63C(1)(bb) …. 5.12 s 63C(2) …. 5.11 s 63C(2)(d) …. 5.11 s 63C(2)(g) …. 5.11 s 63C(2)(h) …. 5.11 s 63C(2A) …. 5.12 s 63C(2B) …. 5.12 s 63DA …. 5.11 s 63DA(2) …. 5.11, 5.73 s 63DA(2)(a) …. 5.11, 5.73 s 63DA(2)(b) …. 5.11, 5.73 s 63DA(2)(c) …. 5.11, 5.73 s 63DA(2)(d) …. 5.11 s 63DA(2)(e) …. 5.11 s 63DA(2)(f) …. 5.11 s 63DA(2)(h) …. 5.11 s 63DA(2)(g) …. 5.11 s 63DA(5) …. 5.11 s 63DB …. 5.11 s 64(1) …. 5.39 s 64(1)(a) …. 5.39

s 64B(2) …. 5.2 s 64B(2)(i) …. 5.68 s 64C …. 5.45 s 64D …. 5.11 s 65AA …. 5.31, 5.44 s 65C …. 4.22, 5.2, 5.15, 5.16, 5.19, 5.45, 5.68, 5.73 s 65C(a) …. 5.16 s 65C(b) …. 5.16 s 65C(ba) …. 5.16 s 65C(c) …. 5.16, 5.22 s 65D …. 5.30, 5.32, 5.73 s 65D(1) …. 5.15 s 65DAA …. 5.5, 5.23, 5.30, 5.52 s 65DAA(1) …. 5.30, 5.52, 5.73 s 65DAA(1)(a) …. 5.52 s 65DAA(1)(b) …. 5.30, 5.39, 5.52 s 65DAA(1)(c) …. 5.73 s 65DAA(2) …. 5.30, 5.73 s 65DAA(2)(a) …. 5.52 s 65DAA(2)(b) …. 5.5 s 65DAA(2)(d) …. 5.30, 5.39 s 65DAA(3) …. 5.8, 5.30, 5.73 s 65DAA(4) …. 5.30, 5.73 s 65DAA(5) …. 5.30, 5.52, 5.73 s 65DAB …. 5.32 s 65DAC …. 5.52 s 65F …. 5.14

s 65G …. 5.22 s 66C …. 6.3 s 66D(1) …. 6.3 s 66J(3)(b)(ii) …. 6.23 s 66L …. 6.23 s 66L(1) …. 6.23 s 66M …. 6.3 s 66M(1) …. 6.3 s 66N …. 6.3 s 66VA …. 6.23 s 67B …. 6.20 s 67Q(a)(1) …. 5.56 s 67Z …. 5.39 s 67ZBB …. 5.39 s 67ZC …. 5.68 s 67ZC(2) …. 5.68 s 67ZD …. 5.69 s 68B …. 5.7, 5.30, 5.61, 5.68, 10.43, 10.45, 10.57 s 68B(1) …. 5.68, 10.45, 10.46 s 68B(2) …. 10.45 s 68C …. 5.7, 5.61, 10.49 s 68F(2)(g) …. 5.40 s 68F(2)(i) …. 5.40 s 68L …. 5.46, 5.47 s 68P(2) …. 10.69 s 68P(2)(a) …. 5.40 s 68P(2)(b) …. 5.40

s 68P(2)(c) …. 5.40 s 68P(2)(d) …. 5.40 s 68P(3) …. 10.69 s 68Q(1) …. 10.69 s 68Q(2) …. 10.69 s 69E …. 2.51, 5.71 s 69E(1)(a)–(c) …. 2.51 s 69P …. 5.17 s 69Q …. 5.17 s 69R …. 5.17 s 69U …. 5.17 s 69V …. 6.22 ss 69V–69ZA …. 5.17 s 69VA …. 6.22 s 69W …. 6.22 s 69Z(3) …. 6.22 s 69ZE(1) …. 10.45 s 69ZE(2) …. 10.45 s 69ZG …. 10.45 s 69ZT(3) …. 5.39 s 69ZV …. 5.39 s 69ZW …. 5.39 s 70NAC …. 5.67 s 70NAE …. 5.67 s 70NBA …. 5.66 s 70NDA …. 5.67 s 71 …. 7.7, 7.11

s 71A …. 7.59, 8.5 s 72 …. 7.8, 7.9, 7.10, 7.12, 7.13, 7.14, 7.15, 7.16, 7.19, 7.20, 7.22, 7.26, 7.30, 7.31, 7.32, 7.53, 7.65, 7.74, 8.47, 8.97, 8.122, 8.146, 9.23 s 72(1) …. 7.10, 7.17, 7.19 s 72(1)(a) …. 7.17 s 72(1)(b) …. 7.20, 7.74 s 72(2) …. 7.12 s 74 …. 7.8, 7.13, 7.14, 7.18, 7.19, 7.22, 7.37, 7.39, 7.53, 7.61, 7.62, 7.64, 7.65, 7.68, 7.74, 7.74, 8.47, 8.97, 8.98, 8.100, 8.146, 9.23 s 74(1) …. 7.10 s 75 …. 7.8, 7.14, 7.65, 8.97, 8.122, 9.23, 9.25 s 75(1) …. 7.10, 7.14, 7.22 s 75(2) …. 2.38, 7.3, 7.8, 7.10, 7.13, 7.14, 7.16, 7.17, 7.19, 7.22, 7.23, 7.24, 7.26, 7.30, 7.51, 7.52, 7.53, 7.56, 7.67, 7.73, 7.74, 8.24, 8.28, 8.30, 8.34, 8.36, 8.37, 8.42, 8.43, 8.49, 8.54, 8.64, 8.65, 8.67, 8.74, 8.76, 8.78, 8.80, 8.84, 8.85, 8.86, 8.87, 8.88, 8.89, 8.92, 8.93, 8.94, 8.97, 8.98, 8.99, 8.146, 9.5, 9.23 s 75(2)(a)–(n) …. 7.56 s 75(2)(b) …. 7.10, 7.24, 7.25, 7.30, 7.74, 8.20, 8.88, 8.89, 8.90, 8.92, 8.146 s 75(2)(c) …. 7.31, 7.32, 7.46, 7.74, 8.146 s 75(2)(d) …. 7.33, 7.34, 7.53, 7.74 s 75(2)(e) …. 7.32, 7.34, 7.36, 8.146 s 75(2)(f) …. 7.37, 7.38, 7.74, 8.89, 8.90, 8.92, 8.146 s 75(2)(g) …. 7.39, 7.74 s 75(2)(h) …. 7.40, 7.41, 8.94, 8.146

s 75(2)(ha) …. 7.42, 8.24 s 75(2)(j) …. 7.40, 7.43, 8.92, 8.146 s 75(2)(k) …. 7.40, 7.43, 7.44, 8.146 s 75(2)(l) …. 7.46 s 75(2)(m) …. 7.47, 7.49, 7.68, 7.71 s 75(2)(n) …. 7.19, 7.50, 7.51, 7.74 s 75(2)(naa) …. 7.52 s 75(2)(na) …. 7.53 s 75(2)(o) …. 2.38, 7.10, 7.54, 7.55, 7.56, 7.57, 7.58, 7.74, 8.42, 8.65, 8.83, 8.89, 8.90, 8.94 s 75(2)(p) …. 7.59 s 75(2)(q) …. 7.60 s 75(3) …. 7.37, 7.37, 7.61, 7.74 s 75(3)–(4) …. 7.23, 7.61 s 77 …. 7.8, 7.66, 7.67, 7.74, 9.23 s 77A …. 7.74, 9.23 s 78 …. 7.63, 8.21, 8.23, 8.26, 8.27, 8.32, 8.38, 8.122, 9.5 s 78(1) …. 8.21, 8.22, 8.23 s 78(2) …. 8.22 s 79 …. 2.37, 2.38, 2.49, 7.14, 7.22, 7.28, 7.43, 7.50, 7.51, 7.53, 7.54, 7.64, 7.65, 7.68, 7.74, 8.1, 8.5, 8.6, 8.7, 8.8, 8.10, 8.12, 8.13, 8.15, 8.16, 8.17, 8.18, 8.19, 8.23, 8.24, 8.25, 8.26, 8.27, 8.28, 8.29, 8.30, 8.31, 8.32, 8.33, 8.34, 8.37, 8.38, 8.39, 8.42, 8.43, 8.46, 8.47, 8.49, 8.51, 8.52, 8.54, 8.59, 8.61, 8.63, 8.64, 8.67, 8.68, 8.69, 8.74, 8.78, 8.84, 8.85, 8.86, 8.87, 8.88, 8.89, 8.90, 8.92, 8.93, 8.94, 8.97, 8.98, 8.99, 8.100, 8.102, 8.113, 8.114, 8.115, 8.117, 8.119, 8.122, 8.123, 8.125, 8.128, 8.134, 8.135,

8.137, 8.138, 8.139, 8.143, 8.144, 8.145, 8.146, 9.5, 9.19, 9.45, 10.74, 10.85 s 79(1) …. 7.42, 7.53, 8.29, 8.30, 8.32, 8.33, 8.37, 8.39, 8.40, 8.49, 8.83, 8.98, 8.99, 8.146 s 79(1)(a) …. 8.18, 8.34, 8.114, 8.146 s 79(2) …. 7.53, 7.57, 8.10, 8.28, 8.29, 8.30, 8.34, 8.35, 8.37, 8.49, 8.52, 8.65, 8.69, 8.85, 8.98, 8.99, 8.102, 8.146 s 79(4) …. 8.28, 8.29, 8.30, 8.34, 8.36, 8.37, 8.49, 8.52, 8.65, 8.84, 8.87, 8.98, 8.100, 8.146, 10.85 s 79(4)(a) …. 8.28, 8.34, 8.49, 8.53, 8.54, 8.62, 8.72, 8.78, 8.81, 8.98, 8.146 s 79(4)(a)–(c) …. 7.51, 8.30, 8.97, 8.99, 8.146 s 79(4)(b) …. 8.28, 8.34, 8.62, 8.70, 8.71, 8.72, 8.78, 8.81, 8.146 s 79(4)(c) …. 8.28, 8.34, 8.62, 8.68, 8.78, 8.79, 8.98, 8.146 s 79(4)(d) …. 7.50, 8.28, 8.30, 8.34, 8.85, 8.146 s 79(4)(d)–(e) …. 7.51 s 79(4)(d)–(g) …. 8.31, 8.97, 8.146 s 79(4)(e) …. 8.20, 8.28, 8.30, 8.34, 8.86, 8.87, 8.90, 8.92, 8.98, 8.99, 8.146 s 79(4)(f) …. 8.30, 8.34, 8.100 s 79(4)(g) …. 8.28, 8.30, 8.34, 8.101 s 79(5) …. 8.92, 8.102, 8.104 s 79(6) …. 8.92, 8.103 s 79(7) …. 8.104 s 79(8) …. 8.28, 8.105 s 79(8)(b) …. 8.28

s 79(9) …. 8.106 s 79(10) …. 8.107 s 79(10)(aa) …. 8.109 s 79(10A) …. 8.108 s 79(10B) …. 8.109 s 79(11) …. 8.26, 8.110 s 79(12) …. 8.26, 8.111 s 79(13) …. 8.26, 8.111 s 79(14) …. 8.112 s 79(15) …. 8.112 s 79(16) …. 8.112 s 79A …. 8.24, 8.25, 8.42, 8.47, 8.102, 8.114, 8.115, 8.116, 8.134, 9.5 s 79A(1) …. 8.26, 8.113, 8.116 s 79A(1)(b) …. 8.115 s 79A(1)(c) …. 8.116 s 79A(1)(d) …. 8.117, 8.118 s 79A(5) …. 8.26 s 79A(6) …. 8.26 ss 79B–79E …. 9.5 s 79F …. 9.5 s 79G …. 9.5 s 79H …. 9.5 s 79J …. 9.5 s 80 …. 7.14, 7.50, 7.67, 7.74, 8.120, 8.121, 8.142, 9.5 s 80(1) …. 7.39, 8.120 s 80(1)(a) …. 8.146

s 80(1)(b) …. 8.146 s 80(1)(ba) …. 7.18 s 80(1)(h) …. 7.68, 8.47 s 80(1)(j) …. 8.119 s 81 …. 7.8, 7.50, 7.63, 7.64, 7.65, 7.74, 8.10, 8.12, 8.30, 8.49, 8.102, 8.122, 8.146, 9.5 s 82 …. 7.8, 9.23 s 82(1) …. 7.69, 7.74 s 82(2) …. 7.70, 7.74 s 82(4) …. 7.71 s 82(6) …. 7.71 s 82(7) …. 7.71 s 82(8) …. 7.69 s 83 …. 7.8, 7.65, 7.73, 9.23 s 83(1)(c) …. 7.10 s 83(1A)(a) …. 7.73 s 83(1A)(b) …. 7.73 s 85 …. 8.102, 8.125, 8.128 s 85(1) …. 8.127 s 85(3) …. 8.128 s 85A …. 8.123 s 87 …. 5.30, 7.74 s 90 …. 9.10 s 90A …. 9.28 s 90AE …. 8.144, 8.145 s 90AF(1)–(2) …. 8.145 s 90AF(3) …. 8.145

s 90AG …. 8.146 s 90AH …. 8.146 s 90AI …. 8.146 s 90AJ …. 8.146 s 90AK …. 8.146 s 90B …. 8.5, 8.6, 9.28, 9.30 s 90C …. 8.5, 8.6, 9.28 s 90D …. 8.5, 9.28 s 90DA …. 9.28 s 90DB …. 9.28 s 90E …. 9.28 s 90F …. 8.6, 9.28 s 90G …. 8.6, 9.28, 9.30 s 90H …. 9.28 s 90J …. 9.28 s 90K …. 8.6, 9.28 s 90K(1)(aa) …. 9.28 s 90K(1)(b) …. 8.6 s 90K(1)(c) …. 8.6 s 90K(1)(d) …. 8.6 s 90K(1)(e) …. 8.6 s 90KA …. 8.6, 9.28 s 90MC …. 8.17, 8.146 s 90MC(1) …. 8.94 s 90MD …. 9.27 s 90MS …. 8.94 s 90MT …. 8.92, 8.93, 8.115

s 90SL …. 8.109 s 90SM …. 8.109 s 90RB …. 9.14 s 90RB(3)(i) …. 9.14 s 90RC …. 9.6 s 90RC(3) …. 9.14, 9.19, 9.56 s 90RD …. 9.9, 9.10, 9.11, 9.13 s 90RD(1) …. 9.10 s 90RD(2) …. 9.10 s 90RE …. 9.6, 9.10 s 90RF …. 9.6, 9.10 s 90RG …. 9.10, 9.18 s 90RH …. 9.10 s 90SB …. 9.10, 9.11, 9.14, 9.24, 9.25, 9.56 s 90SB(1)(a) …. 9.10 s 90SB(1)(b) …. 9.10 s 90SB(1)(b)(ii) …. 9.56 s 90SC …. 9.8 s 90SD …. 9.17, 9.24, 9.25, 9.56 s 90SE …. 9.23, 9.24 s 90SF …. 9.23, 9.24, 9.25 s 90SF(1) …. 9.23 s 90SF(3) …. 9.5, 9.23 s 90SF(4) …. 9.25 s 90SG …. 9.23 s 90SH …. 9.23 s 90SI …. 9.23

s 90SJ …. 9.23 s 90SK …. 9.11, 9.17, 9.56 s 90SL …. 9.5, 9.10, 9.56 s 90SM …. 9.5, 9.14, 9.22, 9.27, 9.34, 9.56 s 90SM(3) …. 9.20, 9.56 s 90SM(4)(a) …. 9.14, 9.19, 9.56 s 90SM(4)(b) …. 9.14, 9.19, 9.56 s 90SM(4)(c) …. 9.14, 9.19, 9.56 s 90SM(8) …. 9.5 s 90SM(10) …. 9.34 s 90SM(14) …. 9.34 s 90SM(15) …. 9.34 s 90SM(17) …. 9.34 s 90SN …. 9.5 s 90SO …. 9.5 s 90SP …. 9.5 s 90SQ …. 9.5 s 90SR …. 9.5 s 90SS …. 9.5, 9.11 s 90ST …. 9.5, 9.35 s 90TA …. 9.5 s 90UA …. 9.28 s 90UB …. 9.28 ss 90UB–UD …. 9.56 s 90UC …. 9.28, 9.30, 9.31 s 90UD …. 9.28 s 90UE …. 9.28

s 90UF …. 9.28 s 90UG …. 9.28 s 90UH …. 9.28 s 90UI …. 9.28 s 90UJ …. 9.28, 9.30, 9.32, 9.33 s 90UJ(1A)(c) …. 9.32 s 90UK …. 9.28 s 90UL …. 9.28 s 90UM …. 9.28, 9.33 s 90UM(1)(d) …. 9.28 s 90UM(1)(e) …. 9.30 s 90UM(1)(h) …. 9.30 s 90UM(5) …. 9.32 s 90UN …. 9.28 ss 90VA–VD …. 9.5 s 90MA …. 9.27 s 90MC …. 9.27 s 90MD …. 9.27 s 90MHA …. 9.27 s 90MP(7)–(12) …. 9.27 s 90MX …. 9.27 s 91B …. 5.56 s 92 …. 8.23 s 93 …. 4.62 s 94 …. 4.60 s 94AA …. 8.37 s 97(2) …. 5.68

s 102QB(2)(b) …. 5.16 s 104 …. 8.12 s 106B …. 8.102, 8.123, 8.124, 8.125, 8.127, 8.128, 8.130, 8.146, 9.28 s 106B(1) …. 8.125, 8.146 s 106B(3) …. 8.146 s 106B(5) …. 8.125 s 112AP …. 8.135 s 112AP(1)(b) …. 8.135 s 113 …. 4.15 s 114 …. 8.16, 8.128, 8.131, 8.133, 8.142, 8.143, 8.145, 10.46, 10.50, 10.57, 10.69 s 114(1) …. 8.132, 8.133, 8.135, 8.137, 8.146, 10.46, 10.48, 10.55 s 114(1)(a) …. 10.47, 10.48 s 114(1)(b) …. 10.49 s 114(1)(c) …. 10.49 s 114(1)(f) …. 10.50 s 114(1)(e) …. 8.135 s 114(2A) …. 9.11, 10.50 s 114(2A)(a) …. 10.50 s 114(2A)(b) …. 10.49 s 114(3) …. 8.122, 8.132, 8.135, 8.136, 8.145, 9.11 s 114AA …. 10.49 s 114AA(3)(a)(ii) …. 10.49 s 114AA(7) …. 10.49 s 114AB …. 10.46 s 114AB(1) …. 10.57, 10.69

s 114AB(2) …. 10.57 s 114B(1) …. 1.14 s 114B(2)(a) …. 1.14 s 116 …. 8.26 s 116(2) …. 8.26 s 116(2)(d)(iii)(A) …. 8.26 s 116(2)(q) …. 8.24 s 116(2)(r) …. 8.24 s 118 …. 10.48 s 119 …. 2.38, 6.21, 10.71, 10.73 s 120 …. 2.38, 6.21 s 121 …. 10.56 s 121(1) …. 10.56 Sch 1 …. 8.6 Sch 2 …. 8.6 Family Law Amendment Act 1983 …. 8.79, 8.102, 8.103, 8.104 Family Law Amendment Act 1987 …. 2.30, 2.51, 5.68, 7.37 Family Law Amendment Act 2000 …. 8.5 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 …. 2.31, 2.32, 2.45, 3.9, 3.10, 9.5 s 86A …. 9.16 s 86A(7) …. 9.16 Family Law Amendment (Shared Parental Responsibility) Act 2006 …. 2.45, 5.4, 5.5, 5.6, 5.20, 5.23, 5.29, 5.30, 5.44, 5.73 Family Law (Child Abduction Convention) Regulations 1986

…. 5.71 reg 16 …. 5.71 reg 16(3) …. 5.72 reg 16(3)(b) …. 5.72 Family Law Legislation Amendment Act 2005 …. 7.5 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 …. 5.4, 5.6, 5.36, 10.13, 10.41, 10.42 Family Law Legislation Amendment (Superannuation) Act 2001 …. 8.17 Family Law Reform Act 1995 …. 2.45, 5.4, 5.38, 5.39, 5.68, 10.42 Family Law Regulations 1984 reg 12CAA …. 5.22 Family Law Rules 2004 …. 5.58, 7.5, 8.24, 8.41, 8.42 Ch 13 …. 9.21 O 17 r 3 …. 7.27 Pt 13.3 …. 9.21 Pt 15.5 …. 8.44 Pt 24.1 …. 9.11 r 1.05 …. 8.7 r 6.02 …. 8.25 r 6.17 …. 8.25 r 10.15 …. 5.13 r 10.15(1)(b) …. 8.4 r 11.02(2) …. 5.58 r 11.03 …. 5.56 r 12.02 …. 8.41

r 12.03 …. 8.41, 8.106 r 12.05 …. 8.41 r 12.06 …. 8.41 r 12.07 …. 8.106 r 15.60 …. 8.44 rr 15.65–15.67 …. 8.44 r 13.01 …. 8.41 r 13.02 …. 8.41 r 13.03 …. 8.41 r 13.04 …. 8.41 r 13.05 …. 8.41 r 13.06 …. 8.41 r 13.07 …. 8.41 r 13.12 …. 9.21 r 15.54(2)(c) …. 8.44 Sch 1 …. 8.7 Federal Circuit Court of Australia Act 1999 …. 2.47 s 33B …. 2.48 s 39 …. 2.48 Federal Circuit Court Rules 2001 …. 9.21 r 3.05 …. 6.11, 6.22 r 25A.06 …. 6.11 Federal Magistrates Act 1999 …. 2.46 s 3 …. 2.46 Federal Magistrates Court Rule r 25A.06(1) …. 6.22 Human Rights (Parliamentary Scrutiny) Act 2010 …. 10.13

Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 2.33, 10.74, 10.85 s 79 …. 2.36 Marriage Act 1961 …. 2.24, 2.27, 2.39, 2.43, 2.48, 3.4, 3.5, 3.7, 3.9, 3.11, 3.17, 3.25, 3.29, 4.10, 4.15, 4.16, 4.17, 4.22, 4.24, 4.26 Pt IA …. 4.53 Pt IV …. 3.25 Pt V …. 4.16 Pt VA …. 4.16, 4.17 Pt VII …. 3.27, 3.29 s 5 …. 3.22, 3.29, 9.3 s 5(1) …. 2.24, 3.11, 3.25, 3.29 s 11 …. 3.21, 3.29, 4.29 s 12 …. 3.23, 3.29, 4.29 s 12(1) …. 3.22, 3.29 s 12(2) …. 3.22, 3.24, 4.29 s 12(2)(b) …. 3.23, 4.29 s 13(1) …. 3.24, 3.29 s 15 …. 3.24, 3.29 s 16 …. 3.24, 3.29 s 18(1)(a) …. 3.24 s 18(1)(b) …. 3.24 s 18(2) …. 3.24 s 18(3) …. 3.24 s 19(1) …. 3.24 s 19(2) …. 3.24 s 23 …. 4.23

s 23(1)(a) …. 4.17 s 23(1)(e) …. 3.21, 3.29, 4.29 s 23B …. 4.22, 4.24, 4.25, 4.27 s 23B(1) …. 3.19, 4.8 s 23B(1)(a) …. 4.10, 4.17 s 23B(1)(b) …. 4.12 s 23B(1)(c) …. 4.14 s 23B(1)(d) …. 4.23, 4.24, 4.62 s 23B(1)(d)(i) …. 4.22, 4.24, 4.62 s 23B(1)(d)(ii) …. 4.22, 4.26 s 23B(1)(d)(iii) …. 4.27, 4.28 s 23B(1)(e) …. 3.21, 3.29, 4.29 ss 25–59 …. 3.25 s 40 …. 3.25, 3.29 s 41 …. 3.25, 3.29, 4.15 s 42 …. 4.15 s 42(1) …. 3.29 s 42(1)(a) …. 3.25, 3.29 s 42(1)(c) …. 3.25 s 42(8) …. 3.29 s 42(10) …. 3.25 s 43 …. 3.25 s 44 …. 3.25, 4.15 s 45 …. 3.28, 3.29, 4.15 s 45(1) …. 3.26 s 45(2) …. 3.26, 3.28 s 46 …. 3.29, 4.15

s 46(1) …. 2.24, 2.51, 3.12, 3.26, 3.29 s 48 …. 4.26 s 48(1) …. 3.11, 3.28, 4.14 s 48(2) …. 3.25, 3.28, 4.14, 4.15 s 48(2)(a)–(d) …. 4.15 s 48(2)(e) …. 3.25, 4.15 s 48(3) …. 3.28, 4.15 s 50 …. 4.15 s 50(1) …. 3.26, 3.29 s 50(2) …. 3.26, 3.29 s 69(2) …. 2.51 s 73 …. 4.16 s 88C(1)(a) …. 4.16 s 88D …. 4.16, 4.17 s 88D(1) …. 4.16 s 88D(2) …. 4.16, 4.22 s 88D(2)(a) …. 4.17 s 88EA …. 4.16 s 88G(1) …. 4.16 s 88G(3) …. 4.16 s 91(1) …. 4.17 s 94 …. 4.10, 4.11, 4.17 s 94(1) …. 4.10, 4.11 s 95 …. 3.24, 3.29 s 96 …. 3.27 s 99(1) …. 3.27 s 100 …. 3.27

s 104 …. 3.27 s 113 …. 4.11 Marriage Amendment Act 2004 …. 4.17 Matrimonial Causes Act 1959 …. 2.42, 4.38 s 18(1) …. 3.13 s 18(1)(d) …. 3.13 s 86 …. 8.134 s 124 …. 8.141 Migration Act 1958 …. 3.29, 5.68, 10.13 Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 …. 2.32, 3.9 Same-Sex Relationships (Equal Treatment in Commonwealth Laws — Superannuation) Act 2008 …. 2.32 Sex Discrimination Amendment Act 1991 s 3 …. 3.21

Australian Capital Territory Civil Partnerships Act 2008 …. 9.14 Crimes Act 1900 s 19 …. 10.78 s 20 …. 10.78 s 25 …. 10.78 s 24 …. 10.77 s 35 …. 10.79 Domestic Relationships Act 1994 …. 9.4 Domestic Violence and Protection Orders Act 2008 …. 10.60 Family Violence Act 2016 …. 10.60

Pt 3 …. 10.60 Pt 5 …. 10.60 Pt 6 …. 10.60 Pt 9 …. 10.60 Div 3.3 …. 10.60 Div 3.3.2 …. 10.60 Div 3.3.3 …. 10.60 Div 3.4 …. 10.60 Div 3.5 …. 10.60 s 6 …. 10.60 s 7 …. 10.60 s 8 …. 10.60 s 9 …. 10.60 s 10 …. 10.60 s 11 …. 10.60 s 14(1) …. 10.60 s 15 …. 10.60 s 16 …. 10.60 s 35 …. 10.60 Human Rights Act 2004 …. 1.8 s 11 …. 1.8 Marriage Equality (Same Sex) Act 2013 …. 2.26

New South Wales Births, Deaths and Marriages Registration Act 1995 s 32A …. 3.17 s 32B …. 3.17

Commonwealth Powers (Family Law — Children) Act 1986 …. 2.30 Conveyancing Act 1919 s 23 …. 9.39 Crimes Act 1900 …. 10.85 Pt 15A …. 10.61 s 23 …. 10.85 s 35 …. 10.78 s 45 …. 5.68 s 45A …. 5.68 s 54 …. 10.78 s 59 …. 10.77 s 80G(1) …. 5.56 s 91G(1)(b) …. 5.56 s 91H(2) …. 5.56 Crimes (Domestic and Personal Violence) Act 2007 …. 10.61 Pt 6 …. 10.61 Pt 7 …. 10.61 Pt 8 …. 10.61 Pt 9 …. 10.61 Pt 10 …. 10.61 s 8 …. 10.79 s 9(1) …. 10.61 s 9(2) …. 10.61 s 9(3) …. 10.61 s 9(4) …. 10.61 s 13 …. 10.61, 10.79

s 14 …. 10.61 s 21 …. 10.61 s 21(2) …. 10.61 s 21(2A) …. 10.61 s 27 …. 10.61 s 27(5) …. 10.61 s 35(1) …. 10.61 s 39(1) …. 10.61 s 40A …. 10.61 s 41A …. 10.61 s 42 …. 10.61 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016 …. 10.61 De Facto Relationships Act 1984 …. 8.61, 9.56 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74 Property (Relationships) Act 1984 …. 9.4 s 8 …. 9.14 Relationships Register Act 2010 …. 9.14 Surrogacy Act 2010 s 8 …. 5.22

Northern Territory Criminal Code 1983 s 31 …. 10.83 s 160 …. 10.83 s 177 …. 10.78

s 181 …. 10.78 s 186 …. 10.77 s 188 …. 10.77 s 189 …. 10.79 De Facto Relationships Act 1991 …. 9.4 Domestic and Family Violence Act 2007 Pt 3.2 …. 10.62 s 3(1) …. 10.62 s 3(2) …. 10.62 s 3(3) …. 10.62 s 4 …. 10.62 s 5 …. 10.62 s 6 …. 10.62 s 7 …. 10.62 s 8 …. 10.62 s 9 …. 10.62 s 10 …. 10.62 s 11 …. 10.62 s 12 …. 10.62 s 18(2) …. 10.62 s 28 …. 10.62 s 29 …. 10.62 s 35(1) …. 10.62 s 38 …. 10.62 s 41 …. 10.62 s 45 …. 10.62 s 45(1) …. 10.62

s 48 …. 10.62 s 51 …. 10.62 s 65 …. 10.62 s 66 …. 10.62 s 82 …. 10.62 ss 107–109 …. 10.62 s 114 …. 10.62 s 121(1) …. 10.62 s 122(2) …. 10.62 Firearms Act s 39 …. 10.62 s 40 …. 10.62 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74

Queensland Commonwealth Powers (Family Law — Children) Act 1990 …. 2.30 Criminal Code 1899 s 245 …. 10.77 s 291 …. 10.83 s 303 …. 10.83 s 317 …. 10.78 s 320 …. 10.78 s 328 …. 10.77 s 359A …. 10.79 s 359B …. 10.79 Domestic and Family Violence Protection Act 1989 …. 10.63

Domestic and Family Violence Protection Act 2012 …. 10.63 Preamble …. 10.63 Pt 4 …. 10.63 Pt 6 …. 10.63 Pt 7 …. 10.63 Div 6 …. 10.63 s 8 …. 10.63 ss 13–20 …. 10.63 ss 53–55 …. 10.63 Domestic and Family Violence Protection and Other Legislation Amendment Act 2016 …. 10.62 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74 Property Law Act 1974 …. 9.4 Status of Children Act 1978 …. 5.22 Surrogacy Act 2010 …. 5.22 s 17 …. 5.22 s 21(1)(a) …. 5.22 s 22(2)(e)(ii) …. 5.22 s 22(2)(e)(vi) …. 5.22 s 23(1) …. 5.22 s 23(2)(a) …. 5.22 s 23(4) …. 5.22 s 32 …. 5.22 Surrogate Parenthood Act 1988 …. 5.22 s 3 …. 5.22

South Australia

Commonwealth Powers (Family Law) Act 1986 …. 2.30 Criminal Law Consolidation Act 1935 s 19AA …. 10.79 s 21 …. 10.78 s 23 …. 10.77, 10.78 De Facto Relationships Act 1996 …. 9.4 Domestic Violence Act 1994 …. 10.64 Intervention Orders (Prevention of Abuse) Act 2009 s 5 …. 10.64 s 8 …. 10.64 Sch 1 cl 36 …. 10.64 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74 Sexual Reassignment Act 1988 …. 3.16

Tasmania Commonwealth Powers (Family Law) Act 1987 …. 2.30 Criminal Code 1924 s 156(2)(b) …. 10.83 s 156(2)(c) …. 10.83 s 159 …. 10.83 s 159(1) …. 10.83 s 170 …. 10.78 s 172 …. 10.78 s 182 …. 10.77 s 192 …. 10.79 Domestic Violence Orders (National Recognition) Act 2016 …. 10.65

Family Violence Act 2004 …. 10.65 s 3 …. 10.65 s 4 …. 10.65 s 5 …. 10.65 s 7 …. 10.65 s 14(1) …. 10.65 s 14(2) …. 10.65 s 14(3)(c) …. 10.65 s 14(6) …. 10.65 s 14(7) …. 10.65 s 14(8) …. 10.65 s 14(9) …. 10.65 s 14(10) …. 10.65 s 14(11) …. 10.65 s 14(13) …. 10.65 s 14(15) …. 10.65 s 15 …. 10.65 s 16(1) …. 10.65 s 16(2) …. 10.65 s 16(3)(b) …. 10.65 s 19 …. 10.65 s 20 …. 10.65 s 20(3) …. 10.65 s 23(1) …. 10.65 s 23(2) …. 10.65 s 23(3) …. 10.65 s 25 …. 10.65

s 26 …. 10.65 s 27 …. 10.65 s 28 …. 10.65 s 29 …. 10.65 s 31(1) …. 10.65 s 31(8) …. 10.65 s 31(9) …. 10.65 s 35 …. 10.65 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74 Justices Act 1959 …. 10.65 s 15 …. 10.65 Relationships Act 2003 …. 9.4, 10.65 Pt 2 …. 10.65 s 4 …. 10.65 s 7 …. 10.65

Victoria Births, Deaths and Marriages Registration Amendment Act 2004 …. 3.16 Charter of Human Rights and Responsibilities Act 2006 …. 1.9 s 17 …. 1.9 Children, Youth and Families Act 2005 …. 10.68 Commonwealth Powers (Family Law — Children) Act 1986 …. 2.30, 2.51 Crimes Act 1958 s 3B …. 10.85

s 15 …. 10.77, 10.78 s 320 …. 10.77 Family Violence Protection Act 2008 …. 10.66, 10.68, 10.85 Pt 3 Div 2 …. 10.68 Pt 5 Div 2 …. 10.67 Pt 7 …. 10.68 Pt 8 …. 10.68 s 1 …. 10.68 s 2 …. 10.68 s 4 …. 10.68 s 5(1) …. 10.68 s 5(2) …. 10.68 s 5(3) …. 10.68 s 6 …. 10.68 s 7 …. 10.68 s 8 …. 10.68 s 9(1) …. 10.68 s 10 …. 10.68 s 14 …. 10.68 s 24 …. 10.68 s 26(b)(iii) …. 10.85 s 30(1) …. 10.68 s 31 …. 10.68 s 35 …. 10.68 s 37 …. 10.68 s 37(1) …. 10.68 s 38 …. 10.68

s 42 …. 10.68, 10.85 s 45 …. 10.68, 10.85 s 50(1) …. 10.85 s 53 …. 10.68, 10.85 s 53(1) …. 10.68 s 57 …. 10.68 s 60 …. 10.68 s 74 …. 10.68, 10.85 s 76 …. 10.68, 10.85 s 77 …. 10.68, 10.85 s 77(2) …. 10.68, 10.85 s 78(1) …. 10.85 s 81 …. 10.85 s 94 …. 10.68 s 95(a) …. 10.68 s 95(b) …. 10.68 s 96 …. 10.68 s 97(2) …. 10.68 s 97(3) …. 10.68 s 99(a) …. 10.68, 10.85 s 99(b) …. 10.68 s 100 …. 10.68 s 100(2) …. 10.68 s 101 …. 10.68, 10.85 s 102(1)(a) …. 10.68 s 102(1)(b) …. 10.68 s 103 …. 10.68

s 104 …. 10.68 s 106 …. 10.68 s 107 …. 10.68 s 108 …. 10.68 s 109 …. 10.68 s 123 …. 10.68 s 123(1)(b) …. 10.68 s 124 …. 10.68 s 157 …. 10.68 s 158(2) …. 10.68 s 159(2) …. 10.68 s 160 …. 10.68 s 160(2) …. 10.68 s 163 …. 10.68 s 164 …. 10.68 s 165 …. 10.68 s 177 …. 10.68 s 179 …. 10.68 s 180 …. 10.68 s 181 …. 10.68 s 184 …. 10.68 s 186 …. 10.68 s 187 …. 10.68 Family Violence Protection Amendment Act 2014 …. 10.66 Firearms Act 1996 …. 10.68 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74 s 8 …. 10.74

National Domestic Violence Order Scheme Act 2016 …. 10.68 Personal Safety Intervention Orders Act 2010 s 10 …. 10.79 Property Law Act 1958 …. 8.61, 9.56 Pt IX …. 10.74 Relationships Act 2008 …. 9.4, 10.68 Summary Offences Act 1966 s 23 …. 10.77

Western Australia Births, Marriages and Deaths Registration Act 1998 s 49 …. 5.22 Criminal Code Act Compilation Act 1913 s 222 …. 10.77 s 268 …. 10.83 s 280 …. 10.83 s 294 …. 10.78 s 297 …. 10.78 s 304 …. 10.77 s 338D …. 10.79 Family Court Act 1975 …. 2.51 Family Court Act 1997 …. 5.22, 9.4 s 63 …. 10.69 s 191(1) …. 5.22 s 205X …. 9.14 s 205X(b)(ii) …. 9.14 Guardianship and Administration Act 1990 …. 10.69

Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 10.74 Restraining Orders Act 1997 …. 10.69 Pt 5 …. 10.69 s 3 …. 10.69 s 4 …. 10.69 s 6(1) …. 10.69 s 7A …. 10.69 s 7A(d) …. 10.69 s 11A …. 10.69 s 14(1) …. 10.69 s 14(2) …. 10.69 s 14(5) …. 10.69 s 16(1) …. 10.69 s 16(4) …. 10.69 s 16(5) …. 10.69 s 16(5)(a) …. 10.69 s 16(5)(c) …. 10.69 s 18(1)–(2) …. 10.69 s 23 …. 10.69 s 25(1) …. 10.69 s 25(2)(a) …. 10.69 s 25(2)(b) …. 10.69 s 25(3)(a) …. 10.69 s 25(3)(b) …. 10.69 s 29(1)(a) …. 10.69 s 30A(1) …. 10.69 s 32 …. 10.69

s 43A(7)(a) …. 10.69 s 45 …. 10.69 s 45(2)(a) …. 10.69 s 46 …. 10.69 s 49 …. 10.69 s 55 …. 10.69 s 60 …. 10.69 s 61 …. 10.69 s 62C …. 10.69 s 62E …. 10.69 s 63(4)(b) …. 10.69 s 63A …. 10.69 s 74 …. 10.69 s 75 …. 10.69 s 76 …. 10.69 s 77 …. 10.69 s 78 …. 10.69 s 79 …. 10.69 ss 79A–79F …. 10.69 Restraining Orders Regulations 1997 …. 10.69

United Kingdom Children Act 1989 …. 5.24 Commonwealth of Australia Constitution Act 1900 …. 1.1 Gender Recognition Act 2004 …. 3.12 Matrimonial Causes Act 1857 …. 3.20

India Dowry Prohibition Act 1961 …. 4.31 Hindu Marriage Act 1955 …. 4.11, 4.22, 4.31 Indian Special Marriage Act 1954 …. 4.31 s 27 …. 2.49 s 28 …. 2.49

Ireland Constitution Art 46 …. 3.8

Scotland Children Act 1995 s 1 …. 5.25 s 2 …. 5.25

International Convention on the Elimination of All Forms of Discrimination against Women 1981 …. 1.6 Convention on the Rights of Persons with Disabilities 2009 …. 10.13 Hague Convention on the Civil Aspects of International Child Abduction 1980 …. 5.70, 5.71 Art 1 …. 5.70 Art 3 …. 5.71 Art 3(b) …. 5.70

Art 4 …. 5.70 Art 12 …. 5.70 Art 13 …. 5.70, 5.71, 5.72 Art 13(b) …. 5.72 Art 16 …. 5.70 Art 19 …. 5.70 Art 20 …. 5.70 Art 21 …. 5.70 Art 23 …. 5.73 Art 24 …. 5.73 Art 26 …. 5.73 Art 28 …. 5.72 International Covenant on Civil and Political Rights 1966 …. 1.5, 1.9 Art 17 …. 1.5 Art 23 …. 1.5 Art 23(1) …. 1.9 Art 24 …. 1.5 Art 24(1) …. 1.9 International Covenant on Economic, Social and Cultural Rights 1966 …. 1.5 Art 10(1) …. 1.5 Art 11(1) …. 1.5 Optional Protocol to the Convention against Torture and other Inhuman or Degrading Treatment or Punishment 2009 …. 10.13 Optional Protocol to the Convention on the Rights of the

Child on the Sale of Children, Child Prostitution and Child Pornography 2007 …. 10.13 Optional Protocol to the Convention on the Elimination of Discrimination against Women 2008 …. 10.13 United Nations Convention on the Rights of the Child 1989 …. 1.5, 2.21, 5.1, 5.3, 5.4, 5.6, 5.7, 5.24, 5.47, 5.70, 5.71, 10.13, 10.63 Art 3(1) …. 5.4 Art 4 …. 5.70 Art 7 …. 5.4 Art 9 …. 5.47 Art 9(3) …. 5.4 Art 12 …. 5.45, 5.47, 5.71, 5.73 Art 14 …. 5.60 Art 18 …. 5.4 Art 19 …. 5.3, 5.4, 5.7 Art 27 …. 6.4 Art 37 …. 5.68 Art 37(c) …. 10.13 United Nations Declaration on the Elimination of Violence against Women 1993 …. 10.3, 10.63 United Nations Declaration on the Rights of the Child 1959 …. 5.4 United Nations Principles for Older Persons …. 10.63 Universal Declaration of Human Rights 1948 …. 1.2, 1.3, 1.5, 10.63 Art 16 …. 3.1, 3.5 Art 16(1)–(3) …. 1.4

Art 17.2 …. 8.1

Contents Preface Table of Cases Table of Statutes

1

The Evolving Face of the Family Criticisms of Australia’s position on human rights The family reflected in international human rights instruments International Day of Families Human rights in Australian states Defining the family Functions of the family

2

Constitutional and Jurisdictional Issues of Family Law Incidental powers The High Court as an interpreter of the Commonwealth Constitution Interpretation of the divorce and matrimonial causes, and marriage powers, by the High Court The second limb of s 51(xxii) The marriage power States’ referral of family law powers to the Commonwealth A further referral of states’ power — de facto financial matters and other measures Cross-vesting of jurisdiction Courts exercising jurisdiction under the Family Law Act Background to the Family Law Act and the Family Court of Australia The Federal Circuit Court (previously known as the Federal Magistrates Court) The Family Court of Western Australia

3

Marriage Same-sex marriage in Australia and elsewhere Legal definition of marriage Formalities of marriage in Australia

4

Nullity and Divorce Nullity — a void marriage Divorce Requirements for a divorce order Granting of a divorce where there are children under 18 years When divorce order takes effect

5

Children Objectives and principles of Pt VII of the FLA The Hague Convention on the Civil Aspects of International child Abduction Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of children

6

Parental Responsibility and the Child Support Scheme Child support — a brief history

7

Spousal Maintenance Overview of the legislation Principles relating to an order for spousal maintenance Care and control of a child of the marriage: s 72(a) The power of the Family Court to make orders for spousal maintenance Principles relating to an order for spousal maintenance Cessation of maintenance orders Variation of maintenance orders

8

Distribution of Matrimonial Property Private agreements, consent orders and binding financial agreements regarding property and maintenance Who may make an application? Definition of property Declaration of interests in property: s 78 Section 79 and the High Court decision in Stanford Alteration of property interests Ascertaining the property of the parties Valuation of property Assessment of contributions A section by section approach

9

Financial Disputes Between De Facto Partners

Couples in Australia Contrast between de jure and de facto relationships Overview of legislative schemes and factors relevant to property distribution Just and equitable Full and frank disclosure Wastage and the diminishing of the parties’ assets Maintenance Superannuation Binding financial agreements Protection for creditors and trustees in bankruptcy Duty to end financial relations Trusts

10 Violence within the Family Terminology Types of abuse Reasons for family violence The feminist perspective Consequences of violence within the family Legislative responses to violence The emergence of tort proceedings for domestic violence Index

[page 1]

1 The Evolving Face of the Family The ideal of ‘a family’ is one of the most basic models of what a better world can be like. In a perfect family, the members are joined by bonds of love; they help each other meet all of their physical and emotional needs. Of course no family is perfect, but a family that strives together to become a ‘family for a better world’ can help each member to feel more fulfilled and better about themselves and the world. They also provide a real-life example of how the human family can work together to create a better world. Robert Alan Silverstein, American writer, artist, social activist

Introduction 1.1 It is unlikely that more than a handful of Australian families consider whether there are constitutional or legislative rights and freedoms attached to their status as an individual or a family. Yet their very status as a human being bestows on them the inherent dignity and the equal and inalienable rights of all members of the human family. Fewer still are likely to debate the Australian lack of human rights

instruments or contrast their position with every other Western democracy, all of whom have such rights entrenched constitutionally or legislatively. In short, many of these firmly established rights give a broad interpretation to the meaning of family and are chiefly designed to protect family relationships by bestowing the right to privacy and protection from arbitrary interference in family life by governing bodies. Although space does not allow a wide-ranging discussion of all elements of international human rights legislation it is incumbent on a family law practitioner to have a familiarity with such legislation, especially in relation to the family and children. Australia, as a nation, was established on the first day of January 1901 following the passing of the Commonwealth of Australia Constitution Act 1900 (Imp) by the United Kingdom Parliament. The transition to nationhood occurred when six former British colonies — New South Wales, Victoria, Queensland, [page 2] South Australia, Western Australia and Tasmania, later joined by three self-governing territories — united to form the Commonwealth of Australia. These states and territories have their own constitutions, parliaments, governments and laws. The purpose of the United Kingdom 1900 Act was ‘to constitute the Commonwealth of Australia’. The Australian Constitution (the Constitution) describes the composition, role and powers of the Federal Parliament. It sets out the manner by which the federal and state parliaments share the

power to make laws. It also details the role of the Executive Government and the High Court. The importance of the Constitution cannot be overstated. It is supreme in the hierarchy of the legal framework by which Australia is governed. Furthermore, its provisions can only be changed by referendum. The history of referenda in Australian is not a successful one. Of 44 referenda held between 1906 and 1999 only eight were carried. Surprisingly out of step with other liberal democracies, the Constitution does not make provisions for basic human rights but rather allows some ad hoc rights such as the right to vote (s 41); the requirement that any acquisition of property by the Commonwealth be on just terms (s 51(xxxi)); the right to trial by jury (s 80); the right to freedom of ‘trade, commerce and intercourse’ among the states (s 92); the right to freedom of religion (s 116); and the right to non-discrimination on the basis of state residence (s 117). Certainly the status of the family as an entity vital to the wellbeing of the country was not acknowledged. The Constitution at its inception was, and continues to be focused, not on the rights of citizens, but on the interaction of various tiers of government and the relationship with the states and territories. The Constitution is a pragmatic document placing considerable reliance on the fact that each arm of government would carry out the role allotted to it with integrity. In addition, the common law was, and still is, considered to play a vital role in safeguarding the rights of the Australian populace in a democracy. Certainly the common law as a body of principles is a storehouse of rights and freedoms but they are not in the nature of a carefully considered bill of rights. Nor do all of those who dispense the

common law at the very highest level think it offers encompassing rights and freedoms protection. Just one of many examples to illustrate the point is a comment made in 1998 by the then Chief Justice of the High Court of Australia, Sir Anthony Mason, who stated that the common law ‘… does not protect fundamental rights as comprehensively as do constitutional guarantees and conventions on human rights … The common law is not as invincible as it was once thought to be’.1 Of course, it cannot be denied that many Australian individuals and families enjoy the benefits of living in a stable democracy but equally there are others whose lives are beset by poverty, hopelessness and, for many children in particular, constant violence and abuse. This is true especially of many Indigenous families and those who seek asylum in Australia. This is incongruous in a country which played an admirable human rights role in the aftermath of two unspeakably horrific world wars. [page 3]

Criticisms of Australia’s position on human rights 1.2 From the time of Federation there have been political, judicial and academic discussions as to why Australia has not followed the path of so many common law countries by passing legislation on the basis of the myriad of rights to be gleaned from international human rights instruments. None

of these discussions has resulted in a legislated bill of rights. The very question of the benefits or otherwise of such legislation is now thoroughly politicised and at the time of writing there is realistically little chance of the passing of an Australian Human Rights Act. Paradoxically, Australia is a signatory to the Universal Declaration of Human Rights and has ratified nearly all of the conventions that stem from it. The Universal Declaration, and the covenants and conventions associated with it, articulate the fundamental human rights of all individuals on Australian soil. Although Australia is a signatory to several important conventions and protocols, it has not enacted them in domestic law. At most, ratification of the covenants by the Australian Federal Government encourages Australian courts to take their provisions into account in their interpretations and judgments but this cannot be guaranteed unless the covenants have been expressly incorporated into Australian legislation. As it stands none have been given this level of respect and recognition.

The family reflected in international human rights instruments 1.3 Both World War I and World War II were destructive and deadly to millions of innocent people. World War II (1939–1945), in particular, caused the systematic extermination of over 6 million Jews, gypsies, homosexuals, persons with disabilities and others. The fact that these innocent men, women and children who suffered indescribable torment were victims of their own governments

horrified the world. The barbarity of World War I, which in its aftermath was referred to as ‘the war to end all wars’, was magnified by even more barbarous acts of extreme cruelty and oppression in World War II. The outrage that followed led to the founding of the United Nations (UN) in 1945, an international organisation whose stated aims are to facilitate cooperation in international law, international security, economic development, and most important for our purposes, social equity. The resulting Universal Declaration on Human Rights (Universal Declaration) is at the pinnacle of rights and freedoms providing a template for the many human rights instruments which have followed. Australia, under the leadership of the Honourable Dr Herbert Evatt, in his capacity as Minister for External Affairs, was at the forefront of setting up the UN. Australia was one of the eight nations involved in the drafting of the Universal Declaration. Inspirational as the Universal Declaration has proved it is not, however, a treaty and so does not directly create other than moral obligations for Australia. The Universal Declaration was adopted by the General Assembly of the United Nations on 10 December 1948. The adoption of the Universal Declaration was the first time [page 4] that multiple countries agreed on a comprehensive statement of inalienable human rights. The Preamble of the Universal Declaration provides the philosophy that underpins the ‘culture’ of all such human rights instruments that have

followed. Briefly, the Universal Declaration Preamble recognises that ‘the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world’. The Universal Declaration speaks to the ultimate audience — all of humankind, but also acknowledges the narrower definition of family on which we will concentrate in most of the chapters to follow. At a time when the whole world was in disarray, the Universal Declaration was very mindful of the vital role of the family in forming the bonds holding much of society together. The United Nations illustrates regard for the family by proclaiming a special day of honour.

International Day of Families 1.4 The International Day of Families occurs on 15 May each year. The International Day of Families was proclaimed by the UN General Assembly in 1993 with resolution A/RES/47/237 (coming into force in May 1994). Each year since 1994 this special day has a theme devoted to raising issues of interest and importance in relation to the family and also providing education highlighting the theme relevant to a particular year. The year 2016 placed a special emphasis on ‘Families, healthy lives and sustainable future’.2 Encouragement from the UN to member states to better ‘harvest’ family strengths by creating family-oriented policies is obvious in this statement: A number of family policies, such as those supporting the caregiving role of families, work-family balance for parents, empowering families to support their individual members’ health, education and well-being, have been found to

contribute to overall development goals. Still, a broad range of family policies enacted at national levels and relating to different facets of family life have an often untapped potential to further contribute to the achievement of many national development goals.3

The Universal Declaration of Human Rights states at Article 16(1)–(3): ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ 1.5 In a progressively globalised society, international law is becoming increasingly important. Its impact on domestic law is evident in family law, most significantly, the influence of the Universal Declaration on international human rights law, which particularly acknowledges the importance of the family unit to society. [page 5] The international community has recognised and articulated the significance and importance of the family in a number of international human rights instruments. Most important among these are: International Covenant on Economic, Social and Cultural Rights (16 December 1966, entry into force 3 January

1976): Article 10(1) states: ‘The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.’ Article 11(1) provides ‘… the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’. International Covenant on Civil and Political Rights (16 December 1966, entry into force 23 March) further promotes the importance of the family in several Articles. Article 17 states: ‘1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ Article 23 echoes the Universal Declaration: 1.

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2.

The right of men and women of marriageable age to marry and to found a family shall be recognized.

3.

No marriage shall be entered into without the free and full consent of the intending spouses.

4.

States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24 recognises the need to protect children thus:

1.

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2.

Every child shall be registered immediately after birth and shall have a name.

3.

Every child has the right to acquire a nationality.

United Nations Convention on the Rights of the Child (20 November 1989, entry into force 2 September 1990): This will be discussed in detail in Chapter 5. Under this most important of conventions, children have such basic rights as the right to survival; to develop to the fullest; to protection from harm, abuse and exploitation; and to participate fully in family, cultural and social life. It is also acknowledged that children have very specific needs for their development. For example, one of the paragraphs in the Preamble [page 6] states: ‘Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.’ If this were only true for all children, whatever their colour, race or ethnicity. 1.6 In addition, the Convention on the Elimination of All Forms of Discrimination against Women especially gives recognition to the vital role played by women in family life:

… [b]earing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole …

While giving voice to the vulnerability of the family unit in relation to social, economic and political pressures, there is no attempt to provide a definition of family. There is certainly no reference to the diversity of modern family structures, for example, families formed by same-sex couples. This omission, however, allows for the inclusion of family groups beyond the nuclear family.

Human rights in Australian states 1.7 The Australian Capital Territory and Victoria have enacted human rights legislation with respect to the family.

Human Rights Act 2004 (ACT) 1.8 The Australian Capital Territory was the first Australian jurisdiction to pass human rights legislation. The Human Rights Act 2004 (ACT) declares its purpose to be: ‘An Act to respect, protect and promote human rights.’ It covers a very broad spectrum of rights including civil, political, economic, social and cultural rights. As with so many other similar ‘rights’ legislation, the family and children are acknowledged as an integral part of society. Section 11 provides:

Protection of the family and children (1) The family is the natural and basic group unit of society and is entitled to be protected by society. (2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

Charter of Human Rights and Responsibilities Act 2006 (Vic) 1.9 The purpose of this charter is to establish a framework for the protection and promotion of human rights in Victoria. The human rights protected by the charter are civil and political rights. The essence of the charter echoes the International [page 7] Covenant on Civil and Political Rights 1966. For the purposes of this chapter, the most important part is s 17: Protection of families and children (1) Families are the fundamental group unit of society and are entitled to be protected by society and the State. (2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

The Explanatory Memorandum of the Charter of Human Rights and Responsibilities Bill (16 June 2006) in relation to s

17 states that the section is modelled on Articles 23(1) and 24(1) of the International Covenant on Civil and Political Rights 1966. It should be noted that parliament used the word ‘families’ in its broadest sense to recognise the diversity of family formations. As yet no other state or territory has followed the example of the ACT and Victoria by passing legislation upholding the broad rights and freedoms of their citizens.

Defining the family 1.10 Defining the family might seem a simple task, but it is immensely difficult to do so in a way which acknowledges the diversity of the many groups that function as families. In almost all dictionary definitions of family, it is apparent that the ‘ideal’ of the traditional family is much easier to state than a definition that could more readily be applied in today’s society. The Macquarie Encyclopedic Dictionary (2nd ed, Macquarie Dictionary Publishers, Sydney, 2010), for example, defines family as: … parents and their children, whether dwelling together or not; one’s children collectively; any group of persons closely related by blood, as parents, children, uncles, aunts, and cousins; and all those persons descended from a common progenitor.

In this definition, the emphasis on a blood relationship is obvious and valid, but perhaps not a true reflection of the reality of the modern family. This narrow definition must cause confusion to children who do not fit into its parameters and may even result in ridicule and bullying from those students who do so.

1.11 It may be validly argued that a definition of family should not be confined to historical roots, but should be capable of being tested in today’s world against an understanding of how many people are living in relationships that perform all the functions of the traditional family without legal status. It is arguable that the attributes of affection, strong emotional ties, a sense of belonging and durability of membership determine family composition. These attributes may be displayed equally by those groups fitting perfectly within the traditional family form as well as those groups outside the traditional model of family. It is universally acknowledged and illustrated in the many human rights instruments, that there is social and economic value in encouraging individuals to form stable and emotionally intimate relationships. Such relationships do not [page 8] depend on legal formalities, but can be forged and maintained in a wide variety of family forms. As society has changed so too has the expectation that all families fit a particular mould. This is reflected in the formation of so many family types beyond the traditional. Divorce has been available for a long time and hence there are many single parent families. This, however, may not mean that only one parent nurtures the child/children. It is to be expected that though parents may live apart, in ideal circumstances they play a concerted role in the rearing of their children. Blended families are those in which either or both parents bring into the marriage/relationship children from prior relationships.

Rearing of children is no longer confined to heterosexual parents. Gay and lesbian parents may be equally, or more eager, for children than so-called straight parents. It is interesting to note that although lesbian and gay relationships may fail, there are very few cases of neglect of their children. Another family type are adoptive parent families who play a very important role in becoming parents to children who, for whatever reason, cannot be a part of their birth family. One of the most dramatic and deadly changes in society is access to drugs, alcohol and gambling. These things, either singly, or in concert lead to destruction of family life and often such addiction in one or both parents means they are totally unfit to rear children. As so many cases in Chapter 5 will show, one of the more tragic events in a child’s life happens when parents fail to provide the nurturing and support so important to the development of a child. Many times, other family members are able to fill in the gaps and help raise the children, especially when one or both parents is imprisoned. In these circumstances of substance abuse, emotional problems and often physical abuse, it is common for grandparents to step in to provide some kind of competent parenting. Many Commonwealth and state laws reflect the changes in society by including in various pieces of legislation a much broader definition of family in order to reflect the diverse make-up of the present-day family. Nevertheless, the focus of each piece of legislation is the defining of a right or obligation accruing to a person or persons rather than any sociological or broader discussion of family. 1.12

In the last 25 years we have seen, through assisted

reproductive technology, a steady increase in the number of children born to those who, for many reasons, were formerly childless. Many of these children were born as a result of a surrogacy arrangement. A surrogacy arrangement is one by which a woman will carry a child during gestation and upon the birth of the baby relinquish all the normal ties and responsibilities of parenthood to another person or persons. The woman who carries the child may be the genetic mother or she may be the recipient of an embryo, to which she bears no genetic relationship, which has been transferred to her uterus. The former is called traditional surrogacy and the latter gestational surrogacy. Much discussion has occurred in Australia as to whether surrogacy by its nature is likely to exploit the surrogate mother. This is particularly relevant in Australia as many surrogate arrangements occur in places such as Thailand or India where the protection of women may be lacking in force. A further problem lies in the fact that Australians entering into a surrogate relationship, whether in Australia or overseas, may be committing a criminal act. If the surrogate mother receives compensation for carrying and giving birth [page 9] to the child (except for medical and other reasonable expenses) the arrangement is a commercial one and breaches the law of the various states and territories of Australia. In recent times some parts of Australia have allowed an altruistic arrangement where the surrogate mother carries a child for a person or persons without any expectation of

payment over and above reasonable expenses of the pregnancy and birth. The law as an institution has had to regulate and govern the consequences of such arrangements. It is beyond the scope of this work to cover in detail the various pieces of legislation in each state and territory relating to the regulation of surrogacy arrangements. What must be stressed, however, is the illegality across Australia of any surrogacy arrangement tainted by indications of a commercial transaction. Surrogacy will be discussed further in Chapter 5.

Functions of the family 1.13 Support for an inclusive definition of family is based on sociological and economic notions of benefit to the community. When we speak of family functions, we are referring to those tasks or activities carried out by the members of a family individually, or by the family unit as a whole, the most obvious being the provision of housing, food, clothing and health care. Integral to this definition is the notion of a group in common purpose where stability is a key factor. 1.14 For our purposes, it may be helpful to examine the functions of a family through the eyes of the Australian Institute of Family Studies (the Institute), a body established under s 114B(1) of the Family Law Act 1975 (Cth) (FLA). Since its inception, the Institute has established itself as a key centre for research on the family in Australia. This research role was laid down in s 114B(2)(a) of the FLA, which stipulates that it should ‘promote … by research … an

understanding of the factors affecting family and marital stability in Australia, with the object of promoting the protection of the family as the natural and fundamental unit in society’. This charter places a considerable emphasis on research by the Institute, the aim of which is to provide tools for strengthening marriage and the family. 1.15 Although the FLA does not define ‘stability’, it is seen as one of the key factors of adequate family functioning. The Institute defines a stable family as ‘one which supports the well-being of its individual members, which stays together for a sustained period of time, and which contributes positively to the wider society of which it forms a part’: Australian Institute of Family Studies, Australian Family Briefing, No 5, February 1999, p 2 (Briefing No 5). The Institute, however, points out that stability should not be confused with a lack of change. According to the Institute, when families are functioning properly they contribute to stability at three levels (Briefing No 5, p 2): 1.

stability at the level of the individual family member;

2.

stability at the level of the family unit itself; and

3.

stability in the relationship between the family and other social institutions. [page 10]

1.16 The first level is intrinsically tied to the emotional and psychological functioning of the family. The following

summation, although written in 1987, is perfectly valid in relation to all types of families and illustrates that although family forms may have changed, their roles have remained the same. According to L J Aspin, these functions include the following: providing emotional support and affection for each family member; allowing sexual expression between the adult members; giving personal security and loyalty to each member by providing a place where the individual feels protected and relaxed; and encouraging the development and realisation of the individual’s intellectual and social potential, and selfesteem.4 From a societal viewpoint it is the role of parents to teach the child ‘manners’ and ‘civilize’ them so that they can become a part of a social structure beyond the bounds of family. Ideally, in a given set of circumstances, a family provides an environment in which children and adults can interact with each other and learn the behaviours and skills expected of them in society. The family teaches attitudes, values and standards of behaviour. It also provides social support for its members, and gives them a feeling of social identity. In turn, this gives each individual status within the family and the wider society.5 It is at the second level of the family unit itself where the family integrates and adopts strategies that enable successful interaction of family members within the family unit. It is

also at this level that the economic functions are most manifest. Sociologists would view the family as a consuming and producing unit with a tendency to consume more than it produces. It is vital for the wellbeing of the economy and therefore the state that the family continue to perform these functions. 1.17 Paradoxically, the more the various international and domestic bodies acknowledge the importance of the family the greater seems to be the ravages to society caused by the breakdown of the family unit — whatever its composition. The interfaith world body Universal Peace Federation (an NGO in Special Consultative Status with the United Nations Economic and Social Council) defines the family in an idealistic, somewhat sentimental light as: … the school of love and the foundation for a stable society. Marriage between husband and wife lays the foundation for the family. The father and the mother complement one another biologically and psychologically as they raise their children. The family has both private and public functions, promoting both social cohesion and intergenerational solidarity. The love we receive at home provides the framework for fulfilling our potential as human beings.6

[page 11] In this chapter we have spoken of the value and importance of every facet of the family to all of humankind. In many of the chapters ahead, however, we will consider the breakdown of the family and the heartbreak and chaos that may and so often does ensue.

Further discussion 1.

The ‘family unit’ has often been described as the ‘cornerstone of society’. Do you think this concept is still relevant today?

2.

The state has a vested interest in the protection of the ‘family unit’. Explain why this is so.

3.

The ‘family unit’ performs many functions. What do you consider to be the main function of the family as a unit of society?

4.

Describe your notion of the family of the future, and the changes, if any, that may occur in its composition.

5.

Should commercial surrogacy be seen as the exploitation of the surrogate mother or simply as an extension of the consumer society in which we live?

6.

What complications might you see arising in society as a result of the apparent ease with which children may now be born as a result of a contract?

_______________________ 1

2 3 4

Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and United States Experience’ (1986) 16 Federal Law Review 12. See (viewed 20 March 2017). See (viewed 20 March 2017). L J Aspin, The Family: An Australian Focus, 2nd ed, Longman Cheshire, Melbourne, 1987, p 18.

5 6

ibid, p 20. See (viewed 15 May 2017).

[page 13]

2 Constitutional and Jurisdictional Issues of Family Law Let us consider the reason of the case. For nothing is law that is not reason. Sir John Powell (English judge) Coggs v Bernard (1703) 2 Ld Raym 909 at 911

Introduction 2.1 Integral to the study of family law is an understanding of the constitutional and jurisdictional issues which arise as a result of Australia being a federation. When we speak of jurisdiction we are simply referring to the power of a particular court to adjudicate on a matter before it. In order to understand family law in a contemporary setting it is necessary to have an appreciation of the law historically and sociologically. As society has changed so has the legal system evolved to reflect those reforms. In this chapter, our major focus involves an examination of the political and legal dimensions of the source and exercise of Commonwealth

Government powers in relation to family law. The Commonwealth of Australia Constitution Act is the set of rules by which Australia is administered. It took effect on 1 January 1901 and to the present day is the legislative scheme for the manner in which Australia is governed. It includes details on the composition of the Australian Parliament, how parliament works, what powers the parliament has, how federal and state parliaments share power and the roles of the Executive Government and the High Court. Although many sections appear to be simple, they have led to different interpretations and legal arguments. Over the last century s 51 of the Commonwealth Constitution has turned out to be particularly significant because it lists the areas in which the Australian Parliament can make laws. These areas include taxes, defence, trade and commerce with other countries, marriage and divorce, immigration, postal services and disability and age pensions. The Family [page 14] Law Act 1975 (Cth) (FLA) is the major piece of legislation governing the operation of family law in Australia but the jurisdictional power contained in that Act draws on the Commonwealth Constitution for validity. In this chapter much discussion relates to the jurisdiction of the Family Law Courts comprising the Family Court and the Federal Circuit Court. In this context it describes the scope of the courts’ power to examine and determine the facts of a matter before it, interpret and apply the law, make orders and give a judgment. It is now quite rare, but not unknown, for the High

Court to find that the Family Court has a deficit of jurisdiction in relation to matters before it. In Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] Gleeson CJ and McHugh J stated: ‘In a legal context the primary meaning of jurisdiction is “authority to decide”.’ In that matter unfortunately the High Court found it was not within the jurisdictional power of the Family Court to make decisions in relation to the welfare of children in immigration detention. 2.2 Prior to Federation in 1901, Australia consisted of six independent, self-governing colonies. Although these colonies were on the same continent, were of British origin and had similar institutions of law and government, they had no formal connection with one another. It was not until the 1890s that the colonies agreed to unite in a Federation. Under this federal arrangement, the colonies retained their own separate identity and became states of the Federation. 2.3 In 1901, the Commonwealth of Australia Constitution Act (the Constitution) established the Commonwealth of Australia, a new federal entity comprising the former colonies, now called the states. The Constitution sets out the structure of the judicial, executive and legislative arms of the Commonwealth Government, outlines the powers and duties of these respective arms, and delineates the relationship between the Commonwealth and the states of Australia. Each of the states also enacted a corresponding Constitution Act. Section 106 of the Commonwealth Constitution provides that each of the state Constitutions shall continue to operate on the establishment of the Commonwealth, subject to the provisions of the Commonwealth Constitution.

2.4 The Commonwealth Constitution divided the legislative authority between the new Commonwealth and the states by conferring on the new Commonwealth Parliament the ability to legislate ‘with respect to’ a list of topics, the majority of which are provided for in s 51. The Commonwealth Constitution declared that the state parliaments should continue to have legislative powers as they did before Federation, except where the new Constitution ‘exclusively vested’ a power in the Commonwealth Parliament or withdrew a power from the state parliaments: see s 107. 2.5 Implicit in this system is the idea that the Commonwealth legislative power is specific or confined to the listed topics. Over the years, however, the enumerated powers have shown the flexibility necessary to achieve objects hardly considered at the time of Federation. Also implicit in the division of legislative power is the [page 15] prospect of conflict between Commonwealth and state legislation. In the case of the Australian federal system, the potential for this type of conflict is high, for the allocation of legislative powers between the Commonwealth and the state parliaments assumes sharing of responsibilities. 2.6 There are some Commonwealth legislative powers that are expressed to be exclusive (see, for example, s 52 of the Constitution) or which are intrinsically exclusive (see s 51(iv), 51(xxix) and 51(xxx)); but the bulk of these powers

are best described as concurrent, that is, they are shared with the state parliaments whose legislative powers are defined in very general terms in their own Constitution Acts. The framers of the Commonwealth Constitution clearly recognised this potential for Commonwealth–state conflict and made express provisions to deal with it. Conflict between Commonwealth and state legislation is always argued and resolved in terms of s 109 of the Commonwealth Constitution. It states: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

2.7 The provisions of s 109 have an important application to current family law because neither the Commonwealth nor state parliaments have exclusive power to legislate in respect of family law. This is because s 51 of the Commonwealth Constitution gives the Commonwealth Parliament the power to legislate in respect of the important, though nonexhaustive, family law subjects of marriage, divorce and matrimonial causes. Section 51 of the Constitution states: 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; …

2.8

Although these are the primary provisions enabling the

Commonwealth Parliament to make legislation in respect of family law, other heads of power (for example, s 51(xxix) external affairs) have been used to allow further scope for an adventurous parliament.

Incidental powers 2.9 In addition to the expressed powers contained in s 51(xxii) of the Commonwealth Constitution, the parliament has valuable adjunctive powers. These are called incidental powers; there are two types which relate to every head of power specified in s 51. The first is the ‘express incidental power’ conferred by s 51(xxxix). The relevant part of this paragraph states that the parliament has [page 16] power to make laws with respect to ‘matters incidental to the execution of any power vested by this Constitution in the Parliament’.

In Gazzo v Comptroller of Stamps (Vic) (1981) 7 Fam LR 675 at 681–2; FLC ¶91-101, Gibbs CJ stated: The question whether a [Commonwealth] law is reasonably incidental to the subject matter of the power is always one of degree, and it depends to some extent on the nature of the power. Thus the Parliament might, under the defence power, exempt soldiers travelling on duty from the necessity of complying with the traffic

regulations of a State, but it could not validly grant a similar exemption in favour of a married person travelling to avail himself or herself of an order for access made under the Family Law Act.

2.10 The second adjunctive power is the so-called ‘implied incidental power’. This gives the parliament the ability to legislate with respect to any matter which is incidental to the main purpose of an express head of power.

The distinction between the express incidental power of s 51(xxxix) and the implied incidental power was again referred to by the High Court in Gazzo v Comptroller of Stamps (Vic) (1981) 7 Fam LR 675 at 680; FLC ¶91-101 per Gibbs CJ, Stephen and Aickin JJ (the majority). There, Gibbs CJ explained that the express incidental power concerns matters which are incidental to the execution of one of the other substantive heads of constitutional power, while the implied incidental power concerns matters which are incidental to the subject matter of a substantive head of power. Together they enable the parliament to make any law which is directed to the aim or object of a substantive head of power, and any law which is reasonably incidental to its complete fulfilment.

The High Court as an interpreter of the Commonwealth Constitution 2.11 The powers of the Federal Government are by no means unbridled. The Commonwealth Parliament in

accordance with s 71 of the Commonwealth Constitution created the High Court of Australia. It is the High Court to whom we look for an authoritative interpretation of the Constitution. A crucial function is performed by the High Court; one that is both adjudicative and constitutional in that it settles key disputes involving government and branches of government, and in so doing also interprets the Commonwealth Constitution to give new meanings at different points of time. 2.12 It may be argued that, as the interpreter of the basic instrument of government, the High Court is in a certain sense superior to the other parts of the system of government and is above politics. At the same time, the court is an [page 17] integral part of the machinery of Federal Government and carries out its functions within a dynamic political environment. The Federation debates of the founding fathers (unfortunately, in keeping with the times there were no founding mothers) demonstrate that the Australian founders created a powerful court whose prime function was to interpret the Commonwealth Constitution and apply it in settling federal disputes. They intended the court to exercise judicial review over both state and federal legislation and constituted it accordingly. The court was made strong and independent; it was entrenched directly in the Constitution; its minimum size was stipulated and the tenure of judges elaborately safeguarded. Moreover, the intended exercise of

judicial review by the court explains why other parts of the Constitution appear as they do. 2.13 Many of the clauses in the Commonwealth Constitution are drafted in very broad terms on the assumption that the judiciary will interpret and apply them in disputes coming before it. In 1902, Alfred Deakin, then Attorney-General but soon to be Prime Minister, made plain the central role of the High Court in the Australian federal system when he stated: The Constitution is to be the supreme law, but it is the High Court which is to determine how far and between which boundaries it is supreme. The Federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power. Consequently, when we say that there are three fundamental conditions involved in the Federation, what we really mean is that there is one which is more essential than the others — the competent Tribunal which is able to protect the Constitution, and to oversee its agencies. That body is the High Court. If it is properly termed the keystone of the ‘federal arch’ … then the High Court exists to protect the Constitution against assaults.1

Interpretation of the divorce and matrimonial causes, and marriage powers, by the High Court 2.14 Here we learn how the High Court determines or explains the meaning of the powers granted to the legislature through the Commonwealth Constitution.

Divorce and matrimonial causes power 2.15 Section 51(xxii) of the Commonwealth Constitution states that the parliament has power to make laws with respect to ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. It is clear that s 51(xxii) has two limbs. The first contains the main head of power. This gives the parliament the power to make any laws with respect to divorce and matrimonial causes. The second limb confers an ancillary power. Under this limb, the parliament may make laws with respect to parental rights and [page 18] the custody and guardianship of infants, but only if these are ‘in relation’ to a law of the Commonwealth on the subject of divorce and matrimonial causes. (Note that the word ‘custody’ is entirely out of favour with those who, quite correctly, speak of the responsibility of parents to love, nurture and make decisions relating to the long-term care of children.)

Extent to which the parliament can make laws with respect to divorce 2.16

It should be noted that the term ‘dissolution of

marriage’ was used in the FLA prior to 2004. The 2004 amendments replaced ‘dissolution of marriage’ with the term ‘divorce order’. Part VI now refers to the power of the court to make a divorce order. There is no doubt that by virtue of s 51(xxii) of the Commonwealth Constitution the parliament can make any laws that have a clear relationship with divorce. Accordingly, the parliament can make laws which not only specify the grounds for divorce but also set conditions under which a divorce may be obtained. 2.17 Sections 55(1) and 55A(1) of the FLA provide that a divorce order cannot take effect until the court has made the required declaration under s 55A concerning the welfare of any child of the marriage who has not yet reached the age of 18 years. The authority to enact these sections almost certainly lies in the power of the parliament to make laws with respect to, and therefore impose conditions on, the making of orders for divorce under the first limb of s 51(xxii), and not in the power of the parliament to make ancillary laws with respect to the custody and guardianship of infants in the second limb.

‘Matrimonial causes’ defined 2.18 A matrimonial cause is an action between parties to a marriage arising out of the marital relationship. The action may be one seeking a divorce or a declaration of the validity or nullity of a marriage. It may be in relation to the financial maintenance of a spouse or children. Proceedings relating to the division of marital property or an injunction arising from the circumstances of the marriage are a matrimonial cause.

As are proceedings in relation to with whom a child will live and with whom a child will spend time. In the history of the Family Court, few cases have been concerned with the definition of ‘matrimonial causes’. These early cases are Marriage of Lansell (1964) 110 CLR 353; Russell v Russell; Farrelly v Farrelly (1976) 1 Fam LR 11,133; FLC ¶90-039; and Re F; Ex parte F (1986) 10 Fam LR 940; FLC ¶91-739. These matters, however, provide a circumscribed and ambiguous view of the powers inherent in the matrimonial cause’s power under the provisions of the FLA at that time. To a considerable degree the ambiguities and inconsistencies in these cases have been cured by amendments to the FLA and referrals of relevant power by the states to the Commonwealth. Unlike the interpretation of what is meant by marriage, the matrimonial power has attracted far less controversy. [page 19] 2.19 The jurisdictional requirements which prevail for the institution of proceedings for divorce are spelt out in s 39(3) of the FLA. They provide that on the date that the application for divorce is filed with the Family Court, either party to the marriage is: (a) an Australian citizen; or (b) domiciled in Australia; or (c) ordinarily resident in Australia and has been an Australian resident for one year immediately preceding the date of the application.

In relation to the first head, it should be noted that the criteria for citizenship are set out in the Australian Citizenship Act 2007 (Cth). There are a number of ways in which Australian citizenship can be obtained. For example, a person will be a citizen if at the time of his or her birth, one of his or her parents was an Australian citizen or permanent resident, or if he or she has been ordinarily resident in Australia for a period of 10 years since his or her date of birth. In relation to the concept of residence, the court in Marriage of Woodhead (1997) 23 Fam LR 559; (1998) FLC ¶92-813 held that ‘ordinary residence’ is not a term of art but rather it refers to a person’s voluntary place of abode, which is a question to be determined on the facts of the particular case. Some earlier interpretations of the term required some level of established permanence: Re Vassis; Ex parte Leung (1986) 64 ALR 407. Section 4(a) of the FLA indicates that the term ‘ordinarily resident’ includes the term ‘habitually resident’ which has various meanings including ‘a voluntary residence with a degree of settled purpose’ or an arrangement giving rise to permanent or indefinite residence: Kapur and Kapur [1984] Fam Law R 920.

The second limb of s 51(xxii) 2.20 As we have already seen, s 51(xxii) of the Constitution comprises two limbs. The first gives the parliament the general power to make laws with respect to divorce and matrimonial causes, and the second gives the parliament the power ‘in relation thereto’ to make laws with respect to parental rights and the custody and guardianship of infants. It

is clear that the power conferred in the second limb is ancillary to the first. Accordingly, the parliament can exercise this power only in relation to a law of the parliament with respect to divorce and matrimonial causes, and not independently.

Meaning of ‘parental rights’ 2.21 Although the expression ‘parental rights’ has not yet produced any problems in reported cases, one uncertainty exists. This is whether the term concerns the parental rights of spouses only, or whether it concerns parental rights without restriction. Following Re F; Ex parte F (1986) 10 Fam LR 940; FLC ¶91-739, the better view would seem to be that ‘parental rights’ refers only to the parental rights of the [page 20] parties to a marriage and, more particularly, the parties to the marriage that is the subject of the related divorce or matrimonial cause.

In Re F; Ex parte F (1986) 10 Fam LR 940 at 956; FLC ¶91-739 Brennan J stated: The inclusion in para (xxii) of the phrase ‘parental rights’ is an indication that the classes of infants whose custody and guardianship may be the subject of a law made under that paragraph are the children of the marriage which is dissolved by the divorce or out of

which the matrimonial cause arises. The parties to that marriage are the parents of the children of the marriage who are the subject of the ‘parental rights’ mentioned in para (xxii). The grant of power to make laws with respect to ‘parental rights, and the custody and guardianship of infants’ ensures that those matters which fall within the marriage power at least for so long as the marriage subsists fall within the power conferred by para (xxii) when the marriage is dissolved by divorce or when the marriage relationship is affected by an order in the matrimonial cause.

It must, however, be noted that under the present legislation ‘parental responsibility’ is now linked to any adult who has the day-to-day care and responsibility for a child. Additionally, the philosophy of the FLA is to acknowledge the vulnerability of children rather than give voice to any rights of parents. This is a reflection of the provisions of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (entry into force 2 September1900).

Meaning of ‘infants’ 2.22 While the term ‘infant’ is generally used to refer to very young children, the legal connotation extends to all young persons who have yet to attain their majority. Despite the fact that the age of majority has been reduced to 18 years in all Australian states and territories, it seems clear that the term ‘infants’ in s 51(xxii) of the Constitution covers young

people under the age of 21 years. This remains the age of majority at common law: Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565 at 571–2. It is rare, nevertheless, for the Family Court to make an order in respect of a young person over the age of 18, except in adult child maintenance cases. Of a more problematic nature is the uncertainty as to whether the term ‘infants’ concerns only infants who are children of a marriage.

In Fountain and Alexander (1982) 8 Fam LR 67 at 81; FLC ¶91218 Murphy J stated: [A] law providing for custody or guardianship (pending or following a divorce or matrimonial cause) of any infant whose welfare might be affected by the divorce or matrimonial cause is a law with respect to the subject matter in s 51(xxii). The power obviously includes laws dealing with the custody and guardianship of those infants who are born of the marriage which is the subject of the divorce or matrimonial cause but it is not limited to those children. It extends to an infant born during marriage (who is the child of the wife but not the husband); if it did not it would be seriously defective in failing to deal with a commonplace problem arising out of, and often being the cause of, divorce.

[page 21] Unfortunately, the judicial unanimity on this point.

decisions

do

not

show

In the later case of Marriage of Cormick; Salmon (Respondent) (1984) 9 Fam LR 880 at 886; FLC ¶91-554 Murphy J stated: The deliberate use of the general word ‘infants’ rather than the limited ‘children of a marriage’ shows that it was not intended to restrict the power, but to extend it so that parliament could make laws relating to a child, even though not a child of the marriage, who might be affected by a divorce or other matrimonial cause. If the power were restricted to children of the marriage, parliament could not even provide for children born during the marriage in consequence of adultery. This interpretation was not accepted in Re F; Ex parte F (1986) 10 Fam LR 940 at 944; FLC ¶91-739 by Gibbs CJ, who stated: My present opinion is that the word ‘infants’ in s 51(xxii) does not refer to children other than those who are children of the marriage; the use of the word ‘infants’ instead of the word ‘children’ was intended only to show that the power did not extend to adult children. This restricted view of the term ‘infants’ was shared by Brennan J (with whom Wilson J agreed).

The marriage power 2.23 The marriage power of s 51(xxi) of the Constitution is a very wide power which validates any law which has sufficient connection with marriage. Section 51(xxi) states: The Parliament shall … have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

… (xxi) marriage; …

In R and Lambert; Ex parte Plummer (1980) 6 Fam LR 355 at 361; FLC ¶90-904, in discussing the scope of the marriage power, Gibbs J (as he then was) stated: The crucial question, however, is whether the legislation creates, defines or declares rights or duties that arise out of, or have close connection with, the marriage relationship. This statement of the law has received approval by members of the High Court in many subsequent cases.

The meaning of ‘marriage’ for the purposes of the marriage power 2.24 One approach to constitutional interpretation is to interpret the document to give effect to the framers’ intentions. This entails that, as a general rule, the words in the Constitution should be given their meaning at the time of enactment. In its [page 22] most acute form, this interpretive theory is known as originalism: for a discussion regarding the different

approaches to constitutional interpretation, see M Bagaric, ‘Originalism: Why Some Things Should Never Change — Or at Least Not Change Too Quickly’ (2000) 19 U Tas L Rev 173. Pursuant to this approach, in order to ascertain the meaning of ‘marriage’ we must look to its meaning in the early 1900s. The meaning of marriage was at that time, and remains today, the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Therefore, marriage is a formal, monogamous, heterosexual union, in accordance with the classic definition of marriage in the English case of Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 at 133. As already observed, the definition of marriage in Hyde v Hyde and Woodmansee is the current legal meaning of ‘marriage’ in Australia today. This is evident from the statutory definition of this term in s 43(a) of the FLA, and in s 46(1) of the Marriage Act 1961 (Cth) (Marriage Act). Further, in 2004 the Marriage Act was amended to include the definition of marriage in the interpretation section. Section 5(1) of that Act provides: … ‘marriage’ means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

2.25 The problem with restricting the term ‘marriage’ in s 51(xxi) to the definition in Hyde v Hyde and Woodmansee is that it prevents the parliament from legislating in respect of three types of domestic union which are common in Australia: first, Aboriginal customary marriage; second, de facto relationships; and third, homosexual relationships. There has accordingly been some pressure for s 51(xxi) to be defined more widely to incorporate at least these unions. To date, the High Court has not given any detailed consideration

to the meaning of the term ‘marriage’ in s 51(xxi) of the Constitution. What may be discerned from the various judgments, however, are two views of the meaning of marriage within s 51(xxi). One view is that marriage is to be defined only in accordance with Hyde v Hyde and Woodmansee. A second view seems to suggest that parliament has much broader powers under s 51(xxi) and need not be constrained by the meaning of marriage at the time of Federation. When one considers the innate conservatism expected of the High Court, some of the early judgments make very interesting reading.

In Attorney-General (NSW) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 at 610 Higgins J was of the opinion that: Under the power to make laws with respect to ‘marriage’ I should say that the Parliament could prescribe what unions are to be regarded as marriages. A narrow interpretation was given in Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 at 549 (the Marriage Act case), where McTiernan J stated: The term ‘marriage’ bears its own limitations and Parliament cannot enlarge its meaning. In the context … [of] … the Constitution … the term ‘marriage’ should receive its full grammatical and ordinary sense: plainly in this context it means only monogamous marriage. [page 23] In the same matter, however, Windeyer J at 576–7 was of the opinion that:

It has been suggested that the Constitution speaks of marriage only in the form recognised by English Law in 1900 … and that therefore the legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity. That seems to me an unwarranted limitation. Marriage can have a wider meaning for law. Windeyer J also cited with approval the opinion of Higgins J in Attorney-General (NSW) v Brewery Employees’ Union of NSW (above) at 610. In Marriage of Cormick; Salmon (Respondent) (1984) 9 Fam LR 880 at 886; FLC ¶91-554, Brennan J stated: The scope of the marriage power conferred by s 51(xxi) of the Constitution is to be determined by reference to what falls within the conception of marriage in the Constitution, not by reference to what the parliament deems to be, or to be within, that conception.

Similar statements were subsequently made by his Honour in Fisher v Fisher (1986) 11 Fam LR 11; FLC ¶91-767; [1986] HCA 61 and by Mason, Brennan and Deane JJ in Re F; Ex parte F (1986) 10 Fam LR 940; FLC ¶91-739. In Fisher, Brennan J (at 22) indicated that the ambit of ‘marriage’ in s 51(xxi) is to be determined by society’s appreciation of what constitutes marriage.

In the case of R and L (1991) 15 Fam LR 122 at 127; FLC ¶92266, Brennan J appears to have implied that in his view society’s current appreciation of what constitutes marriage and the established legal definition of marriage are the same, for he there

referred to the general notion of marriage in traditional legal terms as the exclusive union of a man and a woman.

2.26 In recent years, however, some members of the High Court have taken a more contemporary approach towards the interpretation of constitutional words and phrases. Originalism can be contrasted with a much more modern view which Kirby J described as the ‘living force’ approach to constitutional interpretation. This is the view that ‘the Constitution is to be read according to contemporary understandings of its meaning, to meet, so far as the text allows, the governmental needs of the Australian people’: Eastman v R [2000] HCA 29 at [242]. If this approach is taken, a strong argument can be mounted that the term ‘marriage’ in the Constitution is broad enough to include unions such as same-sex marriages. In Re Wakim; Ex parte McNally (1999) 24 Fam LR 669 at 685 McHugh J stated that: … in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union between two people to the exclusion of others.

[page 24] Irrespective of the meaning of marriage for the purposes of the Commonwealth Constitution, as we shall see in Chapter

3, the Federal Government passed legislation in 2004 stating that for the purposes of the FLA, marriage does not include samesex unions. 2.27 The High Court recently revisited the Constitutional definition of marriage and affirmed s 51(xxi) as the source of power available only to the Commonwealth Government. The High Court held that the Marriage Equality (Same Sex) Act 2013 (ACT) cannot operate concurrently with the federal Marriage Act 1961 (Cth). The court did not, however, find that the power in s 51(xxi) is confined to the narrow definition contained in the Marriage Act 1961 (Cth). The following is a synopsis provided by the High Court in the matter of Commonwealth v Australian Capital Territory [2013] HCA 55 where it was stated: [T]he High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that 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. The Court held that ‘marriage’ in s 51(xxi) of the Constitution refers to consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. ‘Marriage’ in s 51(xxi) includes a marriage between persons of the same sex.

The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia.

Children and the marriage power 2.28 It would appear that the only children who ordinarily come within the scope of the marriage power are children of a marriage in the sense of the natural children of a husband and a wife (whether born before or during marriage), and any children adopted by a husband and wife.

In Marriage of Cormick; Salmon (Respondent) (1984) 9 Fam LR 880 at 883; FLC ¶91-554 Gibbs CJ stated: The parliament cannot bring a case within s 51(xxi) by deeming a child to be a child of a marriage if the necessary connection between the child and the marriage does not in truth exist. It would be a fundamental misconception of the operation of the [page 25] Constitution to suppose that the parliament itself could effectively declare that particular facts are sufficient to bring about the necessary connection with a head of legislative power so as to justify an exercise of that power. It is for the courts, and not for the parliament, to decide on the validity of legislation, and so it is for this

court to decide in the present case whether there is in truth a sufficient connection between the institution of marriage and a law which treats as a child of the marriage a child who is not in fact the natural or adopted child of either party to the marriage …

2.29 In order to understand the reasoning of the High Court on this matter, it must be appreciated that the law of guardianship and custody concerns relationships between the child and one or more adults that are exclusive. (The terminology of guardianship and custody are no longer used under the FLA. We now, rather awkwardly, speak of ‘with whom a child will live, and with whom a child will spend time’ and the broader notion of parental responsibility. This aspect of the parent/child relationship will be discussed at length in Chapter 5.) The members of the High Court in Marriage of Cormick, led by Gibbs CJ, said that the marriage power cannot justify a law relating to the guardianship or custody of any children other than the natural or adopted children of parties to a marriage because if it did the law would concern exclusive relationships between parties to a marriage and children who were not in any real sense the children of the marriage. Such a law would be too remote from the institution of marriage for the purposes of s 51(xxi): per Gibbs CJ at 881. There are many cases pointing to the fact that the marriage power cannot be used to regulate obligations involving strangers to the marriage. When the High Court refers to ‘a stranger’ to the marriage it means a person who is not a

parent or blood relative of the child but seeks orders in relation to that child.

In V and V (1985) 10 Fam LR 151 at 159; FLC ¶91-616 Dawson J stated: Marriage is a relationship which governs the rights and obligations of the partners to the marriage. They are mutual rights and obligations which exist between the marriage partners. Marriage does not give rise to obligations towards strangers to the marriage nor does it give rise to any obligations on the part of strangers … A law which, other than in an incidental way, purports to define or regulate, not the marriage relationship, which exists between the parties inter se, but the relationship between the marriage partners and strangers to the marriage, may be a law with respect to married persons but it will not be a law with respect to marriage.

It appears that the key to understanding the decisions made by the High Court in respect of children other than children of the marriage lies in the reluctance of the High Court to impinge on third party rights by use of the marriage power. [page 26]

States’ referral of family law powers to the Commonwealth

2.30 A great deal has changed since the early years of the narrow application of the provisions of the FLA. In the last 20 years the states and territories have shown a considerable will to refer some of their legislative powers to the Commonwealth. As a result of these several referrals of power by the states and territories, family law and the jurisdiction of the family court have been enriched. One of the more exciting developments in family law during the period 1986–90 was the referral to the Commonwealth of state legislative powers in respect of children by five states: New South Wales, Queensland, South Australia, Tasmania and Victoria. This referral of powers was made pursuant to s 51(xxxvii) of the Constitution. Section 51(xxxvii) enables the parliament to make laws with respect to ‘matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States’. The Acts referring state family law powers in relation to children to the Commonwealth are as follows: Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); and Commonwealth Powers (Family Law — Children) Act 1986 (Vic). These referrals of power were taken up by the Commonwealth in the Family Law Amendment Act 1987 (Cth). In summary, the legislation has the effect of referring

state powers with respect to guardianship (parental responsibility), custody (with whom the child lives), maintenance (child support) and access (with whom the child spends time) in relation to ex-nuptial children to the Commonwealth. The referral leaves state jurisdiction to deal with adoption (except in Victoria) and state child welfare legislation. We will again discuss jurisdictional matters in relation to children in Chapter 5.

A further referral of states’ power — de facto financial matters and other measures 2.31 Because of the limits on the power of the Commonwealth under the Constitution, the original 1975 version of the Commonwealth’s Family Law Act could deal only with the property and financial arrangements generally of a married couple experiencing a marital breakdown. Unmarried people with these issues were obliged to seek a remedy from a state court under state legislation without recourse to a federal court. Thus they were denied access to the comprehensive legislation under the FLA. The situation is now [page 27] more equitable and reflects an extended notion of the definition of family in society. The Commonwealth, on 10 November 2008, passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This

bill relied on referrals of power by states to the Commonwealth. The majority of states and territories referred their powers and the new Act, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), was assented to on 21 November 2008. The new Act commenced operation on 1 March 2009 and at that time applied to couples whose de facto relationship had a geographical connection with the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, Tasmania, Victoria and Norfolk Island. South Australia has since referred its power which came into effect as of 1 July 2010. Western Australia is now the only non-referring state. The primary impact of this legislation is to bring financial disputes arising out of the breakdown of de facto relationships (of same- and opposite-sex) under the FLA. As a consequence of this new legislation, de facto couples now have access to courts exercising federal family law jurisdiction (for example, Family Court of Australia and Federal Circuit Court of Australia) in property and maintenance matters. It should be noted that, although for many years de facto couples were able to apply to courts exercising federal jurisdiction under the family law regarding parenting matters, they could only apply to state or territory courts under relevant state or territory laws regarding property and financial matters. The new laws enable the Family Law Courts to order a division of any property that the couple own, either separately or together with each other. Superannuation that each partner has can also be split (married couples have been

able to split superannuation since 2002). Spouse maintenance can also be ordered (not previously possible in Queensland or, until very recently, in Victoria).

Same-sex de facto partners 2.32 In 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the 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) amended a total of 84 Commonwealth Acts to remove differential treatment of same-sex couples and their children in the areas of tax, superannuation, Pharmaceutical Benefits Scheme and Medicare safety nets, aged care, veterans’ entitlements, immigration, evidence, child support, social security, workers compensation entitlements and family law. As a result of that legislation, same-sex de facto couples in Australia have the same family law rights as opposite-sex de facto couples, provided the relationship broke down after 1 March 2009 (in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, Tasmania, Victoria, and Norfolk Island) and as of 1 July 2010 in South Australia. The new legislation covering de facto couples largely mirrors the legislation applicable to married couples. On the case law to date there does not seem to be any difference in approach between the law for married persons [page 28]

and those in a de facto relationship. In addition to financial matters being heard under the provisions of the FLA, samesex partners are treated the same as opposite-sex couples and married couples in relation to children’s issues in the Family Court. The amendments to the FLA in relation to de facto property will be discussed in greater detail in Chapter 9. In that chapter we will also consider want of jurisdiction in the matter of Locke and Norton [2013] FCCA 1154 where injunctive orders concerning real property were made for the benefit of the applicant (Ms Locke). The orders were interim pending a full hearing of the matter. No declaration was made concerning the existence or otherwise of the de facto relationship alleged by the applicant and denied by the respondent. The respondent (Mr Norton) appealed the orders of the lower court to the Full Court of the Family Court. The Full Court in Norton and Locke [2013] FamCAFC 202 overturned the orders of the lower court by finding that prior to making substantive orders jurisdiction must be established by way of a declaration of the existence of a de facto relationship (at [13]). See also Ting and Fingal [2013] FamCA 29.

Cross-vesting of jurisdiction The position before 17 June 1999 2.33 Cross-vesting is a process by which one superior court may exercise the jurisdiction of another. The Federal Court, the Family Court, and all of the state and territory Supreme

Courts were part of a cross-vesting scheme, constituted by the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), and almost identical state and territorial legislation of the same name. These Acts enabled proceedings to be transferred to another court if it appears more appropriate to do so or it is in the interests of justice. 2.34 Generally speaking, there were three circumstances which required the transfer of proceedings from one court to another under the cross-vesting legislation. The first is where there were related proceedings in the other court. The second is where it was more appropriate for the other court to determine the issue. The third is where it was in the interest of justice that these proceedings be determined by another court. The three circumstances are separate, although they often overlap. This was so in Marriage of Chapman and Jansen (1990) 13 Fam LR 853 at 867–8; FLC ¶92-139. 2.35 Once the conditions prescribed for the transfer of proceedings from one court to another pursuant to the transfer provisions of the cross-vesting legislation appear to have been fulfilled, the court must order a transfer regardless of the wishes of the party: Marriage of Morgan (1997) 22 Fam LR 79; FLC ¶92-760. Space does not allow a more detailed discussion of this area of law but the following cases are relevant: Kenda and Johnson (1992) 15 Fam LR 369; (1993) FLC ¶92331; Marriage of Kozma; Official Trustee in Bankruptcy (1992) 15 Fam LR 801; (1993) FLC ¶92-337; and Marriage of Canik; Ceylan; Oakley Thompson & Co (1995)

FLC ¶92-589. [page 29]

The demise of cross-vesting 2.36 In 1999, the High Court of Australia found that stateto-federal transfers of jurisdiction pursuant to the crossvesting scheme were unconstitutional. This finding curtailed the powers of the Family Court. Until the decision in Re Wakim; Ex parte McNally (1999) 24 Fam LR 669, one very encouraging use of cross-vesting legislation was in connection with family violence. Claims for damages, usually for assault and battery, were heard by the Family Court alongside applications for orders under s 79: see Chapters 8 and 10. Such dual applications, however, are now a thing of the past. On 17 June 1999, the High Court of Australia concluded that the cross-vesting legislation did not validly confer state jurisdiction on federal courts.

In Re Wakim, above, a matter quite unconnected with family law, a question for determination by the High Court was whether the cross-vesting scheme by which state judicial powers were conferred on federal courts, implemented by cooperative legislation enacted by the Commonwealth, state and territory parliaments, was valid. The High Court found that the cross-vesting scheme was constitutionally invalid. The judgments in the case are many

pages long and for the most part have little relevance to the study of family law. The judgment of McHugh J, however, contains a passage which underscores the convenience for a family law litigant of having all aspects of a matrimonial breakdown heard in the one court. His Honour stated (at 681–2): It would be very convenient and usually less expensive and time-consuming for litigants in the federal courts if those courts could deal with all litigious issues arising between the litigants, irrespective of whether those issues have any connection with federal law. From the litigant’s point of view that is saying a great deal. But unfortunately, from a constitutional point of view, it says nothing. The deficiencies and complexities of federal jurisdiction have been pointed out many times before … The inability of the federal courts to exercise crossvested state jurisdiction in the manner provided for under the present legislation simply shows another deficiency in the system. I do not think that it can be seriously doubted that, if Australia is to have a system of federal courts, the public interest requires that these courts should have jurisdiction to deal with all existing controversies between litigants in those courts.

As a result of the decision in Re Wakim, the Family Court no longer has vested in it the civil jurisdiction of the Supreme Court of the states or the state jurisdiction of the Family Court of Western Australia. The decision, however, did not impugn the validity of the cross-vesting of jurisdiction between Federal Courts. Thus, the Family Court can still exercise the cross-vested jurisdiction of the Federal Court and

the Federal Circuit Court in relation to matters transferred to the Family Court. [page 30] 2.37 Despite the egalitarian views of McHugh J, above, it was noticeable that the Family Court was not entirely comfortable hearing matters with elements of state law intermingling with the provisions of the FLA in any event. The following case illustrates this proposition very clearly indeed.

In Marriage of Kennon (1997) 22 Fam LR 1 (a case involving considerable physical injury to the wife which will be discussed in several chapters of this book), Fogarty and Lindenmayer JJ expressed doubts as to whether the Family Court is the correct forum for hearing matters of state law such as tortious actions for damages. In that case, the wife applied to the Family Court for property orders under s 79 of the FLA and for damages in respect of assaults by the husband alleged to have occurred during the marriage. The trial judge awarded the wife damages totalling $43,000. The wife appealed to the Full Court on questions which are not relevant to issues of cross-vesting, but in the course of the judgment, Fogarty and Lindenmayer JJ discussed cross-vesting in the following terms (at 9–10): The developing practice of including a claim for damages in family law proceedings via the cross-vesting scheme can have some advantages and is now occurring more frequently. They involve only the one proceeding instead of two and may be less expensive and quicker overall. However, this practice also creates

difficulties and produces results which overall may not be satisfactory. It involves the simultaneous or virtually simultaneous hearing of two claims with different dynamics and which serve different purposes. It does not necessarily follow that this court will in all such cases consider it appropriate to adjudicate the crossvested issue. It may consider that it is more appropriate to transfer the proceedings to a state court for determination. In any event, before it can be heard in this court it is necessary for there to be a proceeding within the original jurisdiction of this court to which it is attached. Whilst in theory any claim under the Family Law Act may be sufficient, it seems to us likely that it could only be attached to a s 79 claim. It may be difficult to envisage a case where there would be a sufficiently relevant connection (aside from the identity of the parties) between a common law action for damages and applications under the Family Law Act such as divorce, parenting orders, child support or even spousal maintenance. In those cases the relevant connection may be so tenuous that it would ordinarily be expected that the Family Court would decline to entertain it and would transfer it.

2.38 Given this apparent ambivalence on the part of the Family Court to deal decisively with the matter of domestic violence, and the decision of the High Court in Re Wakim, it may be argued that the future bodes ill for spouses, women in particular, looking to the Family Court for a remedy in tortious damages where violence resulting in personal injury is a factor. Equally it must be acknowledged that the notion

of seeking damages, whether in contract or tort, sits uneasily with the ‘no fault’ scheme under the FLA. The cases following reflect, on the one hand, the provisions under the FLA removing impediments to one spouse suing the other, while on the other showing a marked reluctance to judicially entertain such suits. [page 31]

The matter of Magill v Magill [2006] HCA 51; (2006) 226 CLR 551; 231 ALR 277; 81 ALJR 254; 36 Fam LR 1 before the High Court of Australia concerned a husband suing his wife for damages in the tort of deceit. He took the action on the grounds that he was the victim of paternity fraud perpetrated by his wife. The matter was heard before Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. In handing down a judgment the High Court found against the husband but at the same time gave no credence to the arguments made on behalf of the wife. Nor does the High Court make plain whether, without benefit of cross-vesting, the Family Court might nevertheless assume jurisdiction in an action by one spouse against the other in tort or contract. Despite the fact that the parties before the High Court were correctly ‘the appellant’ and ‘the respondent’, the convention of the Family Court whereby parties are referred to as the husband and the wife will be used in discussing this matter. In January 2001, the husband brought an action against the wife in the County Court of Victoria. The cause of action was the tort of deceit. The damages claimed were of two kinds. First, the husband alleged that he had suffered personal injury, in the form of anxiety and depression, in consequence of the wife’s

fraudulent misrepresentations. Second, he claimed financial loss, including loss of earning capacity by reason of his mental or psychological problems, and loss related to the time he had spent with, and money he had spent on, the children under the mistaken belief that he was their father. He also claimed exemplary damages. The husband succeeded at trial, and was awarded damages of $70,000: being $30,000 for general pain and suffering, $35,000 for past economic loss and $5,000 for future economic loss. This did not include any amount by way of exemplary damages. The decision of the trial judge was reversed by the Court of Appeal of the Supreme Court of Victoria (Ormiston, Callaway and Eames JJA) on the grounds that the husband had failed to establish the essential elements of the tort of deceit. The husband appealed to the High Court, seeking the restoration of the original award of damages. In the High Court it was argued on behalf of the wife that the action by the husband was misconceived and that even if (contrary to the opinion of the Appellate Court of the Supreme Court of Victoria) all elements of the tort of deceit had been made out, the remedy pursued by the husband was not available as s 119 of the FLA, which permitted one party to a marriage to sue the other in tort, did not apply to the tort of deceit. Alternatively, it was argued that s 120 of the FLA precluded an action for deceit based on a false representation of paternity. The appeal by the husband failed. The court found per curiam: (i)

The Court of Appeal was correct in concluding that the elements of actionable deceit were not made out. This was on the basis that unless it can be said that there was a legal or equitable duty to disclose the truth, the wife’s silence did not amount to a representation. There was currently no recognised legal or equitable obligation, or duty of care, on a spouse to disclose an extramarital sexual relationship to the other spouse during the course of a marriage. There may have been a duty of disclosure when the matter of child

support payments arose. The husband, however, was not claiming to recover the child support payments and the trial judge had not found on that basis. The husband’s [page 32] actions after the births of the second and third children were explained by the continuance of an assumption about the nature of his marital relationship, not any reliance by the husband upon the accuracy of what was said or done in connection with registering their births: at [4], [35], [42], [43], [47], [49], [130], [135], [146], [154], [167]–[172] and [250]. (ii)

The wife’s argument that s 119 or s 120 of the Act precluded an action for deceit based on a false representation of paternity was without substance. There was nothing on the face of s 119 which suggested that there was a continuing spousal immunity in relation to some torts, specifically deceit, and not others. Section 120 did not encompass, or expressly or impliedly forbid, the husband’s action for deceit. The section did not have the effect of preventing one spouse from suing another for deceit even though the terms of s 120 supported the argument that such an action would not seem consistent with the general legislative purpose of the Act: at [4], [95], [102]–[103], [137], [186] and [251].

(iii) Per Gummow, Kirby, Crennan JJ: False representations concerning an extramarital sexual relationship or its consequences made by one spouse to another during the course of a marriage were not actionable in deceit. Parliament passed legislation governing divorce in which the determination of fault between spouses, including inquiry into their extramarital sexual conduct, was no longer the province of the law. The relevant legislation also facilitated

accurate determination of paternity and permitted the recovery of amounts wrongly paid for child support. Further, conduct that constituted a breach of promise of sexual fidelity and any consequential false representation about paternity, occurring within a continuing sexual relationship that was personal, private and intimate, could not be justly or appropriately assessed by reference to bargaining transactions with which the tort of deceit was typically associated: at [86]–[88], [133].

In Yen and Yen (2010) 42 Fam LR 691; [2010] FamCA 1, heard in the Family Court before Cronin J, the husband sought to have an action in tort brought against him by the wife in the Magistrates Court at Wodonga adjudicated as part of the family matter before the court. Although the husband brought the matter on the basis of the accrued jurisdiction of the Family Court rather than any reliance on cross-vesting, it illustrates the reluctance of the Family Court to deal with matters that are essentially those of the state courts. Cronin J did not say emphatically that the Family Court would never hear an action in tort but the judgment suggests a considerable unwillingness to do so. The wife, Ms Yen, and the husband, Mr Yen, commenced living together in 1980 and married in 1983. They separated in 1990 but resumed living together about 12 months later. They subsequently separated on a final basis in 2006. In 2007, the wife issued proceedings for property settlement pursuant to the provisions of the FLA against the husband. On 8 December 2009, the matter was fixed for final hearing in January 2010. [page 33]

On 30 April 2009, the wife issued a claim in the Magistrates Court at Wodonga for damages in tort against the husband alleging assaults on her by him. The wife claimed that between May 2006 and August 2006 she was indecently assaulted by the husband on a number of occasions after he administered to her a sedative or drug designed to impair her consciousness. In criminal proceedings heard by a magistrate on 17 July 2008, the husband pleaded guilty to a charge of indecent assault upon the wife and was released without conviction with a fine of $2,500. He did not, however, admit the allegations particularised in the wife’s claim for damages in tort. In her claim, the wife sought damages, aggravated damages and exemplary damages totalling $100,000. After an unsuccessful mediation on 20 November 2009, the wife’s claim was fixed for final hearing in the Magistrates Court on 7 April 2010. By an application filed on 18 December 2009, the husband sought to have that tort claim heard in the Family Court as part of the property proceedings. The husband argued that the case should be heard pursuant to the court’s ‘accrued jurisdiction’. He sought that the Family Court deal with the Magistrates Court proceedings because, he argued, the same matters would be given in evidence in both courts and the wife had the same solicitors. In both matters he said the wife would not be prejudiced by the proceedings being heard in one court. The wife opposed the husband’s application. She argued that her claim for damages in tort was quite separate from any application before the Family Court. The wife succeeded in her argument. In reaching a judgment Cronin J contrasted an application for a property settlement under the Family Law Act and a common law suit in tort. His Honour drew attention to the fact that the main function of the Family Court is to adjudicate on matters plainly envisaged by the provisions of the FLA. The sections of the FLA to which his Honour refers below will be discussed in

detail in Chapters 7 and 8. Inter alia Cronin J stated (at [47]– [49]): This is a long marriage where this court’s primary role under the Act is to determine entitlements based upon factors set out in s 79. Save in respect of s 75(2)(o) to which I have referred, and the issue of conduct being irrelevant to the diminished contribution of a party, issues of conduct giving rise to compensation and damages are not matters with which this court would normally deal. Thus, an issue such as a series of assaults late in the marriage would not normally be relevant. The claim by the wife in tort is not connected to any property proceedings and the evidentiary issues are of peripheral relevance to the property proceedings. … The claim is also disparate from the property claim. It has different concepts involving issues of the duty of care. Whether that duty has been breached and what should be done to put the plaintiff in a position she should have been in but for the tort, is not a matter connected with the evidence of contribution and adjustments of the type set out in s 75(2). See also Crampton and Robinson [2013] FamCA 65 where the husband was in prison awaiting a criminal trial on very serious charges. In addition, he was the subject of a claim in tort. He applied to the Family Court to use accrued jurisdiction to hear the matter in conjunction with a claim for a property settlement under the FLA. The husband’s application to have his tortious claim heard concurrently with the parties’ property dispute was dismissed by Cleary J, the basis of the dismissal being that the state matter did not arise from the same substratum of facts as the parties’ matter under the provisions of the FLA.

[page 34] In the chapters following we will consider jurisdictional issues in many contexts and cases.

Courts exercising jurisdiction under the Family Law Act 2.39 Jurisdiction under the FLA is currently exercised by several different courts. The main courts exercising jurisdiction under the FLA are the Family Courts of Australia and Western Australia. We provide a detailed account of the jurisdiction and workings of these courts throughout this book. Prior to doing so, however, we provide an overview of the relevant jurisdictional framework. When the FLA was passed each state was given the opportunity to establish its own Family Court. Only Western Australia did so. The Family Court of Western Australia exercises federal jurisdiction and state jurisdiction. It exercises federal jurisdiction under the FLA, the Marriage Act 1961 (Cth) and under child support legislation. In relation to state jurisdiction, it deals with matters such as adoption, child welfare and ex-nuptial children. Appeals relating to the operation of federal law go to the Full Court of the Family Court of Australia, while appeals on matters of state jurisdiction go to the Western Australian Supreme Court. Decisions from the Family Court of Western Australia have the same status as family law matters heard under the provisions of the FLA in the family law courts elsewhere.

2.40 The Family Court of Australia exercises appellate jurisdiction throughout Australia and original jurisdiction in all parts of Australia except Western Australia. The Family Court of Western Australia exercises original jurisdiction in Western Australia. Other states also have power to establish their own Family Courts, however, they have elected not to do so. In the Northern Territory, both the Supreme Court of the Northern Territory and the Family Court of Australia exercise original jurisdiction under the FLA. The Family Court, however, only sits in the Northern Territory occasionally. Until 1 June 1976, the Supreme Courts of the other jurisdictions also exercised jurisdiction under the FLA. This jurisdiction was terminated by proclamation made pursuant to s 40(3) of the FLA. The Family Court of Australia exercises (exclusive) appellate jurisdiction throughout Australia, including the Northern Territory and Western Australia, in relation to orders made at first instance by courts exercising jurisdiction under the FLA. 2.41 Courts of summary jurisdiction exercise limited jurisdiction under the FLA throughout the whole of Australia except in the Perth metropolitan area where jurisdiction under the Act is exercised only by the Court of Petty Sessions. The Federal Circuit Court has also been vested with concurrent jurisdiction under the FLA. The jurisdiction vested in these courts relates to routine matters that would otherwise need to be dealt with by the Family Court. [page 35]

Background to the Family Law Act and the Family Court of Australia 2.42 The primary object of the FLA was to reform the law governing the dissolution of a marriage. It was also a response by the government at the time to what it perceived as a lack of satisfaction with the existing system. Despite controversy and opposition from more conservative members of society, the Act finally came into force on 5 January 1976. It replaced the Matrimonial Causes Act 1959 (Cth) and superseded state and territory laws about ‘guardianship, custody, access and maintenance of children of a marriage’. 2.43 The Family Court of Australia was created by the FLA to interpret and apply that law to individual cases. This initiative was aimed not only at improving the manner in which separation and marriage dissolution were managed, but also aimed at providing specialised facilities and services concerned with the welfare of children of the separating couples. The Act envisaged that the new court would have: judges who were particularly qualified to handle family law matters; counselling and conciliation services; child minding facilities; and circuit services allowing people in rural areas access to the court. The court also has jurisdiction in some matters under other

legislation such as the Marriage Act 1961 (Cth) and laws relative to child support. The jurisdiction and the administration of the court has changed over time as a result of changes to the FLA, in response to recommendations of reviews both internal and external, and as a result of the creation of the Federal Circuit Court.

The main changes introduced by the Family Law Act 2.44 The Act introduced changes to the way divorce was dealt with: Fourteen grounds for divorce were replaced with one ‘no fault’ ground, this being the irretrievable breakdown of the marriage demonstrated by a minimum period of 12 months during which the parties lived ‘separately and apart’. Previously, evidence had to be given to the court to show that one party had been guilty of misconduct such as adultery or cruelty, habitual alcoholism, desertion or insanity, or that there had been a five-year separation. Fault, or ‘guilt’, was no longer to be a consideration in deciding with whom the children should reside or what maintenance might be paid. The Family Court of Australia was created — one court established to administer the Act but with the option for each state to set up its own state court to administer the Act (Western Australia was the only state to do this). [page 36]

The importance of counselling to assist couples who were in the process of separation and divorce was highlighted and this service was attached to the court. The welfare of the children was made the most important consideration. The publication of information that identified parties or witnesses in a case was prohibited unless one of the exceptions listed in the Act applied. Courts were ‘closed’ (this provision was subsequently repealed in 1983). Procedures were simplified and formality reduced — no wigs or gowns (which had been introduced in 1987) were to be worn by judges or barristers.

Amendments to the Family Law Act 2.45 There have been a number of amendments to the Act. The Family Law Reform Act 1995 (Cth), which came into force on 11 June 1996, amended significant sections relating to children. The changes included the introduction of orders encompassing the concepts of ‘parental responsibility’, ‘residence’, ‘contact’ and ‘specific issues’. These changes recognised the desirability of continuing joint responsibility and cooperation in parenting after separation or divorce. Amongst the most far-reaching in legalistic and philosophical terms, however, were the amendments to the FLA brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

The Hon Diana Bryant, Chief Justice of the Family Court of Australia, explained at the 12th National Family Law Conference in Perth in 2006 that the amendments would provide: 1.

a greater emphasis on shared parental responsibility;

2.

the establishment of a network of Family Relationship Centres;

3.

the creation of a combined ‘Family Law Registry’ for the Family Court of Australia and the Federal Circuit Court; and

4.

a less adversarial approach to children’s cases.

A further landmark amendment occurred with the passage of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). In discussing the inclusion of de facto relationships under the mantle of the FLA, Attorney-General Robert McClelland, for the Rudd Government, in a press release on 16 October 2008, stated: These reforms are long overdue. They will end current arrangements which place a huge administrative and financial burden on separating de facto couples. De facto couples have been waiting six years for the Commonwealth to accept references of power from the States and Territories to simplify the laws and provide greater protection. Consistent with the Government’s policy, the legislation will not discriminate between opposite-sex and same-sex de facto couples.

[page 37]

Nothing in the legislation, however, suggested any change to the definition ‘of one man and one woman’ with regard to a valid marriage in Australia.

The Federal Circuit Court (previously known as the Federal Magistrates Court) 2.46 The Federal Magistrates Court or the Federal Magistrates Service (the Service) was established by the Federal Magistrates Act 1999 (Cth), which received royal assent on 23 December 1999. The court commenced operation in July 2000. The court is an independent federal court of record under Chapter III of the Australian Constitution. The purpose of establishing the Service was to reduce the caseload of the Federal Court and High Court and allow for less complex matters to be dealt with more efficiently and with less cost being incurred by the parties. Section 3 of the Federal Magistrates Act provides: (1) The main object of this Act is to create the Federal Magistrates Court under Chapter III of the Constitution. (2) The other objects of this Act are: (a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and (b) to enable the Federal Magistrates Court to use streamlined procedures; and (c) to encourage the use of a range of appropriate dispute resolution processes.

2.47

In 2012 the Act was renamed the Federal Circuit Court

of Australia Act 1999 (Cth). Today approximately 80 per cent of the court’s workload is in the area of family law and over 85 per cent of family law children’s and property applications are now completed in the Federal Circuit Court. As well as providing litigants with a less expensive and more informal alternative, Federal Government initiatives encourage families to resolve disputes through alternative dispute resolution. The initiatives offer a range of means to resolve disputes out of court including conciliation, counselling and mediation in appropriate cases.

Jurisdiction of the Federal Circuit Court (FCC) 2.48 For the purposes of family law, the jurisdiction of the FCC is concurrent with that of the Family Court and the Federal Court. Therefore, in addition to having jurisdiction in proceedings under the FLA, Marriage Act, Child Support (Registration and Collection) Act 1988 (Cth) and Child Support (Assessment) Act 1989 (Cth), the FCC has jurisdiction in matters of administrative law, bankruptcy, unlawful discrimination, consumer protection and trade practices, privacy, migration, copyright, industrial law and admiralty law where the Federal Court has jurisdiction. The FCC does not have an exclusive jurisdiction. Where more complex family law matters are filed in the FCC, they can be transferred to the Family Court (pursuant to s 39 of the Federal Circuit Court of Australia Act). Further, the Family Court may transfer less complex matters to the Federal Circuit Court pursuant to s 33B of the

[page 38] Federal Circuit Court of Australia Act. Since November 2003, an application for a divorce order must only be filed in the Federal Circuit Court. The jurisdiction of the Federal Circuit Court with regard to family law can be summarised as follows: 1.

divorce (but not declarations as to validity of or orders for nullity of marriage) — jurisdiction in matrimonial causes;

2.

parenting of children (including where children live and with whom they spend time);

3.

declaration and adjustment of property interests (including third party interests, bankruptcy issues and superannuation);

4.

maintenance for children not covered by the Child Support (Assessment) Act, adult child maintenance and maintenance for spouses; and

5.

enforcement of court orders made pursuant to the FLA.

The doctrine of forum non-conveniens 2.49 The word ‘globalisation’ is attached to many aspects of modern life. Ease of movement on an international scale affects all kinds of trade and commerce. Equally, however, the breadth of jurisdiction of the Family Court and the Federal Circuit Court may be called into question in the matter of family law disputes with a foreign element. Such

matters may concern children, divorce, property or indeed any aspect of a remedy sought under the provisions of the FLA. This is particularly so in a society such as Australia having in its population many migrants who maintain significant links with their country of origin. The possession of property in another country further muddies the waters with regard to the jurisdictional aspects of a matter. In short, the question is which court in which country is the best forum (‘forum conveniens’)? In some matters the Australian courts may identify ‘forum shopping’ which in informal terms refers to the efforts by some litigants to have their legal matter heard in the court thought most likely to provide a favourable judgment. Equally it may simply be a way of discomfiting or harassing the other party to the proceedings by being — in legal terms — ‘vexatious or oppressive’. It is rare for a court to surrender its jurisdiction even where one party asserts that the matter should more correctly be decided in a different forum. This was the position in a matter recently before the Family Court.

In essence the question to be decided by the court was whether the Family Court had jurisdiction under the FLA to hear the proceedings in Deslandes and Deslandes [2015] FamCA 913 or whether the Australian Family Court was a ‘clearly inappropriate forum’. The matter concerned an application by the wife for a property settlement pursuant to s 79 of the FLA. The husband sought that the proceedings be permanently stayed on the basis of Australia being a clearly inappropriate forum. The husband and wife had lived in France for five years, sailed around the world for

[page 39] four and a half years and later lived in Australia for about four years. Both parties gave evidence that Australia was to be a permanent home. The parties had not lived in France since 2007, nor did they have any assets in that country. The parties’ assets were located in Australia. Those assets included: 1.

a yacht, which the husband valued at $300,000;

2.

a Queensland Treasury bond of $750,000; and

3.

the business interests of each of the parties via their respective businesses or corporations.

The husband and wife had, however, entered into a prenuptial agreement under French Civil Law which did not include any clause or term to the effect that the parties submit exclusively to the courts of France to determine any financial issues. Nor had either party initiated proceedings in France. In order for the husband to succeed in having the financial aspects of the matter stayed he had the onus of satisfying the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558 in order to persuade the Family Court that it was a clearly inappropriate forum in which to make the s 79 orders sought by the wife. The husband had, nevertheless, made an application under the FLA for parenting orders, thus invoking Australia’s jurisdiction. In relation to this Kent J stated: ‘It is of central importance to note that in responding to the wife’s application the husband seeks parenting orders pursuant to Part VII of the Act. In circumstances where the husband has himself invoked this Court’s jurisdiction to make parenting orders pursuant to the Act, it is contradictory for the husband to contend that this Court is a clearly inappropriate forum’ (at [35]). Having decided that the husband had not satisfied the onus of establishing the Family Court as a ‘clearly inappropriate forum’, Kent J ordered the

proceedings to be further heard (in relation to s 79 FLA) in the Federal Circuit Court.

In Gatto and Norton [2012] FMCAfam 1175 the wife filed a response to the husband’s divorce application on the ground that Australia was a ‘clearly inappropriate forum’ within the meaning of the test laid down by the High Court in Voth v Manildra Flour Mills Pty Ltd (above) and that the parties should be divorced in India. The wife argued two issues, being: (a) whether the law in India would recognise an Order for Divorce made under the … Family Law Act 1975; and (b) if the Divorce Order would not have effect in India, the appropriateness of this court granting the husband’s Application for a divorce. [at [3]]

Upon reviewing the evidence and relevant law, Scarlett FM said (at [59]) that ‘neither party would appear to have a ground for a petition for divorce under s 27 of [the Indian Special Marriage Act 1954]’ but that under s 28 of that Act ‘relief would be available to the parties by means of a joint petition to the District Court in India’ (at [64]). Scarlett FM continued (at [65]): However, the facts of this case are that the parties have chosen to live permanently in Australia and the husband has chosen to become a citizen of this country. It does not follow, despite the submission on behalf of the wife, that because

[page 40]

the parties were married in India under the provisions of the Special Marriage Act, that the only way that the marriage should be dissolved is by a court in India under that same Act. The parties have chosen to live in Australia and have chosen to submit to the jurisdiction of this Court in respect of their property and parenting proceedings.

In relation to remarriage and a fear of committing bigamy if indeed the matter ought to have been heard in a relevant Indian Court, Scarlett FM stated (at [66]–[67]): No evidence has been presented to show that either party would be in jeopardy of a prosecution for bigamy if he or she were to remarry in Australia under Australian law. What jurisdiction would an Indian court have if the husband, an Australian citizen, were to marry in Australia? If the wife were to be divorced under Australian law and remarry in Australia, would an Indian court have any jurisdiction in respect of a charge of bigamy? The likelihood of such a prosecution being brought would seem to be remote, at best. The wife has not established that this court is a clearly inappropriate forum. This court has jurisdiction and should proceed to exercise it.

2.50 It should be noted that the Family Court of Australia retains exclusive jurisdiction in the following areas: 1.

proceedings for a decree of nullity of marriage;

2.

proceedings for a declaration as to the validity of marriage or annulment of a marriage by decree;

3.

appeals from courts of summary jurisdiction;

4.

appeals from the Federal Circuit Court which are matters litigated pursuant to the FLA;

5.

6.

transfers from courts of summary jurisdiction (state courts): s 46 of the FLA provides for the transfer of proceedings from a court of summary jurisdiction in some cases. It provides that where proceedings are instituted in a court of summary jurisdiction in relation to property of a total value exceeding the ceiling amount and the matter is contested, the court must transfer the proceedings to another court (including the Family Court, or Supreme Court or Federal Circuit Court) unless each of the parties consent to the court hearing; and leave to grant adoption proceedings: s 60G of the FLA.

The Family Court of Western Australia 2.51 When the FLA was enacted, a provision was inserted to enable states to set up family courts of their own on similar lines to the Family Court of Australia, and with the object of carrying out the same functions as that court: s 41. Western Australia was the first, and so far the only, state to avail itself of this opportunity. The Family Court of Western Australia, created by the Family Court Act 1975 (WA), came into being on 1 June 1976. [page 41]

Problem question Larry was born in Ireland and met his Australian-born wife Maggy while holidaying in Melbourne in 2000. Larry swept Maggy off her feet and the couple were married in Dublin,

Ireland on 23 February 2004. For two years they lived a very happy life at ‘Lucyville’, their property in Burwell, a suburb of Dublin. Maggy was an established ophthalmologist who was becoming increasingly disenchanted with the Irish health system. In January 2006, she decided to take up a one-year posting at the Eye and Ear Hospital in East Melbourne. She was quite homesick at this time and longed to return to the cosmopolitan city of Melbourne where she was born and bred. On 23 September 2006, Larry flew to Australia to celebrate their wedding anniversary. Maggy was certain that she could not return to life in Ireland and asked Larry to organise the sale of ‘Lucyville’ and stay with her to live in Australia. Larry was furious and said he would never leave his beloved Ireland and if she did not return home with him the following morning, she could consider their relationship to be over. Maggy decided to forego her life with Larry for her flourishing career in Melbourne. In July 2007, while operating on the detached retina of a patient, Maggy met Andrew, the anaesthetist for the procedure. Andrew proceeded to wine and dine her out of her melancholic state, brought on by the failure of her marriage. Although reluctant to become involved with another man, Maggy nevertheless moved into Andrew’s South Melbourne apartment in December of that year when she discovered that she was pregnant. On 8 August 2008, Maggy and Andrew’s son James was born at the Royal Melbourne Hospital. However, the new arrival was not enough to steady their deteriorating relationship and Maggy left the apartment with James in October of that year. Advise Maggy as to whether the Family Court of Australia has jurisdiction to: 1.

determine her application for a divorce from Larry; and

2.

determine her application for final orders in relation to with

whom the child will live and with whom the child will spend time.

Suggested answer Introduction Maggy’s scenario raises issues both broad and discrete in nature. The first issue is whether the Family Court has jurisdiction to grant a divorce between Larry and Maggy, notwithstanding that the parties were not married in Australia, and Larry has never lived in Australia. The subplot to the scenario, with the emergence of Andrew and James, raises the distinction drawn in the family law context between de jure marriage and de facto relationships. Both aspects of the scenario not only require examination of the constitutional basis of the relevant parts of the FLA, but also the jurisdictional requirements which must be satisfied to issue the respective applications. [page 42] 1.

Maggy v Larry

(a) Constitutional issues Section 51(xxii) of the Commonwealth Constitution is comprised of two limbs and the primary head of power contained in the first limb enables parliament to make laws with respect to ‘divorce and matrimonial causes’. This express power provides the constitutional basis for the legislative provisions in the FLA, which have a clear relationship to divorce. This would, for example, include the conditions which must be satisfied before

the court will dissolve the marriage. The word ‘divorce’ in s 51(xxii) has been consistently interpreted to mean dissolution of marriage, which was the term previously employed in the FLA. Presuming that she is legally married to Larry, Maggy satisfies the first hurdle in that she is able to establish a clear and legitimate constitutional basis for the provisions contained in the Act, which outline the prerequisites and establish the mechanisms which enable her to dissolve her marriage. (b) Jurisdictional requirements Based on this constitutional authority, s 31(1)(a) of the FLA invests the Family Court of Australia with jurisdiction in respect of ‘matrimonial causes’. Section 4(1)(a)(i) of the Act defines matrimonial causes to include proceedings for a divorce order. Section 39(3) of the FLA enumerates the jurisdictional requirements which prevail for the institution of proceedings for divorce. They stipulate that on the date that the application for the decree of divorce is filed with the Family Court, either party to the marriage: (a) is an Australian citizen; or (b) is domiciled in Australia; or (c) is ordinarily resident in Australia and has been an Australian resident for one year immediately preceding the date of the application. Maggy is likely to be successful in having her application for divorce heard by the Family Court as, on the available facts, it is probable that she would satisfy each of the three alternative jurisdictional criteria. (i) Section 39(3)(a) — citizenship Although the fact scenario does not state this conclusively, Maggy is likely to be categorised as an Australian citizen by birth as defined by s 12(1) of the Australian Citizenship Act 2007 (Cth). This section

provides that she qualifies as an Australian citizen if, at the time of her birth, one of her parents was an Australian citizen or permanent resident, or if she has been ordinarily resident in Australia for a period of 10 years since her date of birth. Given that the fact scenario instructs that Maggy was ‘born and bred’ in Australia, and there is no indication on the facts that she renounced her citizenship while living in Ireland, it is most likely that she will be able to make out this ground specified in s 39(3) (a). (ii) Section 39(3)(c) — residence However, in the event that Maggy is not categorised as an Australian citizen, it is also likely on the facts that she would be able to satisfy the alternative jurisdictional requirement whereby she is ordinarily resident in Australia and is resident for one year immediately preceding the date of the application: s 39(3)(c); see also Marriage of Woodhead (1997) 23 Fam LR [page 43] 559; (1998) FLC ¶92-813. Section 4(1) of the FLA indicates that the term ‘ordinarily resident’ includes the term ‘habitually resident’ which includes ‘a voluntary residence with a degree of settled purpose’ or an arrangement giving rise to permanent or indefinite residence: Kapur v Kapur [1984] Fam Law R 920. Apart from the brief period spent in Ireland, there is no indication on the facts that Maggy was ordinarily resident in any country other than Australia, and in fact one can maintain residence in a particular jurisdiction notwithstanding absences, even for an extended period of time. On the basis that Maggy: was born and grew up in Australia; lived in Australia for a considerable period;

spent a relatively short amount of time in Ireland before returning to live in Australia in 2006; and established a career in the Australian health care industry and has remained here up to the present time; it is most likely that Maggy would satisfy the first limb of s 39(3) (c) and be classified as ordinarily resident, in addition to satisfying the second limb which requires her to be resident in the 12 months prior to making her application. (iii) Section 39(3)(b) — domicile While most applications for a divorce order would satisfy jurisdictional requirements on the basis of citizenship or residence, jurisdiction may be based on the husband’s domicile. It is likely that Maggy would be able to establish that Australia is her domicile of origin (based on her parent’s/parents’ domicile) or her domicile of choice (that is, abandoning any previous domicile, she intends to fix Australia as her permanent place of residence and is giving effect to those intentions). 2.

Maggy v Andrew

The next issue raised by Maggy’s situation is whether she is able to make application to the Family Court seeking final parenting orders in relation to James. (a) Constitutional issues Neither the express incidental power contained in s 51(xxix) nor implied incidental power allows the Commonwealth Parliament to enact legislation regarding de facto couples. It cannot be said that such legislation is incidental to the execution of or subject matter in a substantive head of power. Nor can it be said that such a law would be directed to the aim or object of the divorce and matrimonial causes power (s 51(xxii)) or the marriage power (s 51(xxi)) or reasonably incidental to their realisation: Gazzo v Comptroller of Stamps (Vic) (1981) 7 Fam LR 675; FLC ¶91-101. It has been established by the High Court in Re F; Ex parte F

(1986) 10 Fam LR 940; FLC ¶91-739 that the second limb of s 51(xxii) confers on parliament the authority to make laws in relation to ‘parental rights and the custody and guardianship of infants’, however, only in the context of the first limb of the divorce and matrimonial causes power. Accordingly, this express constitutional power does not authorise legislation concerning with whom the child lives and with whom the child spends time on the separation of parties to a de facto relationship. [page 44] Similarly, the ‘marriage power’ specified in s 51(xxi) of the Constitution, which renders constitutionally valid any Commonwealth law sufficiently connected to the marriage relationship, would not empower the parliament to make provision in the FLA to cater for orders in relation to children of de facto relationships: Re Lambert; Ex parte Plummer (1980) 6 Fam LR 355; FLC ¶90-904; Fisher v Fisher (1986) 161 CLR 438; Re LSH; Ex parte RTF (1987) 11 Fam LR 805; FLC ¶91-843; Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; 36 ALJR 104. This is because the definition of marriage in s 43(a) of the FLA and ss 46(1) and 69(2) of the Marriage Act 1961 (Cth) refers only to de jure rather than de facto marriages: Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130; R v L (1991) 15 Fam LR 122; FLC ¶92-266; Fisher v Fisher (1986) 161 CLR 438; Marriage of Cormick; Respondent Salmon (1984) 9 Fam LR 880; FLC ¶91-554. Section 51(xxxvii) of the Constitution does, however, provide the Commonwealth Parliament with the authority to make laws with respect to matters referred to it by state parliaments. The Commonwealth Powers (Family Law — Children) Act 1986 (Vic) referred the Victorian Parliament’s legislative powers in relation to all children to the Commonwealth. The subsequent Family

Law Amendment Act 1987 (Cth) was enacted in response to this referral of powers by several states. As a result, the current Pt VII of the FLA provides for whom the child lives with, whom the child spends time with, and specific issues of ex-nuptial children such as James, as well as children of de jure marriages. (b) Jurisdictional requirements In order for Maggy to institute proceedings pursuant to Pt VII of the FLA, she is again required to establish a jurisdictional connection with Australia. (i) Section 69E Section 69E(1) of the Act will enable an application to be made in relation to the child James if: (a) James is present in Australia on the relevant day, the date on which the application is made or filed with the court (s 69E(2) and s 39(4A)); or (b) the child is an Australian citizen or is ordinarily resident in Australia on the relevant day; or (c) a parent of the child is an Australian citizen, is ordinarily resident or is present in Australia on the relevant day; or (d) a party to the proceedings is an Australian citizen, is ordinarily resident or is present in Australia on the relevant day; or (e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction or the common law rules of the private international law for the court to exercise jurisdiction. On the basis of the facts provided in the scenario, Maggy and James’s situation would satisfy the criteria specified in s 69E(1) (a)–(c), provided James is present in Australia when the application is filed or he or Maggy remain Australian citizens or ordinarily resident in Australia on the date the application is made or filed with the court.

[page 45]

Further discussion 1.

Why are the Commonwealth legislators constrained in their power to make laws in relation to the family?

2.

What has been the impact of the relevant High Court decisions on the powers conferred on the federal legislators?

3.

Discuss cross-vesting legislation in light of the High Court decision in Re Wakim; Ex parte McNally (1999) 24 Fam LR 669.

_______________________ 1

Commonwealth of Australia, House of Representatives, Parliamentary Debates (Hansard), 18 March 1902, p 10967.

[page 47]

3 Marriage Marriage is the earliest fruit of civilization and it will be the last. I think a man and a woman should choose each other for life, for the simple reason that a long life with all its accidents is barely enough for a man and a woman to understand each other; and in this case to understand is to love. William Butler Yeats (1865–1939), Irish dramatist, poet and writer. Winner of the Nobel Prize in Literature 1932

Introduction 3.1 In Chapter 1 of this book we spoke of the great benefits a family can and does bestow on society. It is not difficult to see that happiness in a family may stem from contentment in a partnership or marriage. Marriage is a natural institution of considerable importance, not simply to the spouses involved, but also their wider family and society as a whole. It is difficult to pinpoint exactly those factors which bind a couple together in any given marriage. In many marriages the reason for obvious contentment may be a mystery to ‘outsiders’. While not wishing to wander too far

into the realms of generalisations we do know that spending vast amounts of money on a ceremony is not the necessary key to understanding why some couples achieve long-lasting marital happiness while others fail. Nor do outward attractiveness and financial security guarantee longevity of a marriage. Some of the couples most endowed with glamour and financial superiority may have marriages of short duration. Often both the marriage and its demise are attended by extreme publicity. In contrast, we see people who married in relative privation who are still together years or even decades later. Marriage has long been established as integral to the nature of men and women. It was in the wake of World War II that ‘marriage’ was elevated to a ‘human right’. It was declared by the United Nations in 1948 that: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.1

[page 48] There is considerable research in relation to the benefits of marriage. Common sense tells us that marriage is not only important in the private domain of an individual marriage but, equally, holds great public and political significance. The social benefits of marriage are manifold and encompass men, women and children. This is undeniable and is to be celebrated. From a political viewpoint it is clear that a family which is financially and otherwise protective of its members relieves a burden from the government purse. In addition that

family has no need of the human services which may be required by those less fortunate families. It is claimed that children of parents who fit the criteria of the happily married are likely to be better behaved, academically brighter, have a university degree and live an altogether more successful life than the children of less successful relationships. According to research from America and the United Kingdom: ‘Marriage is an important social good, associated with an impressively broad array of positive outcomes for children and adults alike.’2 3.2 Dr Don Edgar, the former director of the Australian Institute of Family Studies, is very enthusiastic about the happiness that may be gained from the institution of marriage. In describing marriage, he gently stated: ‘In my view, marriage does make a difference and there ought to be more of it. The ties that bind are a liberation from doubt, uncertainty and the loneliness of spirit that besets many in the modern age.’3 This overall praise for the happily married state raises the question as to the feelings of adults who do not fit the ideal of marriage. Of even greater concern are the feelings of blameless children, born into a lack of security and having few advantages. History, however, shows that rather than the life allotted to them by statistics many such children are entirely capable in every way and triumph despite the adversity of their early circumstances. It is demeaning to children to classify them in stereotypes because they may have a less fortunate family life. 3.3

Perhaps it may be argued that entering marriage should

be made more onerous with the imposition of compulsory pre-marriage advice and counselling. It may even benefit senior school students to have some education in the practical aspects of marriage and relationships generally. There are depictions of marriage on popular television, such as Married at First Sight, but it is unlikely that young men and women will learn much from the portrayal of love and marriage in entertainment-focused television programs. Entertaining as such series may be and however physically attractive the contestants, it is doubtful whether the giving and receiving of a rose will have much to do with the majority of successful young marriages. 3.4 It cannot be denied, however, that in considering the benefits of marriage the emphasis is clearly on those marriages that are, in most aspects at least, happy and heterosexual. Dr Edgars’ heartwarming opinion that ‘there ought to be more of it’ (that is, marriage) would, one imagines, be cheered by those couples to whom marriage, in keeping with the Marriage Act 1961 (Cth), is not available — same-sex couples. [page 49] 3.5 It is from a surprising source that what is, perhaps, the most cogent argument in favour of the institution of marriage is presented. The Australian Marriage Equality Org suggests 12 reasons why marriage holds a privileged status in the community and by implication asserts that the definition in the Marriage Act 1961 should be extended to include the right

to marry for ‘[m]en and women of full age’ as set out in the Universal Declaration of Human Rights, Article 16. The 12 reasons offered are equally applicable to heterosexual marriage and indeed that is the intention behind them. Space does not permit more than an outline of the reasons offered in favour of marriage by the Australian Marriage Equality Org. Nonetheless, the following list encapsulates the fervour with which marriage is desired by some same-sex groups by declaring: 1.

Same-sex couples want to marry for all the same reasons as their opposite-sex attracted counterparts. These reasons include: for legal security; to publicly celebrate their commitment; to provide greater legal protection for their children; or simply because they are in love.

2.

There are legal benefits attached to marriage including a marriage certificate proving legal status.

3.

Marriage is a universal and valued institution which provides a family with real social and cultural benefits.

4.

Same-sex attracted people want to be treated equally and freed from — in their view at least — a second class status.

5.

Excluding same-sex attracted people from marriage gives the impression that it is acceptable to discriminate on the basis of sexual orientation.

6.

The ban in Australia on same-sex marriage implies that same-sex couples are less capable of love and commitment than heterosexual couples.

7.

Allowing same-sex people to marry will also benefit

marriage per se by sending out a message that marriage is defined by values such as love, devotion and social inclusion. 8.

Same-sex marriage would benefit the children of samesex partners by providing them with the legal security and social recognition that comes with having married parents.

9.

The marriage of same-sex people would enhance religious freedom by allowing willing denominations to legally perform the ceremony of marriage for same-sex couples.

10. Sanctioning same-sex marriage would provide a huge economic benefit to the community through the outlay of large amounts of money on the wedding and associated expenditure. 11. There is growing support within Australia and in many parts of the world for same-sex marriage. [page 50] 12. Civil unions do not carry the same respect, legal status or social benefits as heterosexual marriage.4

Same-sex marriage in Australia and elsewhere 3.6 The question of allowing same-sex marriage in Australia is not just on the political agenda but equally concerns religious leaders, advocates of human rights, those

who agree with extending the definition of marriage and those who oppose change. As already discussed, marriage is a social institution that has evolved considerably over time. Some of its historic rationales have weakened, but nevertheless, marriage as an institution has proven to be durable and continues to be widely celebrated. When people marry, whether male or female, they tend to do so for reasons of love and commitment. There is usually a great deal of financial outlay surrounding the occasion. It is plainly beneficial to the overall economy of a country. Marriage, however, also confers a legal status, which comes with rights and responsibilities. Marriage establishes a legal kinship between one spouse and the other and in very many circumstances draws in a much wider set of family members. It is a relationship that is recognised across all cultures, countries and religions. The benefits of marriage to society as a whole are myriad and it is certainly arguable that extending its rights and responsibilities to non-heterosexual couples does not violate the meaning of marriage or destroy its tradition. 3.7 The conservative approach taken by the Australian Government is at odds with the progressive nature of marriage reform in some jurisdictions, which grow more numerous year by year. In all, about 65 jurisdictions allow same-sex marriage, the first being the Netherlands in 2001 and the latest the Republic of Ireland (Ireland) in 2015. In April 2014 Malta enacted the Civil Unions Bill which means that gay and lesbian couples now have the right to formally and officially have their relationship recognised by the state. The fact that the legislation refers to civil unions rather than ‘marriage’ is of little consequence to the actual outcome. In

effect civil unions in Malta have given couples the same rights and responsibilities as a traditional marriage (including the right to apply for adoption), but simply under a different name. Nevertheless, the Australian Marriage Equality Org feels that only a union which is in every way a lawful marriage will satisfy people’s human rights. On September 2016 the Coalition Government led by Malcolm Turnbull revealed the intention to present the voters of Australia with a plebiscite into whether samesex marriage should become lawful in this country. The plebiscite was to have taken place in February of 2017. In effect, a plebiscite (certainly in this instance) would do no more than act as an indicator of public opinion. Neither individual Members of Parliament nor Parliament as a whole would be bound by it. In fact, neither a plebiscite nor a referendum is necessary. It is the present definition of [page 51] ‘one man and one woman’ in the Marriage Act 1961 (Cth) which must be changed. Unlike Ireland, the definition of marriage in this country is not contained in the Australian Constitution. The Federal Government has the power without recourse to public opinion to make laws with regard to marriage. This power extends to same-sex marriage. When the Howard Government changed the Marriage Act in 2004, a plebiscite was not deemed necessary. The leader of the Labor Party, Bill Shorten, in October 2016 refused to support the plebiscite, saying: ‘We could make

marriage equality a reality today by having a free vote in the parliament and that is what should be done.’5

Opposition and support 3.8 The Catholic Bishops of Australia in discussing samesex marriage use language which seems gentle but carries a harsh message. In the document ‘Don’t Mess with Marriage: A Pastoral Letter from the Catholic Bishops of Australia to all Australians on the “Same-sex Marriage” Debate’ (Pastoral Letter)6 it was stated that ‘every man, woman and child has great dignity and worth which can never be taken away. This includes those who experience same-sex attraction. They must be treated with respect, sensitivity, and love’ (p 3). Ultimately, however, the axe falls on any notion that samesex couples should enjoy the same right to be married as heterosexual couples. According to the Pastoral Letter It would appear that the love experienced by same-sex couples is mere friendship. Moreover, they do not possess the requisite ‘values’ to honour a ‘real marriage’. In contrasting heterosexual marriage with same-sex marriage, the Pastoral Letter makes the point thus: ‘Same-sex friendships are of a very different kind [to the union of a man and a woman]: to treat them as the same does a grave injustice to both kinds of friendship and ignores the particular values that real marriages serve. [emphasis added]’ The implications in this statement are obvious. From a human rights point of view it is untenable to claim that

lesbian women and gay men are lacking in the ‘values’ of heterosexual partners/parents in a ‘real’ marriage. In writing in support of same-sex marriage and on the manner in which modern marriage differs from generations past, Drs Don and Patricia Edgar say: Marriages are no longer arranged, between families; mutual consent is all that’s required. If gay couples want to marry and declare a lifelong commitment, to make their love and mutual support public, what harm can there be in that? Far better to have a publicly declared commitment than an unstable sexual relationship lacking any legally binding and reciprocal responsibilities and social obligations.7

[page 52] In light of the fact that the necessary changes to allow lawful marriage of same-sex partners in Australia has reached a stalemate, it seems valid to draw comparisons between this country and Ireland. Prior to the vote which allowed same-sex couples to marry in Ireland, the definition of marriage derived (as in Australia) from the English common law. Therefore Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 at 133, in which marriage was held to be ‘the voluntary union for life of one man and one woman, to the exclusion of all others’, prevailed in Ireland. There are many further similarities between Ireland and Australia in outlook, but also in legal and governmental matters. Both countries inherited the English common law. Each country has a bicameral system of government with a parliament (lower house) and a senate,

the difference being that Ireland has a President who is very much part of the ruling government. This is so regardless of whether the party holding power is to the left or right of the political spectrum. Prior to the referendum necessary to change the Irish Constitution (pursuant to Art 46) to make it lawful for same-sex partners to marry, all shades of political parties spoke in favour of a ‘yes’ vote. Prime Minister Enda Kenny (of the Fine Gael (conservative) party) and President David Norris were enthusiastic in support of a vote which would most reflect human rights. In the event, a majority of Irish voters confounded conservative and religious culture and opinion in a ‘yes’ vote. When the ‘yes’ vote was carried the Irish Prime Minister stated: With today’s Yes vote we have disclosed who we are — a generous, compassionate, bold and joyful people. … The decision makes every citizen equal and will strengthen the institution of marriage for all existing and future marriages. All people now have an equal future to look forward to.8

The majority of Irish people seem to believe that same-sex partners have the same degree of love, loyalty and commitment and sense of common purpose as heterosexual partners and hence have the desire to be accorded the same marital rights and recognition as heterosexual couples. Equally, on the breakdown of a same-sex relationship the pain, loss and disappointment are just as evident as in those matters before the Family Court dealing with heterosexual couples.

Marriage Legislation Amendment Bill 2004 3.9

Under s 51(xxi) of the Australian Constitution, the

Parliament of Australia is vested with the powers to make laws with respect to marriage. On 27 May 2004, the then Attorney-General, Philip Ruddock, introduced the Marriage Legislation Amendment Bill, intending to incorporate the common law definition of marriage into the Marriage Act 1961 (Cth) and the Family Law Act 1975 (Cth) (FLA). [page 53] On that same day, he announced that: … the Government would act to protect the institution of marriage by legislating within the limits of its responsibility, to ensure that same sex relationships cannot be equated with marriage … The Government will amend the Marriage Act to make it absolutely clear that Australia will not recognise samesex marriages entered into under the laws of any other country.9

In June 2004, the bill passed the House of Representatives. On 13 August 2004, the Senate passed the amendment by 38 votes to six. In so doing, the fate of same-sex marriage was sealed without the least recourse to the basic standards of human dignity, equality, liberty and freedom of choice which are laid down in human rights instruments. Neither same-sex marriage nor civil unions are recognised under Australian federal law and, since 2004, the Marriage Act explicitly recognises marriage as being ‘the union of a man and a woman’. With the enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth), 84 Commonwealth laws have been amended to eliminate discrimination against

same-sex couples and their children in a wide range of areas. These include social security, taxation, Medicare, veterans’ affairs, workers compensation, educational assistance, superannuation, family law and child support. Steadily, legislation is being enacted in order to bring all matters in relation to the breakdown of a family partnership into the jurisdiction of the Family Court. Property law is one area where the treatment of same-sex relationships has been brought into line with heterosexual de facto relationships. Under the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) the Federal Government has introduced an amendment to the FLA which has enabled heterosexual de facto couples and same-sex couples to, for example, benefit from superannuation splitting provisions under the FLA. They are also able to have their property and children’s matters dealt with in the Family Court in the same way as married couples. In both circumstances the court considers whether it is just and equitable to make a decision on the facts before it. If the court decides to do so, the manner in which the court makes an order as to how a pool of property is to be divided is the same. Thus the court, in relation to the acquisition of property by the parties, examines in detail financial and nonfinancial contributions made directly or indirectly to the property, including any contributions made as a homemaker or parent, and any written agreement made between the partners. In matters involving children the precise provisions and principles apply to all children without distinction. The focus of the court is always the best interests of the children. 3.10 Prior to the enactment of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008

(Cth) all Australian states and territories enacted new laws to deal with de facto relationship breakdown. A number of the Acts made provision for de facto couples (including same-sex couples) to register their relationship. [page 54]

Legal definition of marriage 3.11 In Chapter 4 we will consider many cases in which questions are raised as to the validity or otherwise of a particular marriage. The first step is to consider the much quoted common law definition as it was stated by Wilde JO in Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 at 133, where he said: I conceive 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.

Although Wilde JO referred to a Christian understanding of marriage, the Judeo-Christian notion of marriage also accepts that marriage is a sacrament which ought not lend itself to interference by the state. For a fascinating discussion of the primacy of religious, as opposed to civil, marriage, see D A Crane, ‘A “JudeoChristian” Argument for Privatizing Marriage’ (2006) 27(3) Cardozo L Rev 1221. The Hyde v Hyde and Woodmansee definition remains part of the law of Australia today. This is clear not only from judicial statements (see Khan v Khan (1962) 3 FLR 496 at

497; Marriage of C and D (falsely called C) (1979) 5 Fam LR 636; FLC ¶90-636; R and L (1991) 15 Fam LR 122; FLC ¶92266), but more particularly from ss 5(1) and 48(1) of the Marriage Act 1961 (Cth). The definition in Hyde v Hyde and Woodmansee also mirrors the principle contained in s 43(a) of the FLA: all courts exercising jurisdiction under this Act have regard to ‘the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life’. Accordingly, the definition of a de jure marriage in Australia involves four elements, namely that marriage is: 1.

a voluntary union;

2.

for life;

3.

of one man and one woman;

4.

to the exclusion of all others.

These elements cannot, however, be taken as the entire legal conditions for a valid marriage. For example, no mention is made of the requirements as to marriageable age or as to prohibited relationships or the necessary formalities. If ‘de jure marriage’ merely refers to the relationship between the couples, then the definition might appear to extend to some informal or de facto relationships; yet this is not so. When we speak of union in the context of a marriage in Australia, we mean a ceremony purporting to comply with the Marriage Act 1961 (Cth). Consequently, even if all the other elements of the definition were satisfied, a de facto relationship would not come within the Hyde v Hyde and Woodmansee formula.

[page 55]

‘Of one man and one woman’ 3.12 As well as needing to be voluntary and monogamous, marriage in Anglo-Australian law has always been regarded as exclusively heterosexual in character. Thus, the reference in s 46(1) of the Marriage Act 1961 (Cth) to the union of ‘a man and a woman’, adopted from the Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 definition, means that same-sex couples in Australia are not eligible to marry under the Marriage Act. As noted in Chapter 2 it is, however, arguable that if the Commonwealth had the will, the definition of marriage in the Constitution could include same-sex marriages. A ‘living force’ or other form of contemporary approach to constitutional interpretation means that marriage would be likely to include same-sex marriages. This would enable same-sex unions to be recognised as marriages. In this regard, it is enlightening to read the statement of the now retired Gaudron J of the High Court in the case of Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [44]–[45]: … many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. … in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of

all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.

Because the definition of marriage in Hyde v Hyde and Woodmansee is still the one applicable in common law countries, questions as to the validity of marriage may arise in circumstances where the human dignity of the intersexed is affronted. In the matter following, the issue arose as to who is a man and who is a woman for the purposes of the definition of marriage. In the cases which follow there is considerable reference to ‘transsexual’ or ‘transsexualism’.

In the English decision in Corbett v Corbett [1971] P 83, Ormrod J held that a person correctly identified at birth as being of one sex could not, for the purposes of marriage, be recognised as a member of the opposite sex, despite surgical intervention. The respondent ‘wife’ in this case had been registered as a male at birth, but as an adult lived as a female, and underwent a sexchange operation in 1960. The respondent and the petitioner husband went through a marriage ceremony in 1963, but separated shortly afterwards. [page 56] The main issue for the court was whether the respondent was a person of the male or female sex for purposes of the law of marriage. After considerable discussion, Ormrod J found, as a matter of

fact, that the respondent was a post-operative male-to-female transsexual. In reaching this finding, Ormrod J preferred to rely on ‘biological’ criteria rather than taking into account matters of social identity, or the fact that the respondent was accepted as a female for the purposes of national insurance. It followed that the respondent’s sex-change operation, which obviously could not affect the original male chromosomal pattern, was legally irrelevant. Since the ceremony of marriage which had taken place was in effect between two men, the court went on to grant a decree of nullity on the basis that the marriage was void. In his discussion of the criteria accepted by the medical experts in assessing a person’s sex, his Honour’s conclusion was as follows (at 104): The respondent has been shown to have XY chromosomes and, therefore, to be of male chromosomal sex; to have had testicles prior to the operation and, therefore, to be of the male gonadal sex; to have had male external genitalia without any evidence of internal or external female sex organs and, therefore, to be of male genital sex; and physiologically to be a transsexual. … Socially, by which I mean the manner in which the respondent is living in the community, she is living as, and passing as a woman, more or less successfully. His Honour then proceeded to adopt a biological approach to the question of the respondent’s sex, and thus to conclude that the respondent was, at the time of the marriage, a male (at 106): The question then becomes, what is meant by the word ‘woman’ in the context of a marriage, for I am not concerned to determine the ‘legal sex’ of the respondent at large. Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or

the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors’ criteria, that is, the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.

In 2004, following significant adverse comment and findings in the European Court of Human Rights, the United Kingdom Parliament finally legislated to grant rights to legal identity and marriage to an estimated 5,000 of its citizens living with transsexualism: Gender Recognition Act 2004 (UK).

The Australian experience 3.13 In the context of marriage, there have been two Australian cases in which related issues have arisen. In each case Hyde v Hyde and Woodmansee was applied, but with quite different outcomes. [page 57]

In Marriage of C and D (falsely called C) (1979) 5 Fam LR 636; FLC ¶90-636, the parties were married in 1967 and lived

together until 1978. The husband was born genitally intersexed (a true hermaphrodite), that is, his genitals had characteristics of both sexes. At the age of 22, he underwent surgery which involved the restructuring of his external sex organs. Although he still possessed a normal female chromosome complement, the surgery carried out was such as to confirm the recognition that he was born a male and had been reared as a male. These facts were unknown to the wife at the date of the marriage. In the proceedings before the court, the wife claimed that the husband was unable to consummate the marriage, and filed an application for a declaration of nullity. In pronouncing a decree of nullity, Bell J stated (at Fam LR 638– 9): The grounds for a void marriage were those contained in s 18(1) of the Matrimonial Causes Act 1959 and as I apprehend the submission of counsel for the wife, the ground upon which he is relying is s 18(1)(d): (d) the consent of either party is not real consent because — (i)

…

(ii)

that party is mistaken as to the identity of the other party, or as to the nature of the ceremony performed; (emphasis mine)

The ground of identity is in my opinion made out in that the wife was contemplating immediately prior to marriage and did in fact believe that she was marrying, a male. She did not in fact marry a male but a combination of both male and female and notwithstanding that the husband exhibited as a male, he was in fact not and the wife was mistaken as to the identity of her husband and the ground under the Matrimonial Causes Act is made out.

3.14 An alternative rationale for the decision was based on the findings in Corbett v Corbett [1971] P 83. This was despite

the fact that Ormrod J expressly left open the question of the legal position of hermaphrodites in deciding that case. Note that the decision in Marriage of C and D (falsely called C) (1979) 5 Fam LR 636; FLC ¶90-636 was the subject of ongoing severe criticism: see, for example, H A Finlay, ‘Sexual Identity and the Law of Nullity’ (1980) 54 ALJ 115. It was finally declared not to be a correct interpretation of the law of Australia by the Full Court of the Family Court in Attorney-General (Cth) and ‘Kevin and Jennifer’ [2003] FamCA 94. 3.15 In New Zealand, a ground-breaking precedent was established when the High Court, declining to follow Corbett v Corbett, held that the marriage of a person with transsexualism (now more correctly classified as being intersexed) who had undergone the requisite surgical affirmation procedures was valid.

In Attorney-General v Otahuhu Family court [1995] NZFLR 57; (1995) 12 FRNZ 634 at 647–8, Ellis J stated: Some persons have a compelling desire to be recognised and be able to behave as persons of the opposite sex. If society allows such persons to undergo therapy and [page 58] surgery in order to fulfil that desire, then it ought also to allow such persons to function as fully as possible in their re-assigned sex, and this must include the capacity

to marry … There is no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of re-assignment. It would merely confirm the factual reality.

3.16 All the states and territories now have provisions in place protecting persons from discrimination on the ground of their ‘gender identity’ irrespective of surgical status (except Western Australia which only protects those who are postoperative). Each has also legislated to recognise a change in the legal record of sex for post-operative persons on their Register of Births, with South Australia being the first to do so in 1988 (Sexual Reassignment Act 1988) and Victoria the last: Births, Deaths and Marriages Registration Amendment Act 2004. 3.17 Most recently the issue of sex affirmation surgery in the context of marriage was considered by an Australian court in Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074. This matter became the subject of extensive academic, judicial and political discussion and, to use a cliché, was ‘groundbreaking’. For that reason it is discussed at some length here.

The decision concerned two people (‘Kevin’ and ‘Jennifer’) who went through a ceremony of marriage on 21 August 1999 and thereafter have resided together as a married couple. In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074, Chisholm J in the Family Court of Australia made a declaration of validity of the marriage of ‘Kevin’, a man of

transsexual background, to his wife ‘Jennifer’. His Honour made some very incisive criticisms of the ‘essentialist’ reasoning employed by Ormrod J, 30 years beforehand. He heard extensive expert medical evidence as to the biological nature of transsexualism and the treatment that Kevin had received for it. He also heard evidence as to the innate sense of his male sex that Kevin always had and its ordinary common meaning according to the common law. Chisholm J then held that ‘Kevin’ was a man for the purposes of Australian marriage law. The Full Court confirmed the decision after an unsuccessful appeal by the Attorney-General. The Federal Court subsequently issued a statement in the parliament that it accepts the position established in Re Kevin. The process that Kevin undertook to transition from the appearance as female at birth to presenting as male at the date of his marriage are detailed in the following extract from the appeal judgment, which quotes extensively from the decision at first instance (Attorney-General (Cth) and ‘Kevin and Jennifer’ [2003] FamCA 94). The Full Court stated (at [7]–[12]): We note that the trial judge recorded that prior to the marriage, Kevin had undergone several medical procedures to remove both primary and secondary female sexual characteristics and to substitute male sexual characteristics. Expert evidence before the trial judge concurred that the procedures and processes referred to in the evidence [page 59] are the means through which gender reassignment is achieved. In Kevin’s instance, this involved hormone

treatment and irreversible surgery conducted appropriately qualified medical practitioners.

by

Following surgery, Kevin applied to the Registrar of Births, Deaths and Marriages to have his reassigned sex from female to male noted on the Register of Births pursuant to the provisions of s 32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). Subsequent to the medical procedures and processes, Kevin is recognised, under both Commonwealth law and the law of New South Wales where he resides, as a man for various purposes. It was common ground before the trial judge that Kevin had female chromosomes, gonads and genitals at birth. He deposed that for as long as he could remember, he had perceived himself to be male, that for years he has been living as a male and that he is treated as a male in his family, work and social life. The path by which Kevin came to adopt the physical characteristics and social role of a male was set out by the trial judge as follows: … for as long as he could remember, Kevin has perceived himself to be male. When he was a very young child his mother tried to persuade him that he was a girl and that he should behave as a girl. She forced him to dress as a girl on special occasions. She had Kevin and his father stand naked in front of each other to demonstrate that they had different anatomies. None of this worked: he continued to believe he was a boy. He wore boys’ clothes whenever he could. He refused to play with girls’ toys. Kevin was the oldest of four children: he had three sisters. He saw his relationship with them as being that of an older brother. He would physically defend them, at school and elsewhere, after his father had left the family home. He did some of the physical tasks his father had done, such as mowing the lawns and doing household repairs. His mother gave him ‘boys’ presents’ such as footballs and cars, and made boys’ clothing for him. Some family photographs are striking: at age 3, with pistols; at age 8, with a soccer ball and trophy. Most remarkable is a photograph of Kevin aged about 15 or 16, with his sisters. They are wearing pastel

coloured dresses and sandals. He is wearing dark trousers and shoes, and what looks like a boy’s shirt. To my eye, despite the shoulder length hair, he looks as much like a boy as a girl. Kevin describes his adolescence, and the feminisation of his body, as a ‘time of pain and dread’. He was harassed at times at school because of his male attitude and appearance. He wore a jacket of the type worn by boys, and students mocked him, saying he was a girl, and asking why he dressed like that. Arguments would sometimes develop into fighting, at which he was adept. He says that during his adolescence and early adult years he kept most of his thoughts to himself and felt extremely alienated from people. In late 1994 he commenced work with his present employer. Throughout his employment there he generally presented as a male, wearing trousers and shirts to work. In mid 1995 someone showed him an article about sex reassignment treatment, and he can still recall his ‘feelings of relief and excitement upon learning of other people like me and of how they had discovered the medical means to express their true sex as men’. Kevin embarked on hormone treatment in October 1995. This led to coarse hair growth on his face, chest, legs and stomach, and a deeper voice. His body was already muscular from sport and lifting weights, but it became more so. He

[page 60] later saw Dr Anne Conway, an andrologist at the Concord Repatriation General Hospital. Dr Conway reports that it is likely that he has had a testosterone level in the adult male range since 1995 and certainly since 1997 when he started treatment at her Department. In November 1997 Dr Laurence Ho, a plastic surgeon, carried out breast surgery as part of Kevin’s gender reassignment program, reducing them to ‘suitable male size’ by liposuction. Dr Ho says that Kevin was ‘very pleased with the result’. In September 1998 he had further surgery: Dr Anne Pike, whose report is also in evidence, performed a total hysterectomy with bilateral oophorectomy. As a result, Kevin’s body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse. Dr Haertsch, a plastic surgeon, has provided evidence that the surgery Kevin has undergone ‘is sexual reassignment surgery’ within the meaning of Section 32A of the Birth Deaths and Marriages Registration Act 1995 (NSW). He has elected not to have further surgery involving the construction of a penis or testes. Such

surgery is complex and expensive, and has risks of complications and failure. The Attorney-General has not sought to argue that the sex-reassignment surgery was in any way incomplete or unsuccessful. (footnote omitted)

An affidavit of Professor Milton Diamond, Professor of Anatomy and Reproductive Biology at the School of Medicine, University of Hawaii, was put before Chisholm J. In his affidavit, Professor Diamond commented upon the reports of two expert psychiatric witnesses Professor Nathaniel McConaghy and Professor Cornelius Greenway, whose affidavits were also before Chisholm J. The factual contents of the affidavit evidence of these witnesses was not challenged at the hearing. Professor Diamond deposed: [Kevin] is typical in choice of surgeries. Most often the female to male transsexual will adopt a male name and dress, and work, live and play as expected of a male in society. For the female to male (FtM) transsexual the most desired surgery is hysterectomy to stop menses, removal of ovaries to stop estrogen production and mastectomy to remove the breasts. His taking of male hormones produces hirsutism and a desired deepening of the voice. Phalloplasty, the construction of a penis to improve a male body image or to facilitate sexual activity is not uncommon but is less often requested. Many FtM transsexuals forgo this penile construction surgery due to its difficulty, lack of assurance that the penis will function adequately when surgery is complete and expense. Further, for many transsexuals, living as a male is done for mental reasons less associated with eroticism. Other behaviours can substitute for penile-vaginal intercourse. Following the actual sex reassignment surgery, female to male transsexuals generally ‘pass’ quite well and are easily accepted in society. Indeed, conditions are such that [Kevin] cannot probably live in any manner other than as a man in society. Aside from his inner feelings of male-ness, his appearance and demeanour would make it difficult for him to be accepted as a woman. To force such a condition would be cruel to him, to his wife and all social contacts. Society would most greatly lose thereby.

After a detailed analysis of the relevant authorities and principles the appeal court dismissed the appeal,

agreeing with the trial judge that Kevin was a man for the purpose of his eligibility to get married. The reasoning of the court is summarised in the following passage (at [374]–[389]): [page 61] Conclusions Should the words ‘man’ and ‘marriage’ as used in the Marriage Act 1961 bear their contemporary ordinary everyday meaning? As we have said (at par 16 of our reasons) Chisholm J proposed the test as being: Unless the context requires a different interpretation, the words man and woman when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men and/or women in accordance with their sexual reassignment, R v Harris & McGuiness (1988) 17 NSWLR 158; Secretary, Department of Social Security v SRA (1993) 118 ALR 467 followed. The context of marriage law, and in particular the rule that the parties to a valid marriage must be a man and a woman, does not require any departure from ordinary current meaning according to Australian usage of the word ‘man’.

For the reasons already given, it follows that we agree with that approach. In our view, nothing has been shown by the Attorney-General that requires a contrary interpretation. Having found that [Corbett v Corbett [1971] P 83] does not represent the law in Australia, with which we also agree for the reasons given, his Honour found (at par 330): In the present case, the husband at birth had female chromosomes, gonads and genitals but was a man for the purpose of the law of

marriage at the time of his marriage, having regard to all the circumstances and in particular the following: (a) He had always perceived himself to be a male; (b) He was perceived by those who knew him to have had male characteristics since he was a young child; (c) Prior to the marriage he went through a full process of sexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners; (d) At 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; (e) He was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF program, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage; (f)

His marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.

Once it is determined that words in a statute should bear their contemporary ordinary everyday meaning, it becomes, as we have said, a question of fact to determine what that meaning is. Chisholm J defined the word ‘man’ as including a post-operative transsexual person (female to male). It is unnecessary for the purposes of this case for us to further define what those words mean, but rather to determine as a question of law whether it was open to Chisholm J to find, as he did, that Kevin was a man at the time of the marriage for the purposes of the Marriage Act. In our view this finding was clearly open to Chisholm J. Indeed, the medical evidence clearly pointed in that direction as did the other evidence of the social acceptance of Kevin as a man. The weight of international legal developments points strongly in a

[page 62] similar direction. There is widespread statutory recognition of transsexual persons as ‘man’ or ‘woman’ (as the case may be) for the purposes of criminal and social service law. The laws of a number of Australian States permit the alteration of birth certificates to recognise the position of transsexual persons. The acceptance of such a position provides consistency, in Australia at least, with case law outside the area of marriage. It is also, in our view, a finding consistent with international law and with humanity. A contrary finding would, in our opinion, result in considerable injustice to transsexual people and their children, for no apparent purpose. Once this issue is determined, the question of whether the marriage between Kevin and Jennifer is a valid marriage was a matter for determination by the trial judge. No question was raised that the marriage was not valid, once the other issues were determined in their favour. This leaves the more difficult question of the position of pre-operative transsexual persons. As we have said, this case does not require us to determine this question. In all of the decided cases to which we have referred their position has been distinguished from post-operative transsexual persons and comments have been made to the effect that this is a matter for Parliament to determine. In this country at least, there have been no signs that the Federal Parliament has any interest in these questions. The solution is not, of course, solely in the hands of the Federal Parliament. There has been greater interest within most of the States and Territories

and for many purposes it is the law of the States and Territories that most affect transsexual persons. A question arises as to whether the Courts can logically maintain that the position of post-operative transsexual persons is a matter for them but that of pre-operative transsexual persons is one for Parliament. This has the effect of leaving such persons as the only persons in the community who are prevented from marrying a person who they legitimately regard as a person of the opposite sex, while remaining free to marry a person of their own sex. The reluctance of Courts to enter this area seems to be based upon something of the same logic as that of Corbett, namely an inability to be able to make a physical or scientific examination in order to determine the sex of a person. If one accepts the argument of Ms Wallbank and the evidence given in this case, Kevin has always perceived himself to be a man. One then asks the rhetorical question as to why he must subject himself to radical and painful surgery to establish this fact. Mr Basten’s oral submissions were relevant to this issue. He said (Appeal Transcript, 19 February 2002, page 26): … we would say that the actual nature of the surgical intervention and its achievements may be a factor that could be taken into account — we don’t suggest it’s irrelevant — but it is not a factor which will be determinative in all cases and may not be of great importance, at all, in some cases.

He then highlighted that the direction of transition (male to female in contrast with female to male) may give rise to different considerations: … in the circumstances of this case, it is worth accepting that surgical intervention in relation to the removal of gonads may be relatively straight forward, surgical intervention for a male to female transsexual person in relation to the construction of a vagina may be common place, surgical intervention which requires the

construction of a penis is much more problematic and even where it takes place may or may not give rise to something which would be readily accepted as a penis of a sexual kind which has a particular sexual function.

[page 63] These are not matters which the present case requires us to comment upon. They are issues that will have to be determined by another Court in an appropriate case. Our decision like that of Chisholm J in this case, is in our view, the correct interpretation of the law. We would add, however, that we believe that the recognition of the position of post-operative transsexual persons is at least a step in the direction of the recognition of the plight of such persons and hopefully a step that will enable them to lead a more normal and fulfilling life. Our decision in this matter is that the appeal should be dismissed.

‘To the exclusion of all others’ 3.18 Marriage in Australia and other common law countries is essentially monogamous. The inclusion of the words ‘to the exclusion of all others’ in the relevant legislation and in Wilde JO’s statement in Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 reflects the fact that it is not possible for a person to have more than one legal spouse at the same time. In further development of this principle, a party to a polygamous or potentially polygamous marriage celebrated

overseas was formally denied matrimonial relief in English or Australian courts. This position has now been changed by statute. In Australia, the relevant legislation is s 6 of the FLA, which states: For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

Accordingly, any party to such a marriage who comes to live in Australia is now able to institute various proceedings under the FLA, dealing, for example, with divorce, children, injunctions or financial relief.

‘Voluntarily entered into for life’ 3.19 The phrase ‘voluntarily entered into for life’ draws attention to one fundamental aspect of marriage, that it be a voluntary arrangement. This requirement of consent is necessary at the time of the marriage ceremony and now finds formal expression in s 23B(1) of the Marriage Act 1961 (Cth). In some cases a person’s consent can be invalidated, and the marriage declared void, in circumstances of duress, fraud, mistake or mental incapacity. 3.20 The phrase ‘for life’ is an interesting component of the definition of marriage. In 1866, when Hyde v Hyde and Woodmansee was decided, judicial divorce had been available in England for almost a decade under the Matrimonial Causes Act 1857 (UK). Indeed, Wilde JO (later Lord Penzance) was divorced under the Matrimonial Causes Act 1857 (UK). The use of the words ‘till death do us part’ is

both romantic and illustrative of the emotional ideals of the marriage ceremony. Of course, ideally, one would think that when parties marry their intention is that it be for life, but there is no legal requirement that in order for a marriage to be valid this should be so. In both the English and Australian courts, marriages entered into for [page 64] ulterior and temporary purposes have long been recognised as valid. It accords with reality that the expression ‘for life’ seems only to indicate that once celebrated, the marriage will continue in law until one party dies, or the requirements for divorce are satisfied.

In Marriage of S (1980) 5 Fam LR 831 at 837; (1981) FLC ¶90820, the purpose of the words ‘for life’ was thus explained: It is a statement of the traditional concept of marriage in Australia — a voluntary monogamous heterosexual relationship entered into for an indefinite duration, hopefully for life. In Seidler and Schallhofer (1982) 8 Fam LR 598 at 614; FLC ¶91273, Hutley JA took a somewhat different view: The monogamous marriage for life runs counter to such powerful passions in men and women that only strong legal and social sanctions could maintain it, particularly in a society where the pursuit of pleasure is regarded as its own justification. These sanctions have been abandoned, or repealed, for example, damages can no

longer be recovered from a seducer. The maxim involved in this case is a remnant of a spider web of sanctions, which have been rejected by law or social custom as oppressive. The marriage which the law now provides is of an entirely different kind. It is an arrangement terminable by either party on one year’s separation, really one year’s notice, as the separation may be fictitious.

Marriageable age 3.21 In addition to the above matters, for a marriage to be valid the parties must be of marriageable age. Pursuant to s 11 of the Marriage Act 1961 (Cth), the marriageable age for males and females is 18 years. Prior to 1 August 1991, the marriageable age for a male was 18 whereas for a female it was 16 (and this position is preserved for those marriages taking place prior to the amendments: s 3 of the Sex Discrimination Amendment Act 1991 (Cth)). Where either party to a marriage is not of marriageable age, the purported marriage is void: ss 23(1)(e) and 23B(1)(e) of the Marriage Act. It is important to note that, pursuant to the Acts Interpretation Amendment Act 1984 (Cth), a person attains a given age in terms of years at the commencement of the anniversary of the person’s birth date, and not the day immediately preceding the relevant anniversary as is the position at common law. 3.22 Pursuant to s 12(1) of the Marriage Act, a person who is 16 years or older, but under 18 years of age, is able to

apply to certain authorised persons, including a judge of the Family Court of Australia (s 5), seeking an order authorising him or her to marry someone of the statutory marriageable age. The success of such an application will depend on the exercise of the judge’s discretion: Re Z (1970) 15 FLR 420; Re SG (1968) 11 FLR 326. Section 12(2) provides that the judge may exercise the discretion to make the order authorising the marriage if she or he is satisfied that: [page 65] (a) the applicant has attained the age of 16 years; and (b) the circumstances of the case are so exceptional and unusual as to justify the making of the order.

The phrase ‘so exceptional and unusual’ has been held to mean ‘sufficiently’ as opposed to ‘very’ or ‘extremely’, and as such does not necessarily have to be of a particularly high degree: Ex parte Willis.

Ex parte Willis (1997) 21 Fam LR 479; FLC ¶92-975 related to an application by a young woman of 17 years of age for permission to marry before her 18th birthday. Permission was granted by White J. His Honour set out the following reasons for doing so (at 484): (1) The consent of the fathers of both the applicant and her fiancé has been given to the marriage and the marriage is strongly supported by them.

(2) The applicant will be eighteen years of age within a little over three months. (3) Both the applicant and her fiancé are in stable employment and have displayed maturity and responsibility in relation to their employment and to their relationship with one other. (4) The applicant and her fiancé are deeply in love with one another and have taken steps to set up a matrimonial home in which they and their child will live. (5) If they are allowed to marry, the child will certainly be born in wedlock and able to live with both parents in a good home …

3.23 In applying s 12(2)(b) of the Marriage Act, it has been consistently held that each case must be considered having regard to its particular facts: Re Z (1970) 15 FLR 420; Re SG (1968) 11 FLR 326; Re K (1963) 5 FLR 38. The court has made it clear that such exceptional and unusual circumstances must relate to the particular parties in question and not the class of persons to which they belong: Re SG.

In Re SG (1968) 11 FLR 326 Blackburn J considered an application under s 12 by a young woman aged 15 years and one month who had been born in Greece of Greek parents. The family had emigrated from Greece to Australia and they maintained, in Australia, Greek cultural traditions. Evidence was given by a priest of the Greek Orthodox Church that the proposed marriage was perfectly normal and usual by Greek

standards. It was submitted on the applicant’s behalf that the circumstances were exceptional and unusual. In refusing permission his Honour said (at 327–8): Counsel for the applicant submitted that all these circumstances taken together were exceptional and unusual in the sense of that phrase in s 12. The substance of his contention was that it would be exceptional to find such circumstances co-existing in a corresponding group of Australians. [page 66] I agree with this contention, but in my opinion it does not make the circumstances of the application ‘exceptional and unusual’ within the meaning of the section. Put shortly, the gist of the application is that I should approve a marriage which is in accordance with Greek law and custom, because, viewed in the light of Australian law and custom, Greek law and custom is exceptional and unusual. I venture to think that it was not the intention of the legislature to permit a departure to be made from Australian policy as to the marriageable age of girls merely because another policy, which seems normal and usual to the parties concerned, is exceptional and unusual by Australian standards. I think that the exceptional and unusual circumstances, in order to justify the order sought under s 12, must relate to the particular parties concerned, and not merely to a class or kind of persons to which those parties belong.

The impending birth of a child has been a common reason for seeking the exercise of this jurisdiction of the court. The

court has consistently held that pregnancy of itself is not an exceptional or unusual circumstance: Re Z (1970) 15 FLR 420; Re SG (1968) 11 FLR 326; Re K (1963) 5 FLR 38; Re W (1968) QWN 45. The desire, however, of the couple to be permitted to marry prior to the birth may in certain circumstances be sufficient to lead the judge to exercise the discretion in their favour: Re Z; Re SG; Re W. Circumstances which would indicate the parties’ maturity, their suitability to each other, their secure financial position and a supportive family network which would tend to indicate that the marriage would be a success, may be considered to provide the necessary exceptional and unusual characteristic: Re Z. In Re W, the maturity of the underage party and the fact that he and the proposed partner had been ‘going together in a steady fashion’ for a period of 18 months, in conjunction with the impending birth, was a sufficient basis on which to exercise the discretion to authorise the marriage. The judge also considered that the order would enable the parties to avoid the stigma they would suffer were they not to marry before the birth of the child. See also Ex parte Willis (1997) 21 Fam LR 479; FLC ¶92-975. 3.24 In the event that such an application is successful, s 13(1) requires that the minor obtains the consent to the marriage from a prescribed adult, usually the parent or guardian of the said minor. The court may, however, dispense with such consent if it is impractical to obtain or if the refusal of the consent is unreasonable: ss 15 and 16. The magistrate or judge dealing with the application is required to hold an inquiry (s 12(2)), and is not bound by the rules of

evidence: s 18(1)(a). The inquiry is in private: s 18(2). The applicant must be given an opportunity to be heard (s 18(1) (b)), and may be represented by a barrister or solicitor: s 18(3). A decision refusing the application for an order is final in the immediate term. There is a statutory prohibition on the consideration of a further application for a period of six months after authorisation has been refused (s 19(1)) unless there has been a substantial change in the relevant facts. Notwithstanding that statutory prohibition, however, if a further application is considered and authorisation given, then the authorisation is validly given: s 19(2). [page 67] It should also be noted that s 95 of the Marriage Act makes it an offence to marry a person below marriageable age unless (a) the other party to the marriage has previously been married; or (b) the written consent of the person, or of each of the persons, whose consent to the marriage of the other party to the marriage is required by this Act, has been given or dispensed with in accordance with this Act.

Formalities of marriage in Australia 3.25 Part IV (ss 25–59) of the Marriage Act 1961 (Cth) sets out a number of formalities which should be observed when a couple wishes to marry in Australia. The basic requirements under the Marriage Act are as follows. The marriage ceremony must be solemnised by or in the presence of an authorised celebrant: ss 40 and 41. An ‘authorised

celebrant’ may be either a minister of religion registered under the Marriage Act, or a Registrar of Marriages of a state or territory, or a civil marriage celebrant: s 5(1). Written notice of intention to marry should be provided to the authorised celebrant not less than one month nor more than 18 months before the date of the ceremony: s 42(1)(a). Each party must produce to the celebrant a birth certificate, and if he or she has been married before, evidence of either dissolution of the marriage or the death of the former spouse: s 42(10). A declaration must be made by each party in the prescribed form concerning his or her single status, and his or her belief that there is no legal impediment to the marriage taking place: s 42(1)(c). The ceremony may be celebrated at any time, on any day, and in any part of Australia: s 43. All marriages must be solemnised in the presence of at least two witnesses who are aged 18 years or over: s 44. In the matter of Mears and Mears [2012] FamCAFC 52 the facts are most unusual.

The husband and wife were married in Queensland in 1970. Sometime before August 2006 the husband and wife jointly sought a declaration from the Family Court that the marriage ceremony performed in Queensland in 1970 satisfied all formalities required by the Marriage Act 1961 (Cth). The apprehension by the parties — in particular the wife — was based on the ground that one of the witnesses to the marriage had not satisfied the requirement under s 44 of the Marriage Act 1961 (Cth). In keeping with the legal and social policy that marriage should have special protection there is a ‘saving’ clause in the Family

Law Act (s 48(2)) where a marriage would not be deemed invalid for failing to comply with a formality. One of the witnesses to the marriage in 1970 was not yet 17 years of age. The wife was fully aware of the young age of the witness. The wife gave evidence that before her wedding she had been told by the Anglican Dean in Queensland, who was to officiate at the wedding, that she needed a witness who was over the age of 18, and that the Dean ‘said something like: “you won’t be married if your witness is not over the age of 18”’. Despite this advice from the Dean the wife continued with the [page 68] arrangement with the underage witness (at [8]). At the time of the actual ceremony the Dean made no reference to the appearance, in relation to age, of the witness in question thus giving rise to the conclusion that whatever her true age she appeared and gave the impression to the Dean of being ‘18 or over’. In the years following the marriage, however, the wife was concerned that the marriage was not valid. It emerged in evidence that ‘because she wanted to live with her husband “in a marriage which is valid in the eyes of the law and in the sight of God” she was seeking the declaration that her marriage was valid’ (at [9]. Although not nearly as concerned as the wife regarding the validity of the marriage, the husband told the court he would welcome a declaration of validity in order to put her mind at rest. Coleman J declared that the marriage ‘was and remains a valid marriage in accordance with the provisions of the Commonwealth Marriage Act 1961’. Despite the declaration of validity the wife remained concerned and in 2011 sought and was granted the permission of the court to file a late appeal of the judgment of Coleman J. The husband

stated to the court that while he would not be a party to the appeal he was happy for his wife to proceed. The appeal was heard by Finn, May and Strickland JJ who upheld the judgment of Coleman J that the witness in question was not 18, but this flaw was saved by s 48(2) of the Family Law Act. In the matter of the appeal the wife gave evidence highlighting her discomfort with the finding at first instance by asserting that she did the wrong thing at the time of the marriage, that she knows that the marriage ‘is not legally binding’, and that God has led her ‘to do the right and moral thing in this situation’ (at [25]) and she stated ‘I believe out of my relationship with GOD (sic), HE (sic) has given me many confirmations about this matter and shown me that this is a wise decision that I be responsible for this action’ (at [27]). Finn, May and Strickland JJ granted the order sought by the wife that the parties are able to be married again. On the facts before the Full Court it had no choice but to declare the 1970 marriage valid. In agreeing with the judgment of Coleman J the Full Court said: … it is, as Coleman J found, ‘inconceivable’ given the strong warning which according to the wife’s own evidence, he gave her, that he [the Dean] would not have satisfied himself on the day that the witnesses present appeared to be over the age of 18 years. But even if this conclusion reached by Coleman J and ourselves that it is inconceivable that the Dean would not have satisfied himself regarding the appearance of the age of the witness, s 48(2)(e) of the Marriage Act expressly provides that a marriage is ‘not invalid’ because of a ‘failure to comply with the requirements of section 44’. [at [37]–[38]]

3.26 Where the authorised celebrant is a minister of religion, the ceremony may take any form recognised as sufficient for the purpose by the religious body or organisation concerned: s 45(1). If the authorised celebrant is not a minister of religion, it is sufficient if each party says to the other, in the presence of the celebrant and the witnesses, words to the effect that he or she takes the other [page 69] to be their lawful wedded wife or husband: s 45(2). In addition, the celebrant is generally required to explain to the parties the ‘solemn and binding nature of the relationship’ of marriage, which is ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’: s 46(1). Immediately after the solemnisation of the marriage, the celebrant, the parties to the marriage and the two witnesses must sign the marriage certificate prepared by the celebrant: s 50(1) and (2).

Effects of non-compliance with the prescribed formalities 3.27 Part VII of the Marriage Act 1961 (Cth) sets out a range of offences involving fines or imprisonment which may be applicable where the formalities of marriage have not been satisfied. Among these offences, an unauthorised celebrant who purports to solemnise a marriage under the Act is liable to a fine or to imprisonment for up to six months. Similar

penalties may be imposed where an authorised celebrant proceeds with the ceremony despite thinking that there is a legal impediment to the marriage or that the marriage would be void, or where the proper notices or declarations have not been given by the parties: ss 99(1) and 100. Even more serious offences may be committed by persons, including the parties to the marriage, who make false declarations, or provide forged birth certificates or other documentation, or knowingly give defective notices: see especially ss 96 and 104.

Validity despite non-compliance with the formalities 3.28 Although s 48(1) of the Marriage Act 1961 (Cth) states that ‘a marriage solemnised otherwise than in accordance with the preceding provisions … is not a valid marriage’, s 48(2) contains a substantial list of exceptions. The wide scope of the exceptions means that a marriage under the Act will be void for lack of compliance with formalities only in rare situations. It follows, however, from the wording of s 48(3) that if the celebrant is not authorised, and both parties are aware of this fact, the marriage will be void. Further, the exceptions in s 48(2) do not refer to the requirements for the wedding ceremony set out in s 45. Thus, if the authorised celebrant is a minister of religion, but the form and ceremony is not recognised as sufficient for the purpose by the particular religious body or organisation, the marriage will be void. Similarly, where the authorised celebrant is not a minister of religion, but the ceremony does not satisfy the minimal requirements set out in s 45(2), namely the exchange of vows by the parties, the marriage will be void.

These matters will be further discussed in the following chapter.

Sham marriage 3.29 In general the study of family law does not involve criminal matters. Nevertheless, it is useful to be aware of the increasing incidence of forced, fraudulent or sham marriages in Australia. In some circumstances a person (usually a woman but boys and men may also be victims) will be forced into a marriage [page 70] by fear of retribution if a refusal is attempted. In many instances the motive is to circumvent the Australian migration laws. Entering into such a marriage for immigration purposes that is not intended to be genuine and continuing, and arranging a marriage to obtain permanent residence for someone else, are offences amounting to immigration fraud under the Migration Act 1958 (Cth). In addition, the forcing of a person into marriage may be seen as a form of slavery and thus criminal behaviour under the Criminal Code Act 1995 (Cth) as amended. In February 2013, the then Australian Labor Government passed legislation which set out sanctions for criminal offences such as forcing or deceiving a person into marriage, slavery, servitude or human trafficking. The legislation is contained in the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and

People Trafficking) Act 2013 (Cth). Australia’s forced marriage offences carry a maximum penalty of seven years imprisonment, or nine years imprisonment for an aggravated offence. An offence may be aggravated in several circumstances, including where the victim is under the age of 18. If the victim is under the age of 18 and is taken overseas for the purpose of forced marriage, the maximum penalty increases to 25 years imprisonment.10 Problem question Yetis Abula has lived in Australia since 1980, when he arrived with his parents at the age of 10 years. Although he grew up in the highly multicultural suburb of Broadmeadows in the northern suburbs of Melbourne and became a naturalised Australian during high school, he found it quite difficult to mix with the other children at school. After completing his Victorian Certificate of Education, he attended a university in Melbourne and obtained a degree in information technology. He was offered a lucrative employment opportunity with the National Bank in Adelaide, but decided to defer his position to enable him to travel overseas for a year or so. Yetis travelled to the Middle East and met and courted Hamida, a captivating woman. Yetis asked Hamida to return with him to live in Australia. Although she felt some regret at leaving her home and parents, she agreed to live in Australia with him. Her parents were saddened at having their youngest daughter living so far away but realised she would have a more prosperous future in Australia, and so they assisted the young couple with a substantial amount of money. Yetis took up his position with the National Bank and, a month later, the couple received the news that Hamida was pregnant.

Hamida was only 16, so as soon as they were able to secure a false birth certificate for her they undertook a civil ceremony presided over by the Registrar of Marriages at the Registry in Melbourne. [page 71] When speaking with a colleague in the National Bank’s legal department, however, Yetis realises that his marriage to Hamida may not be valid. He and Hamida are devastated. If their marriage is not valid, their child will be born out of wedlock and the stigma that they will suffer at the hands of their close-knit community would be unthinkable. Yetis and Hamida seek your advice as to whether: 1.

their ‘marriage’ is valid, in that it satisfies the legal prerequisites; and

2.

if not, what options are available to them to have their marriage authorised, given Hamida is under 18 years of age.

Suggested answer Introduction The issues to be discussed are as follows: 1.

Is their marriage valid according to the following criteria: (a) Does it satisfy the legal definition of marriage? (b) Were the formal requirements of the marriage met? (c) Were the parties of marriageable age?

2.

If these requirements are not met, will the marriage be deemed a nullity?

1.

Is the marriage valid?

(a) The legal definition of marriage The legal definition of de jure marriage in s 43(a) of the FLA and ss 5(1) and 46(1) of the Marriage Act 1961 (Cth) clearly adopts the common law definition of marriage denoted in Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130. This definition requires the institution of marriage to be ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life’: s 43(a) of the FLA. It would appear that Yetis and Hamida could show the elements required to satisfy the definition of a de jure marriage in Australia: Their ‘marriage’ was one between a man and a woman: Marriage of C and D (falsely called C) (1979) 5 Fam LR 636; FLC ¶90-636. The parties undertook a civil ceremony and there is no indication on the facts that they were acting involuntarily or that they agreed to have anything other than a monogamous marriage. Further, the Registrar of Marriages is bound to indicate to the parties that by undertaking the marriage, they are agreeing to enter a commitment to each other as one man and one woman: ss 45 and 46 of the Marriage Act. There is no indication from the facts that the Registrar failed in his or her duty to inform them, or that the parties did not agree, that they were entering a union [page 72] for life: ss 45 and 46. The term ‘life’ is intended to denote that

the relationship entered into is one of ‘indefinite duration, hopefully for life’: Marriage of S (1980) 5 Fam LR 831; FLC ¶90-820. (b) The formal requirements of marriage The Marriage Act provides that the formal requirements of a marriage are that: The marriage ceremony must be solemnised by or in the presence of an ‘authorised celebrant’: ss 40 and 41. An authorised celebrant may be a minister of religion registered under the Marriage Act, a state or territory Registrar of Marriages or a registered civil marriage celebrant: s 5(1). Written notice must be provided to the authorised celebrant not less than one month or more than 18 months before the date of the ceremony: s 42(1)(a). Each party must provide to the authorised celebrant his or her birth certificate and, where applicable, a decree absolute or death certificate of a former spouse: s 42(1). Each party must make a declaration as to his or her single status and as to his or her belief that there is no legal impediment to the marriage. The parties must agree at the time of the ceremony to enter a binding relationship of marriage, understanding that this is the union of a man and a woman to the exclusion of others, voluntarily entered into for life: ss 45 and 46. There must be two adult witnesses to the marriage who along with the parties to the marriage sign the marriage certificate prepared by the celebrant: s 50(1) and (2). Given that Yetis and Hamida were married by an ‘authorised celebrant’ pursuant to s 5(1) and there is no indication on the facts that the Registrar did not adhere to the formalities specified above, it may be argued that but for the provision of

the false birth certificate, their marriage would have satisfied the formalities required. Nevertheless, given that Hamida provided the Registrar with a birth certificate that was not her own, the purported marriage would fall foul of s 42(8) of the Act. Part VII of the Act imposes penalties where the formalities have not been complied with. Such penalties may be imposed on the Registrar if he or she proceeded with the ceremony despite being aware that Hamida’s birth certificate was falsified; however, there is no indication on the facts that the Registrar was aware of this. Nevertheless, penalties are likely to be imposed on the parties for providing the forged birth certificate. On the basis that they are likely to have failed to comply with the requisite formalities, it is probable that Yetis and Hamida’s marriage will be deemed to be void. (c) ‘Marriageable age’ — the stumbling block Even if Yetis and Hamida’s marriage was not to fall foul of the formality provisions in the Marriage Act, where either party to a marriage is not of marriageable age the purported marriage is void: ss 23(1)(e) and 23B(1)(e) of the Act. Further, s [page 73] 95 makes it an offence in certain circumstances to marry a person below marriageable age. Marriageable age for both parties to a marriage is 18 years: s 11 of the Act. Where either party to a marriage is not of marriageable age the purported marriage is void: ss 23(1)(e) and 23B(1)(e) of the Act. As Hamida was only 16 years of age at the date of marriage, she failed to be of marriageable age when the ceremony took place,

and on this basis the marriage will also be void. This situation might have been circumvented had Hamida availed herself of the option pursuant to s 12(1) of the Act, whereby a person who is 16 years or older, but under 18 years of age, is able to apply to certain authorised persons, including a judge of the Family Court of Australia (s 5), seeking an order authorising him or her to marry someone of the statutory marriageable age. 2. Future options — application to the court to authorise a marriage Given that Hamida is only 16 years of age, she may still apply for an order authorising the marriage pursuant to s 12. The judge may exercise the discretion to make the order authorising the marriage if she or he is satisfied that the parties’ circumstances are so exceptional and unusual as to justify the order. In applying s 12, it has been consistently held that each case must be considered having regard to its particular facts: Re Z (1970) 15 FLR 420; Re SG (1968) 11 FLR 326; Re K (1963) 5 FLR 38. The issue in this case is whether the circumstances are such that they should encourage the court to exercise its discretion in favour of authorising the marriage, in spite of the fact that Hamida is not yet 18 years of age. It may be argued that the court should find in their favour on the basis that they will suffer stigma if the child is born out of wedlock. The impending birth of a child has been a common reason for seeking the exercise of this jurisdiction of the court. The court has consistently held that pregnancy of itself is not an exceptional or unusual circumstance: Re Z; Re SG; Re K; Re W (1968) QWN 45. However, the desire of the couple to be permitted to marry prior to the birth may in certain circumstances be sufficient to lead the judge to exercise the discretion in their favour: Re Z; Re SG; Re W. Circumstances that would indicate the parties’ maturity, their suitability to each other, their secure financial position and a

supportive family network which would tend to indicate that the marriage would be a success, may be considered to provide the necessary exceptional and unusual characteristic: Re Z. The case of Re W is not dissimilar to the situation of Yetis and Hamida. Although Yetis and Hamida are relying on similar considerations some 30 years later, if they have evidence showing how children out of wedlock are regarded in their community, they could be successful in demonstrating that they are likely to suffer stigma. In addition, it would appear from the facts that their relationship is embraced by each party’s family, they appear to be well suited to each other, they have a similar cultural upbringing and beliefs, they have a secure financial position — these factors would also go some way towards supporting a successful application for authorisation. However, the fact that they were prepared to forge [page 74] Hamida’s birth certificate may indicate desperation or alternatively a considerable lack of maturity on their part, and may override the other factors and result in a rejection of their application. In the event that they are successful, s 13(1) requires that Hamida, as a minor, obtains the consent to the marriage from a prescribed adult, usually the parent or guardian of the said minor. It would appear that she has the support of her parents given that they supported her departure from her home country and provided significant financial support for the move. Further, it is likely that they would not wish their daughter, of whom they are so fond, to be subject to such stigma. Nevertheless, even if they did not provide such consent, ss 15 and 16 provide that the court may dispense with this consent if it is impractical to obtain or if the refusal of the consent is unreasonable.

There is some likelihood that on application to the court the discretion will be exercised in their favour to authorise the marriage in spite of the fact that Hamida is not of ‘marriageable age’. However, the success of the application will depend largely on the court’s balancing of the following factors: the stigma likely to be suffered; the familial support of their relationship; their suitability to each other and similar cultural upbringing and beliefs; and their secure financial position and the likely success of their relationship. These factors must be balanced against their actions in forging the birth certificate, which may be construed as demonstrating a lack of maturity on their part, hence indicating that the parties are not capable of making the necessary commitment to the institution of marriage.

Further discussion 1.

Why is it said that marriage engenders good health?

2.

Is the legal definition of marriage outdated? What arguments might be made in its favour?

3.

How effective might marriage education be within the high school curriculum, and at which level ought it be introduced?

_______________________ 1

Universal Declaration of Human Rights, Article 16, adopted and proclaimed by General Assembly Resolution 217 A (III) of 10

December 1948. 2 See generally (viewed 22 March 2017). 3 D Edgar, Marriage, the Family and the Law in Australia, Australian Institute of Family Studies, Melbourne, 1986. 4 See (viewed 22 March 2017). 5 See (viewed 15 May 2017). 6 See (viewed 22 March 2017). 7 See (viewed 22 March 2017). 8 See (viewed 22 March 2017). 9 ‘Government Defends Marriage’, media release, 080/2004, 27 May 2004. 10 See generally (viewed 22 March 2017).

[page 75]

4 Nullity and Divorce The dissolution of a marriage is almost always a traumatic experience for the spousal partners. However, if children are involved, there is the additional trauma for both the parents and the children regarding maintaining separate relationships with each other. Dr Deborah Wilmoth MAPS, State Forensic Mental Health Service (Western Australia)1

Introduction 4.1 In his book, Men, Mateship, Marriage, Dr Don Edgar concludes: There is now agreement in all studies on the key divorce effects, though the methodologies vary and there are still many contradictions. Divorce is, above all, disrupting to the lives of children, the continuity of their schooling, friendships and neighbourhood support. Poverty is a widespread outcome which is, in itself, a huge disadvantage compared with children in the home with one or two steady incomes.

Children are better off economically, emotionally with both parents.2

psychologically,

4.2 It is true that in many instances a divorce carries with it long-term ramifications. The fragmentation caused by the break-up inevitably has an impact on any children involved, but affects the wider family also. It may be argued, however, that the gloomy picture painted by Dr Edgar does not apply to every family and may be overly pessimistic. Nevertheless of all areas of law, it is family law which demands greatest human empathy from a practitioner. The introduction of the Family Law Act 1975 (Cth) (FLA) in Australia reflected changes to matrimonial laws in much of the common law world. Fundamental changes to the existing law were proposed when Senator Lionel Murphy, the Commonwealth Attorney-General, introduced a series of bills in 1973 and 1974 resulting in the FLA. The legislation brings into focus two fundamental principles: the importance of the family as a unit of society and [page 76] the rights and obligations of spouses both during marriage and on its dissolution. In this regard, s 43 of the FLA illustrates the central importance of the theme of family protection and respect. This section provides that in making a judgment the Family Court must have regard to: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

the need to give the widest possible protection and (b) assistance to the family as the natural and fundamental group unit of society …

No doubt the legislators’ intentions with regard to preservation and protection of marriage and the family were good, even heart-warming, but they were nevertheless enacted at a time when a social revolution was sweeping the Western world. It was a time of individual freedom and personal fulfilment supported by the notion of no-fault divorce. The prevailing feeling from a large portion of society seemed to be that no adult should be bound to remain in an unsatisfactory marriage: no person should sacrifice personal fulfilment in their commitment to others. Traditional notions of loyalty and ‘till death do us part’ have become redundant. This so-called modern sentiment, however, seems to have done little to allay the fear, anger and resentment of those going through the breakdown of their marriage. In general, being a party to a divorce carries with it no stigma or disapproval in mainstream society. Yet many cases discussed in this book illustrate that individuals going through the process find it difficult to do so with equanimity. 4.3 The FLA simplified divorce law in Australia by stipulating only one ground for divorce, namely, that the marriage has broken down irretrievably: s 48(1). The sole ground is established by proving that parties to a marriage separated, and continued to be separated, for a continuous period of 12 months prior to the filing of the divorce application: s 48(2). The most significant philosophical change brought about by this type of divorce was the abolition of matrimonial fault. In other words, a marital separation, and a subsequent application for divorce, could

be initiated by one or both of the parties, with the Family Court unconcerned about the underlying cause of the marriage breakdown: s 49(1). No-fault divorce, while not universally approved, brought recognition that, at least in the legal sense, divorce ought to be conducted in a humane and civilised manner. It is also an acknowledgment that the reasons for marriage breakdown are diverse and only in exceptional circumstances is it possible to blame one party entirely. There are a number of factors said by various experts to contribute to marriage and relationship breakdown. These assertions, true or otherwise, can be broadly categorised into socioeconomic, cultural and interpersonal factors, including: unemployment and work-related problems; high risk factors within marriage such as addictive behaviours, chronic illness, or the death of a child; blended families; marriage and relationship breakdown in the family of origin; [page 77] ambivalent or negative attitudes towards marriage; the growth of individualism; poor communication skills; poor parenting skills; domestic violence (including physical, psychological and

economic abuse); premarital cohabitation; ease of divorce; geographical or social isolation of the family; migration issues; incompatibility; infidelity; financial problems; and with increasing frequency, drug and/or alcohol abuse. 4.4 Marriage and family breakdown costs the Australian nation at least $3 billion each year. When all the indirect costs are included, the figure is possibly double. When the personal and emotional traumas involved are added to these figures, the cost to the nation is enormous. 4.5 It is interesting to note that until October 2011 there were only four known countries where divorce was not permissible under the law: Andorra, the Philippines, Malta and Vatican City. On 28 May 2011 Malta held a referendum on the question of divorce. Fifty-three per cent of the population voted in favour of divorce which became legal as of October 2011. The first divorce was granted in Malta on 21 October 2011. The couple had been living separately and apart for 21 years.

Nullity — a void marriage

4.6 Proceedings for a decree of nullity (a declaration that there never was a marriage) fall within the definition of ‘matrimonial cause’ in s 4(1) of the FLA. Jurisdiction to hear and determine nullity applications is conferred on the following courts: the Family Court of Australia, which has jurisdiction in all states and territories except Western Australia; the Family Court of Western Australia; and the Supreme Court of the Northern Territory. An application seeking a declaration that a marriage is a nullity is a matrimonial cause pursuant to ss 4(1)(a)(ii) and 44(1A) of the FLA and may be instituted between parties to a marriage or by one of the parties to a marriage. Section 39(4) (b) [page 78] provides that to satisfy the jurisdictional requirements, on the date the application is filed or made to the court, one party to the marriage must be either: an Australian citizen; or ordinarily resident in Australia; or present in Australia: see Marriage of Youssef (1997) FLC ¶92-722.

Grounds upon which a marriage is void

4.7 Although many of the principles on nullity hark back to older times and English law, it seems to the authors that year by year an increasing number of applications are brought before the Family Court in Australia. Almost certainly this is due, in large part, to the many cultures and religions which now make up the Australian population. 4.8 The grounds upon which a marriage is void are set out in s 23B(1) of the Marriage Act 1961 (Cth) (the Marriage Act). This subsection states that such circumstances will exist where: (a) either of the parties is, at the time of the marriage, lawfully married to some other person; (b) the parties are within a prohibited relationship; (c) by reason of section 48 [lack of formalities] the marriage is not a valid marriage; (d) the consent of either of the parties is not a real consent because: (i) it was obtained by duress or fraud; (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 (e) either of the parties is not of marriageable age; and not otherwise.

The expression ‘void marriage’ refers to the situation where a purported marriage is invalid because of some fundamental legal flaw. Despite being described as a ‘void marriage’, in reality no marriage exists.

In Ross Smith v Ross Smith [1963] AC 280 at 314; [1962] 2 WLR 388; [1962] 1 All ER 344 Lord Morris stated: The expression ‘void marriage’ is but a convenient phrase. A void marriage is no marriage. Considered literally the expression is self-destructive and contradictory. But without misleading anyone it serves to denote the situation where a ceremony of marriage does not bring about a marriage. If in a country where monogamy is the rule A is married to B and B goes through a form of marriage with C, there is no marriage between B and C. There will have been what for purposes of convenience alone is called a void marriage.

[page 79]

Bigamy — prior existing marriage 4.9 A marriage is void where either of the parties is, at the time of the marriage, lawfully married to another person: s 23B(1)(a) of the Marriage Act. Such a marriage is bigamous. 4.10 The following cases provide a summary of matters in which bigamy has been considered a ground for a decree of nullity.

In Weekes and Weekes [2009] FamCA 699 at [18] Burr J stated: A marriage where one person is already married to

another person at the time of the marriage is void as it is bigamous. It does not matter that either party is aware that there is a lawful marriage already in existence. Knowledge and intent may be relevant to criminal proceedings for bigamy, but all that the Court has to be satisfied about is that when the second marriage ceremony took place, one of the parties was lawfully married to some other person. This applies even where the marriage takes place after decree nisi but before there is a decree absolute. This matter related to an application by a husband seeking a declaration of nullity of his marriage to his wife whom he married in Sri Lanka. At the time of the marriage, the husband was domiciled in Australia and his wife was a Sri Lankan citizen. The husband was born in 1931 and the wife born in 1961. The husband met the wife as a result of an advertisement placed by him in Sri Lanka seeking a wife. The husband met the wife when he travelled to Sri Lanka in 1999. As a consequence of the marriage, the wife made an application to migrate to Australia. In the relevant information needed to secure a visa, she stated that she had previously been married and that her first husband had died. Therefore, she claimed to be a widow. The Australian Department of Immigration and Citizenship investigated the wife’s circumstances. It was revealed that the death certificate in relation to her first husband, provided by the wife, was fraudulent. In fact the wife had filed for a divorce from her first husband in Sri Lanka and was granted a decree nisi but at the time of the second marriage a decree absolute was not yet in force.

In Hyun and Namgung [2012] FamCA 146 Rees J made a decree of nullity on the ground that at the time of the marriage the respondent was lawfully married to another person. The papers

were referred to the Attorney-General as ‘it would appear … that the respondent has committed [the crime of] bigamy’. Section 94 of the Marriage Act confirms that bigamy is a criminal offence.

In Jenkins and Archer [2013] FamCA 532 Hogan J granted a decree of nullity on the basis that the husband was still married to a Ms C when he purported to marry Ms Archer. In relation to the act of bigamy her Honour referred to the Marriage Act and stated (at [6]–[7]): [page 80] Section 94(1) of the Act provides that a person who is married shall not go through a form or ceremony of marriage with any person. The penalty prescribed is a maximum of imprisonment for five years. On the face of the evidence before me, it appears that a crime may have occurred in that Mr Jenkins may have committed bigamy when on … July 2009 he went through a form or ceremony of marriage with the respondent. Her Honour ordered that a copy of all relevant documents on the court files in relation to the matter before her be sent to the Federal Attorney-General’s Department for investigation of a possible crime of bigamy.

In Paine and Cacatan [2012] FamCA 959 Bell J made a declaration of nullity despite criticising the careless preparation by the solicitors for the applicant. Bell J stated (at [1]–[2]):

This is an application on the part of Mr Paine for a declaration of nullity of his purported marriage to the respondent, Ms Cacatan. It is alleged that he married the respondent in January 2011. The circumstances surrounding such marriage are set out in his affidavit. The matter came on before me and it appeared to me quite clearly that the legal representatives of the applicant had failed to appreciate that one of the most important things in a ground which alleges bigamy, is to prove the existing previous marriage by admissible evidence, as was failed to be done yesterday. [I]t was only [as] a result of the generosity of my associate that I have decided to hear the matter today. … I have put before me … what appears to be a document purporting to be a marriage certificate between the respondent and a Mr S. This document is virtually indecipherable so far as I am concerned, and I would have thought that courtesy would have dictated that a translated certificate, or an attempt to translate the certificate would have been put before me. His Honour was, however, given help from counsel for the husband who had deciphered the errant document to the satisfaction of the court. A further annexure which the wife had submitted to the Australian Department of Immigration asserting she was unmarried was found to be a forgery (for which she had paid 5,000 Philippine pesos). His Honour was satisfied that the wife was still married when she purported to marry Mr Paine (at [4]).

In Padma and Padma [2007] FamCA 670 a decree of nullity was granted. The wife married the husband in New Zealand while she already had a husband in India.

In Olmpei and Banieneva [2010] FamCA 21, the wife married the husband in Australia. The resulting marriage certificate stated that the wife had never married. This was untrue. The wife had a husband in the Philippines with no evidence that he had died. Nor could they have divorced because there is no divorce in the Philippines. A decree of nullity was granted.

[page 81]

Mosswell and Magatjehe [2010] FamCA 378 concerned a husband and wife who were married in Australia in February 2008. In the certificate of marriage the husband declared that he had never been validly married. The wife showed her marital status as divorced. Some time after the marriage the wife discovered a marriage certificate from Sri Lanka which when translated proved that the husband had married there in 2004. That marriage was still in existence. A decree of nullity was granted.

In Jenkins and Rubenstein [2009] FamCA 873 a decree of nullity was granted. A ceremony of marriage took place between the parties in New South Wales in 2006. In May 2007 a child was born. The couple had separated on 11 December 2006. Some months after they separated the wife discovered a letter addressed to the husband enclosing an application for divorce and other documents. From reading the documents, the wife

learned that the husband had married a Ms G in April 2000 in China, and it was clear on the face of those documents that there was a marriage which had not at that time been dissolved. The husband confirmed the truth of the documents. A decree of nullity in relation to the Australian marriage was granted.

In Turner and Turner [2009] FamCA 876 the husband and wife were married in Australia in September 1996 and separated in September 2008. After the separation the wife was packing up documents belonging to the husband when she discovered divorce papers in relation to a marriage between the husband and a Ms ET. It was clear from those documents that a divorce between Ms ET and the husband had not become absolute until 9 January 2000. When the husband purported to marry Ms Turner he was already married to Ms ET. A decree of nullity was granted.

4.11 The following cases provide a summary of matters where persons who are already legally married to each other are prohibited from marrying each other again: Marriage Act s 113.

In De Soysa and Ferrera [2013] FamCA 515 initially the wife had applied for a divorce in respect of her Australian marriage. During her appearance the wife made an oral application that her Australian marriage be declared invalid on the grounds that she had already been legally married to the husband in Sri Lanka. The decree of invalidity of marriage was granted pursuant to s 113 of the Marriage Act and a divorce was granted with respect

to the Sri Lankan marriage. To knowingly enter into a bigamous marriage can have far-reaching consequences for the bigamist. In Amarnath and Kandar [2015] FamCA 1138, before Foster J, the applicant wife married Mr Amarnath in a ceremony in City C, India in 1996. The marriage was [page 82] thereafter registered under the Hindu Marriage Act 1955 (India) with the application for registration having, apparently, been signed by both parties to the marriage. The applicant gave evidence that she thought the marriage conducted in India was a ‘religious ceremony’ rather than a marriage. Nevertheless, there were two children born of the union with the wife asserting that the second child was born while the parties were separated. Subsequently, the applicant married a second man in a New South Wales Registry of Births Deaths and Marriages in 2011. The applicant and second husband completed a Notice of Intended Marriage with the applicant, writing on the form the words ‘never validly married’. In relation to that statement, Foster J stated (at [10]): That assertion was completely false and in contradiction of her procuring the registration of her earlier marriage … The second marriage was declared a nullity on the grounds of bigamy. Foster J stated (at [16]): It is clear that at the time the applicant participated in the marriage ceremony at the registry with the respondent in 2011 she was lawfully married to another person. That declaration, however, was not the end of the matter. Foster J then considered whether a criminal offence had been

committed by the applicant wife. In doing so he said (at [18]– [20]): Section 94 of the Marriage Act provides for the offence of bigamy. The penalty for such an offence is imprisonment for five years. It is noted that on the marriage certificate relating to the marriage in 2011 the applicant is described as “never validly married”. That assertion on the evidence before the Court is blatantly false and appears to have been made simply to facilitate her marriage to the present respondent. As a consequence it is incumbent upon the Court to consider whether the papers in these proceedings should be referred to the Commonwealth Attorney General so as to give consideration as to whether the applicant should be charged with the offence [of bigamy]. In support of the decision to refer the matter to the Commonwealth Attorney-General, Foster J cited several Family Court decisions including that of Mushin J in Hiu and Ling [2010] FamCA 743 in which his Honour considered the statutory pathway under s 94(1) of the Marriage Act in relation to the duty of a judicial officer of the Family Court to refer the crime of bigamy to the Commonwealth Attorney-General. Foster J also considered the common law duty to report findings of ostensible criminality. This occurred in a judgment brought down by the Full Court of the Family Court in T and T (1984) FLC ¶91-588 in which the court stated (at 79,746): In our opinion there can be no doubt (leaving aside any statutory prohibition) that where the evidence or other material discloses breaches of Commonwealth laws a judge … exercising jurisdiction under the Family Law Act

1975 is entitled to bring these breaches to the notice of the Commonwealth Attorney-General. This particular matter related to evasion of taxation, but the principle apples broadly. Not all cases involving bigamy are referred for further consideration in relation to a criminal offence. Clearly it is a decision of a particular judge as to the likelihood of criminality in the facts of the matter before the court.

[page 83] See also Jenkins and Archer [2013] FamCA 532; Ceballos and Ceballos [2013] FamCA 879; Azmi and Shinde [2014] FamCA 824; Hills and Killen [2015] FamCA 536; Mizrah and Elahi [2015] FamCA 1197; Jsing and Kong [2016] FamCA 288.

Prohibited relationships 4.12 A marriage will be void where the parties are more closely related to each other than is permissible under s 23B(1)(b) of the Marriage Act. Marriages that are within a prohibited relationship are marriages between: a person and an ancestor or descendant of the person; or a brother and a sister (whether of the whole blood or the half-blood). In practical terms this means that the marriage of a man is prohibited if the woman is his:

mother; daughter; granddaughter; grandmother; or sister (whether of the whole blood or the half-blood). Likewise, the marriage of a woman is prohibited if the man is her: father; son; grandson; grandfather; or brother (whether of the whole blood or the half-blood). Adoptions 4.13 These prohibited relationships include any relationship that is traced through, or to, a person who is (or was) an adopted child. This means that the relationship between an adopted child and each of his or her adoptive parents is treated as if it were a natural relationship. The adopted child is in the same position in relation to his or her adoptive parents as a natural child of those parents. In addition, however, an adopted child retains his or her natural relationship with his or her natural parents and their children for the purpose of prohibitions against marriage with close relatives. Once a person has been adopted, no matter when, he or she remains the adopted child of the people who are the

adopting parents for the purpose of working out the prohibited relationships, even if the adoption is subsequently annulled, cancelled, discharged or otherwise ceases to be effective. And if a person has been adopted on more than one occasion, that person is considered to be the adopted child of each person who has adopted him or her. So, for example, once a man adopts a girl she can never legally marry him, even if the adoption is later cancelled. [page 84] The term ‘adopted’, in relation to a child, means adopted under the law of any place (whether in or out of Australia) in relation to the adoption of children.

Lack of essential formalities 4.14 A marriage that does not comply with the essential formalities under s 23B(1)(c) of the Marriage Act is void. It is rare for this ground to invalidate a marriage, given the large number of exceptions contained in s 48(2) of the Act. In marriage, as in commercial cases, the courts show a reluctance to set aside a contract where the only flaw is noncompliance with essential formalities. For a thorough discussion of this area, see W and T [1998] FamCA 49. There is a considerable reluctance on the part of the Family Court to declare a marriage a nullity. For instance, in Berda and Kalil [2012] FamCA 712 an application for a decree of nullity on the grounds of a false date on a ‘notice of intention

to marry’ was filed. The application was dismissed on the basis that the false date on the ‘notice of intention to marry’ was not a fatal flaw to a valid marriage because it fell under the protection of s 48(1) of the Marriage Act. 4.15 The following case demonstrates the rare situation where the marriage itself will be void where both parties are aware that the celebrant is not authorised.

In Marriage of Rewal (1991) 103 FLR 384; FLC ¶92-225 at 78,557, although there was a religious ceremony, to the knowledge of both parties it was not conducted by an authorised celebrant. Since the authorised celebrant who subsequently prepared the marriage certificate had not satisfied the minimal requirements for a non-religious ceremony, the marriage was void.

A quite different outcome occurred in the following case, because the wife was unaware that the person who conducted the ceremony was not recognised by Australian law as a marriage celebrant. The court accepted that she was also unaware that the required forms and procedures for a valid marriage were not complied with by that celebrant.

In Oltman and Harper (No 2) [2009] FamCA 1360 the husband sought a declaration from the Family Court that no valid marriage existed between him and his wife. The parties were both born in Somalia. At the date of the hearing the wife was 35 years of age and the husband 40 years of age.

The husband’s position was that they were married religiously under Islamic law but not in compliance with Australian law. In an affidavit before the court the husband said (at [15]): Indeed the religious ceremony which the respondent and I underwent was not a marriage conducted by a duly appointed or duly recognised Islamic Imam or Marriage [page 85] Celebrant. Instead the ceremony was performed by a member of the Somali community not recognised as a person authorised to perform marriages in accordance with the Marriage Act [Marriage Act 1961 (Cth)]. The wife’s position was that they were married under Islamic religious law which was also a civil ceremony within the requirements of the Marriage Act. There were four children of the marriage and each party had three children from a previous marriage. In further evidence the husband stated that the parties underwent a traditional religious ‘commitment ceremony’ for the purposes ‘of me having an intimate relationship with the respondent and for us to be together’. In written submissions for the husband, it was submitted that ‘the ceremony conducted can be seen to be a mere formality that has been instigated by both parties in order to silence concerns raised by the community that they are doing something sinful’. The husband did agree, however, that within the Somali community he and his wife, and their four children, were regarded by all as a married couple and family. In relation to the husband’s evidence that the parties lived in different homes at times in the marriage, the court accepted the wife’s evidence that this situation came about because each of them desired to retain their government-provided housing.

The husband also gave evidence that without notice to, or knowledge by the wife, he sought and was granted an Islamic divorce in September 2008 which was obtained without any hearing but by discussion between the husband and Sheikh F, of the R Mosque. The wife gave evidence in an affidavit that she is a full-time mother and homemaker who lives in government housing with her seven children. She has no formal qualifications and is wholly reliant upon social welfare benefits. The husband does not pay child support for any of his children notwithstanding his alleged income from his employment as a taxi driver which the wife deposed to be approximately $1,200 per week. The wife asserted (at [27]): When the husband and I married I intended to be wedded to the husband for all intents and purposes. There was no delineation between religion or law in my mind. When we married I trusted the husband had organised our marriage so that it would be recognised in the eyes of Allah and in Australian society. I trusted that the husband would care for me and our children as he promised to do at our wedding. The wife further stated (at [28]): The husband and I are recognised as husband and wife by friends and family members. It would be a great source of shame for me amongst friends and family members if our marriage was declared invalid as the husband seeks. Young J was impressed by the evidence of the wife. His Honour said (at [29]): On a careful evaluation of all of the evidence in this case, and my observations of both parties in giving their evidence I wholly accept that evidence of the wife outlined in the previous two paragraphs hereof. I accept

that marriage and its recognition within her community was vitally important to her. I accept that she was of the understanding that the husband had arranged the marriage ceremony properly and in compliance with requirements of local and religious law and custom. In reaching a decision to uphold the validity of the marriage, his Honour discussed the demands of the Marriage Act in relation to the manner in which the marriage ceremony was conducted. His Honour’s discussion is lengthy but greatly relevant to [page 86] the study of this topic. The following are paragraphs taken directly from his Honour’s judgment (at [47]–[66]): VALIDITY OF THE MARRIAGE CEREMONY FAMILY LAW ACT Section 113 of the Act is in the following terms: In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection (4)(1), the court may make such declaration as is justified.

Section 4(1)(b)(i) provides: Matrimonial Cause means: (b) proceedings for a declaration as to the validity of: (i)

a marriage;

(ii)

…

MARRIAGE ACT It is provided in s 41 of the Marriage Act that: A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorised to solemnise marriage as at the place where the marriage takes place.

Section 42 of the Marriage Act provides for the notice that is required to be given and declarations made and,

without setting out each of its sub-sections, it is a fact in this case that the parties did not properly comply with all of the various requirements imposed upon them and upon the authorised celebrant. Section 44 of the Marriage Act required the marriage to be solemnized in the presence of at least two witnesses who are over 18 years of age and this occurred. Section 45 of the Marriage Act provides that: Where a marriage is solemnised by or in the presence of an authorised celebrant, being a Minister of Religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purposes by the religious body or organisation of which he or she is a Minister.

I have not relied upon this section as Sheikh M was not, for the purposes of Australian law, an authorised celebrant as at the date of the ceremony in March 2000 and I have therefore more particularly examined the facts of and surrounding that wedding ceremony and the other statutory provisions within the Marriage Act to conclude a just and proper outcome to this hearing. Section 46 of the Marriage Act required an authorised celebrant to recite particular words to the parties to highlight the nature of marriage, that it is solemn and binding and that it is to be ‘a union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. I am satisfied that that part of this section was complied with on the evidence of the wife and the Sheikh however it is clear that the Sheikh did not and could not have advised the parties that the marriage was performed pursuant to Australian Law. I am however otherwise satisfied that the nature and obligations of marriage were both explained to, stated and understood by the parties. Notwithstanding the above-mentioned provisions, s

48(2) of the Marriage Act provides: (2) A marriage is not invalid by reason of all or any of the following: (a) failure to give the notice required by section 42, or a false statement, defect or error in such a notice;

[page 87] (b) failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration; (c) failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration; (d) failure to comply with any other requirement of section 42, or any contravention of that section; (e) failure to comply with the requirements of section 44 or 46; (f)

failure to comply with the requirements of section 13.

Of particular relevance to this matter is s 48(3) of the Marriage Act which provides: A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that the person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if it were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.

There is no dispute that the parties did not comply with ss 41, 42 and 46 of the Marriage Act as Sheikh M was not an authorised marriage celebrant nor was the requisite notice provided nor words spoken. Nonetheless, the failure to comply with the notice requirements of s 42 does not render the marriage invalid pursuant to s 48(2)(a)–(d) of the Marriage Act. The failure to comply with s 41 can be resolved by s 48(3).

The evidence before the court is that there were two witnesses present at the ceremony in accordance with s 44 of the Marriage Act. There is also evidence that the Sheikh stressed the obligations of marriage to the parties and although this does not wholly comply with s 46 of the Marriage Act, the marriage is not invalid pursuant to s 48(2)(e). The Sheikh did not issue the parties a marriage certificate in accordance with s 50 of the Marriage Act. However, I find that this is not in and of itself fatal to the validity of the marriage. Of greater relevance is the wife’s reliance upon s 48(3) of the Marriage Act. As the Sheikh was not authorised to solemnise the marriage in accordance with the provisions of the Marriage Act, I have examined and determined if either party to the marriage believed that he was then lawfully authorised to conduct the form and ceremony of the marriage. I find on the evidence the wife, clearly and firmly, believed that the Sheikh M, whom she had not earlier met, was empowered to perform the marriage ceremony and in this regard I have relied upon para 26 of her first affidavit filed. I accept her evidence that the husband had informed her that the Sheikh, whom he had arranged to marry them, had been educated and trained in the Islamic faith in Saudi Arabia. I accept that her friends within her local community had given their knowledge and approval as to the qualifications of the Sheikh, though clearly that was somewhat contradicted by the evidence of Sheikh M who confirmed that this was in fact his first local marriage ceremony. The standard to be considered by the court and the test to be applied is whether ‘either party to the marriage … believed that the marriage celebrant was lawfully

authorised to solemnise it’ and in those circumstances ‘the form and ceremony of the marriage shall be deemed to have been sufficient if it were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other’. [page 88] I conclude, upon an application of the Marriage Act and the facts in this case, that the wife, and perhaps the husband, but in any event certainly the wife had good grounds for her reasonable belief that the marriage celebrant was lawfully authorised to solemnise her marriage of March 2000. I find that the wife intended and believed that she had entered into a marriage with the husband that was to be a lawful and valid marriage under Islamic traditional custom and law but performed by a religious celebrant who was so authorised. She accepted all of the arrangements of the husband and herself made no inquiries of the celebrant or in respect of the ceremony. I accept that her understanding and belief was genuinely to marry and to remain living with the husband and thereafter to have children of their marriage. I specifically reject the written submission on behalf of the husband that the intention of the parties was only to have a marriage that is recognised for Islamic purposes. I further reject the submission that the wife was fully aware that the Sheikh was not so authorised to perform a ceremony pursuant to the requirements of the Marriage Act. I do not accept the husband’s evidence that he, at the time of the marriage ceremony, then knew and

understood and distinguished between the parties’ religious marriage and civil marriage. There is no contemporaneous evidence to support this assertion and the Sheikh’s evidence was that he did not discuss an Australian civil marriage with either the husband or wife. Although the husband cited the absence of a marriage certificate, rings, celebration, guests or gifts as evidence of the parties’ lack of intention to lawfully wed one another, I find that this is as a result of the parties’ limited financial resources rather than any lack of intention to be lawfully married. I conclude that the wife genuinely believed the Sheikh was lawfully authorised to solemnise the marriage and that the intent, form and ceremony of the marriage was sufficient to show a firm intention on the part of the husband and wife to become the lawfully wedded spouse of the other.

See also Lin and Nicoll [2016] FamCA 401; Wold and Kleppir [2009] FamCA 178; Mears and Mears [2012] FamCAFC 52. Overseas ceremonies 4.16 If a ceremony takes place overseas, the marriage will be recognised in Australia as valid, if it was valid under the local law at the time it was solemnised: ss 88C(1)(a) and 88D(1) of the Marriage Act. In such a case, therefore, it becomes a matter of getting exact evidence on the formal requirements for a valid marriage in the place where it was celebrated. It is also necessary to see to what extent failure to comply with those formal requirements would make the marriage invalid in the place where it was celebrated. Only if

the marriage would be void where it took place, because of failure to comply with the formal requirements, will it be void for this reason in Australia. Proof of the validity of an overseas marriage is, however, facilitated by s 88G(1) of the Act. This provides that a marriage certificate issued by a competent authority in a foreign country is prima facie evidence of the occurrence of the marriage and of the validity of the marriage. A competent authority is (a) one that is prescribed in relation to a foreign country by regulations, or (b) any other authority that is competent, under the law in force in that country, to issue a certificate or record of a marriage solemnised in, or under the law of, that country: s 88G(3). For the [page 89] difficulty of proving the existence of an overseas marriage in a war zone, see Lin and Nicoll [2016] FamCA 401. Part V of the Act contains provisions for overseas marriages of Australian citizens and members of the Australian defence forces. A marriage performed overseas in accordance with the provisions of the Marriage Act is valid and recognised as such in Australia, though it may not be recognised as such in all overseas countries: s 73. In contrast, recognition of a marriage between same-sex partners is expressly forbidden under s 88EA of the Marriage Act. Section 88D of the Marriage Act appears in Pt VA of the Act, which deals with the recognition of foreign marriages. Section 88D is concerned with the validity of marriages and subs (2) provides:

(2) A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if: … (b) where one of the parties was, at the time of the marriage, domiciled in Australia — either of the parties was not of marriageable age within the meaning of Part II; …

You will recall that a person must have attained the age of 18 to be a person of ‘marriageable age’.

In Re Eldaleh [2016] FamCA 1103 the applicant husband sought a declaration of validity of his marriage to Ms Eldaleh pursuant to s 88D of the Marriage Act 1961 (Cth). The parties were married in the Middle East when the wife was 16 years old. McClelland J dismissed the application on the basis that at the time of the marriage the wife was not of marriageable age. At the time of the hearing the applicant husband was 30 years old and the wife 17. She was also pregnant. The wife played no part in the application before the court, nor was her opinion of the matter canvassed in any way.

Polygamous marriages 4.17 A polygamous marriage is a marriage which permits more than one husband or more than one wife. It is not possible to enter into a valid polygamous marriage in Australia. Section 6 of the FLA, however, provides that for the purposes of proceedings under the Act, a union in the nature of marriage which is, or has at any time been, polygamous, and which was entered into outside Australia, shall be deemed to be a marriage. This means that persons who have entered into a

polygamous marriage somewhere where such marriages are legal are entitled to the assistance, help and relief provided by Australian courts under the FLA. The courts protect this marriage just as if the marriage were monogamous. So a man and woman who have been involved in a polygamous marriage could, in Australia, go to court for a decree of nullity or divorce or an order about children, property or maintenance or seek injunctive relief or counselling advice. [page 90] The FLA, however, does not give blanket validity to polygamous marriages. Polygamous marriages contracted in Australia are void: ss 23(1)(a) and 23B(1)(a) of the Marriage Act. Further, s 88D(2)(a) provides that a polygamous marriage contracted overseas will not be recognised as valid in Australia if either of the parties was, at the time of the marriage, a party to another marriage which was at the time recognised in Australia as valid. A marriage which is potentially polygamous in another country may be declared valid in Australia if, and only if, the circumstances of the marriage under question support that finding. In the huge volume of cases that come before the Family Court each year it not often that the Commonwealth Attorney-General is asked by the court or requests by her/his own volition to intervene in a case. The mechanism for intervention is to be found in s 91(1) of the FLA and when invoked the Attorney-General becomes a party and may intervene in, and contest or argue any question arising in, the circumstances.

The matter about to be discussed involves a marital saga beginning in Iran in 1981 and ending in 2016 in Australia.

In Ghazel and Ghazel [2016] FamCAFC 31 (Ghazel) the Full Court of the Family Court heard an appeal in relation to the validity of a marriage in a foreign country. The case involved Mr Ghazel (the husband), who was born in Iran, and Mrs Ghazel (the wife), who was born in England. The parties were married in Iran in mid1981 in accordance with the law of that country. In addition to the first wife, the husband was permitted by his religion and Iranian law to take up to three additional wives. This meant that the marriage between the husband and wife was ‘potentially polygamous’. In late 1981 the parties left Iran to live in England where, in late 1981, they participated in a marriage ceremony at an English Registry Office. The parties had also registered their Iranian marriage at the Iranian Embassy in the United Kingdom on or about 23 May 1984. In 2003 the wife and their two children migrated to Australia, with the husband following in 2005. Subsequently the entire family became Australian citizens. In February 2008 a joint application for divorce was filed in Australia by the husband and wife. The application referred only to their marriage in England. Accordingly, a divorce order was made. In 2011 the husband married another woman in Iran, and according to the first wife, also married that other woman in Australia in early 2012. In August 2013 in proceedings in Iran initiated by the wife, an Iranian court concluded that the Iranian Government’s civil status register recorded that the Iranian marriage between the husband and wife in 1981 was still in existence as there was no legally registered divorce, and that the husband had also entered into a second marriage. Subsequently the wife made an application under s 88D of the Marriage Act for a declaration of validity in relation to the 1981 marriage.

The wife was unsuccessful. Hogan J (at [31]) refused to make the declaration sought on the basis that amendments made to the Marriage Act by the Marriage Amendment Act 2004 (Cth) prevented the recognition in Australia of a potentially polygamous marriage. [page 91] The wife appealed the decision of Hogan J and the matter came before Finn, May and Austin JJ. As the matter before the court was one of public interest, the Commonwealth Attorney-General was requested to intervene and he did so by submission and the appointment of Mr Gleeson SC, Solicitor-General of the Commonwealth, as Counsel in the matter. In allowing the appeal of the wife, the Full Court stated (at [19]): The Commonwealth’s position as advanced by the Solicitor-General on behalf of the Attorney-General was that a potentially polygamous foreign marriage which would have been recognised under Part VA of the Marriage Act prior to the amendments made to the Act in 2004, will still be recognised notwithstanding those amendments, and accordingly, in this case the first Iranian marriage would remain valid under Australian law The gravitas of this decision lies in the intervention of the Commonwealth Attorney-General and the Commonwealth Solicitor-General’s appearance as Counsel. On the face of it, the decision concerned the husband and wife only, but there is a far wider application. As the Australian population continues to grow, encompassing different religions and cultures, so too will the question of validity of potentially polygamous marriages. Ghazel makes it plain that the marriage ‘first in time’ prevails. There is, however, a further consideration. This is whether there

may also be a greater number of criminal proceedings under s 94 of the Marriage Act in circumstances where a second marriage is contracted while the first marriage is still on foot.

Lack of consent 4.18 A marriage is void if the consent of either party is not a real consent because of duress, fraud, mistake or mental incapacity. While the requirement of ‘real’ consent simply reflects the principle that marriage should be a voluntary arrangement, the difficulties of determining a person’s actual mental state at a particular time have led the courts to insist on a considerable amount of evidence before a finding of lack of consent.

In Marriage of Teves III and Campomayor (1994) 18 Fam LR 844 at 855; (1995) FLC ¶92-578 Lindenmayer J pointed out that it is the evidence of one’s state of mind at the time of the ceremony which is critical, and ‘in this, evidence about the ceremony, and events occurring during and immediately before or after it, can be extremely important’.

For a discussion of the meaning of consent, see AK and NC [2003] FamCA 1006. Duress 4.19 A person entering into a valid contract of marriage must be allowed to do so without fear or coercion. To be

forced to do otherwise vitiates consent and renders the marriage invalid: Di Mento v Visalli (1973) 1 ALR 351; Szechter [page 92] v Szechter [1970] 3 All ER 905; Buckland v Buckland [1967] 2 All ER 300. Threats or fear, for example, might have been brought to bear on one of the parties to a marriage by the other party, by someone else or by all of the circumstances surrounding the marriage. Earlier cases on duress refer to the need for a party’s mind to be ‘paralysed’ or ‘unhinged’ by fear. It was necessary that the fear be generated as a result of serious threats of death, physical injury or imprisonment. It was not sufficient to invalidate a marriage for a person with a strong will to have simply imposed that will on another party suffering from a weak, impressionable personality or state of mind.

In Scott v Sebright (1886) 12 PD 21 at 24, the petitioner was an heiress whom the suitor made quite ill and incapable of resisting his coercion by threatening to bankrupt her unless she married him. She did so reluctantly, immediately after he threatened to shoot her if she showed she was not acting freely. The subsequent marriage was held to be a nullity as the petitioner had been reduced by mental suffering to a state in which she was incapable of offering resistance to the respondent’s coercion and threats. Butt J held that there can be no consent to marry if a party is in such a state of mental incompetence, whether through natural weakness of intellect or from fear

(whether reasonably held or not), that he or she is unable to resist pressure improperly brought to bear.

4.20 A subsequent case illustrates even more graphically the extent of the coercion needed to constitute duress.

In Cooper v Crane [1891] P 369, the petitioner refused an offer of marriage. Her suitor took her to a church ostensibly to attend an ordinary service. Once there he said to her ‘you must come into the church and marry me or I will blow my brains out and you will be responsible’. She did, with no apparent reluctance. Later she tried to void the marriage on the ground of fraud or duress. She failed because being of full age and sound mind, and understanding the ceremony she was going through in public showing no signs of constraint, she could not rebuff the presumption that she consented to the marriage. Collins J advanced a test for such a rebuttal (at 376–7). The petitioner should have been: … so perturbed with terror that her mind was unhinged, and she did not understand what she was doing … or that though she understood what she was doing her powers of volition were so paralyzed that, by her words and acts, she merely gave expression to the will of the respondent, and not her own.

4.21 More recent cases have indicated that it is not so much the type or magnitude of threat, or the ‘reasonableness’ of the response, but the actual effect on the particular person’s mind that is the crucial concern. The matter following

provides an excellent example of the discretion of the Family Court and the manner in which very old principles of law can be adjusted to a modern setting. [page 93]

In Marriage of S (1980) 5 Fam LR 831; FLC ¶90-820, the applicant was 16 years old when she married according to the rites of the Egyptian Coptic Orthodox Church. Her parents had arranged the marriage for her. Her husband-to-be was living in Egypt at the time, and they became engaged while on a visit to Egypt. The applicant was totally opposed to the marriage but came under strong pressure from her parents to go through with it. There was no suggestion of physical harm or danger, but the girl was subjected to very intense emotional pressure. She was, the court concluded, so affected by the ‘non-violent but nevertheless controlling parental coercion’ that she was in a ‘psychological prison’ and was unable to exercise free consent. In seeking to distinguish some of the earlier cases, Watson SJ stated (at 839): 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 … This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression. The marriage was declared void. Earlier in his judgment his Honour emphasised the extreme youth of the applicant when he stated (at 837–8): Section 43(c) requires the court to have regard to the need to protect the rights of children and to promote

their welfare. The applicant is still a child and … [she] is entitled to the court’s protection of her rights. She, and not her parents, has the right to choose whom she shall marry. That is a right to self-sovereignty to which culture, religion and family must bow. Parents may oppose, persuade, influence and even arrange, but the decision whom one shall marry is the right of that person alone. … In the present case the applicant was not threatened nor was she in any danger. She was a victim of family loyalty and concern, below the age of majority and on her evidence unable to initiate advice from outside her family. She went on with the wedding not because of terror but because of love, not because of physical threat to herself but because of concern for her younger sisters. She was caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience. If she had ‘no consenting will’ it was because these matters were operative — not threats, violence, imprisonment or physical constraint.

It may be argued that the outcome in this case hinged, to a greater or lesser degree, on the age of the applicant, and her strong desire on religious grounds for a decree of nullity rather than dissolution of marriage. Nevertheless, the case would appear to represent current law in Australia at least until the Full Court of the Family Court considers this matter. What must, however, be borne in mind is the breadth of discretion open to a judge of the Family Court and therefore the ease with which one set of facts may be distinguished from another.

In the matter of Dave and Karia [2016] FamCA 414 the parties, who were of Indian background, underwent a ceremony of marriage at Parramatta Registry Office on 13 December 2013. In a joint application the parties alleged that they married ‘under immense pressure from their respective families and in fear of physical harm’. Rather [page 94] curiously, however, from the evidence given in the matter the family of the husband (particularly the father of the husband) found all thoughts of a marriage between his son and Ms Dave unpalatable. He objected to the fact that Ms Dave was older than the husband; their relationship had always been in the nature of brother/sister yet they now lived in a de facto partnership; and, most displeasing, they were of different culture and caste. Consequently, the alleged pressure against the marriage came from the family of the husband in a phone conversation between father and son. The father allegedly said: How can I put some sense in you and make you understand that you are not doing any good being in a relationship with her. You behave like a donkey. In fact, a donkey will have more brains than you. In the same conversation the father allegedly threatened that he would come to Australia, and if the husband continued the relationship he would ‘break arms and legs and keep the husband in a corner for the rest of his life’. Given the totality of the evidence before it, the court was unsympathetic to the assertions of the parties that their marriage resulted from duress and lack of real consent based on the need to placate the husband’s family.

4.22 In the case below the Family Court was yet again mindful of the responsibility it has in protecting the young.

In the matter of Madley and Madley [2011] FMCAfam 1007 a child (16 years) made an ex parte application for an order of the Family Court placing her on the Airport Watch list. The reason behind this courageous request was that she feared her parents taking her out of Australia and forcing her into an arranged marriage in Lebanon. In establishing the right of the applicant to seek an order before the Family Court, Harman FM stated (at [2]–[5]): Ms Madley has standing under the legislation to bring an application on her own behalf, and she is competent to do so, both at law and under the provisions of the legislation particularly s 65C [see Chapter 5] … The application is one that is becoming increasingly common both before this court and the Family Court. The application arises from circumstances wherein this young person’s parents have made arrangements for her to marry a person whom, on her evidence, she has met on one occasion. The wedding has been planned to take place in a little under two weeks time and would involve this child flying from Australia to a non Hague convention middle eastern country for the purpose of that marriage occurring. His Honour then made it plain (at [6]) that: The marriage, if it were to occur in Australia under the provisions of the Marriage Act 1961, would require both a court order and parental consent. Harman FM agreed to the need for protection of the applicant and made orders in the following terms (at [33]):

(1) Pending further order, each of Mrs Madley, being the mother of Ms Madley, born [in] 1995, and Mr Madley, being Ms Madley’s father, shall be and are hereby restrained from removing, attempting or causing Ms Madley’s removal from the Commonwealth of Australia. [page 95] (2) Within 72 hours (ie by 4.30 pm on Monday, 4 April 2011) any passport for the young person, Ms Madley, born [in] 1995, is to be surrendered by Ms Madley’s parents, or such of them as possess it, to the Registrar of this court, and thereafter held by the Registrar pending further order. (3) In the event that Ms Madley’s passport is not surrendered to the Registry of this court by 4.30 pm on 4 April 2011, then as soon as practicable following the commencement of business 5 April 2011, a request is to be forwarded to the minister seized with the responsibility for the issue of passports requesting the immediate cancellation of any passport for the child, Ms Madley, born [in] 1995. In forbidding the parents of Ms Madley from removing her from the jurisdiction, his Honour made further orders (at [33]): (4) Until further order the applicant and the respondent, by themselves, their servants or their agents or of Ms Madley’s own volition are restrained from removing or attempting to remove Ms Madley born [in] 1995 (female) from the Commonwealth of Australia. (5) The Marshal of the Federal Magistrates Court of

Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said young person from the Commonwealth of Australia. (6) Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. (7) The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia. (8) The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders. His Honour made further orders directed against Ms Madley’s parents, restraining them from: (a) Assaulting, molesting, harassing, threatening or otherwise intimidating Ms Madley. (b) Questioning Ms Madley with respect to these proceedings, or requesting, permitting or allowing any other person to do so. (c) Causing Ms Madley’s removal from any school which she presently attends and at which she is enrolled. In noting that these orders were made for Ms Madley’s personal

protection and welfare, his Honour said that ‘an automatic power of arrest without warrant applies pursuant to s 68C in the event that any police officer believes, on reasonable grounds, that the injunction has been breached’.

In Marriage of Teves III and Campomayor (1994) 18 Fam LR 844; (1995) FLC ¶92-578, Lindenmayer J had no hesitation in following the reasoning laid down by Watson SJ [page 96] in Marriage of S (1980) 5 Fam LR 831; FLC ¶90-820. The outcome in the later case, however, was quite different. In Teves, the petitioner was alleging duress as a result of various acts of violence by the respondent. The court found that the details of violence were lacking in particulars, largely uncorroborated, unaccompanied by medical evidence and related mainly to alleged incidents prior to the date of the marriage. It was consequently held that the petitioner had not satisfied the burden of proof on the balance of probabilities, and the application for a decree of nullity was refused. And on the question of the need for the alleged duress to be in close proximity to the ceremony, Lindenmayer J stated (at 845): It is duress at the time of the marriage ceremony that is critical. This can be induced by events prior to it, but in the end it is for the applicant to show that at the time she gave her consent at the ceremony, some overbearing force was operating.

In the matter of Broda and Docas [2007] FamCA 369 grounds for nullity were not made out. Young J expressed sympathy for the wife seeking to have her marriage declared a nullity on the grounds of duress, but the facts before the court did not support her application. The matter initially came before the court by way of an application by the husband for a divorce order. At the hearing for a divorce before a Federal Magistrate the wife claimed that the marriage was a fraud and had never been consummated. On that basis the Federal Magistrate made an order that the application for divorce be suspended and that the wife make, file and serve an application for nullity and supporting affidavit before 14 March. The proceedings were then transferred to the Family Court. The wife failed to comply with the procedure laid down in the order of the Federal Magistrate. Eventually, however, the application for a declaration of nullity came on for hearing before Young J in the Family Court. It was established that the parties married in September 2004 in a private ceremony performed by a marriage celebrant and a copy of the marriage certificate was on the court file. The wife, in seeking a declaration of nullity, gave sworn evidence to supplement her affidavit material. Her evidence, which was accepted by his Honour, made it clear that there was very considerable conflict, tension and abuse within the relationship and then the marriage. It was also apparent in her evidence that she now based her application on duress rather than fraud. His Honour stated (at [11]): The essence of the duress is that the wife was compelled and had no choice in marrying the husband because of threats and violence. There is likely considerable truth in that, but it certainly does not

explain the whole of the circumstances leading up to the marriage ceremony. For whatever reason after the marriage ceremony the wife returned to live in her family home, but subsequently did on occasions and for various periods ‘give the marriage a go’ and live with the husband and have [page 97] consensual sex. There were other occasions where it was alleged that there were violent assaults and she was repeatedly raped. They are matters before the criminal court to which I will not make any comment and that will stand the test of evidence in the County Court. His Honour stated (at [7]): The defendant is the husband and whilst the state is prosecuting, the primary witness is the wife and complaints are of rape, sexual abuse and associated matters, particulars of which are not currently before this court. In relation to the question as to whether the husband should give evidence and be cross-examined on the matters yet to be heard in the County Court, his Honour stated (at [14]): I have not invited the husband to give evidence. I do not think he could further expand on those matters and I do not want cross-examination on any criminal issues, that will happen next week in a far more difficult trial. What was apparent to the court was that the husband was happy to either be granted a divorce order or a decree of nullity. In bringing down a judgment sympathetic to the wife but nevertheless refusing to grant a decree of nullity, Young J stated (at [12]–[13]):

I have endeavoured to understand circumstances whereby I could grant a nullity of marriage. It is clear that to the wife there is great importance on cleansing the past and not wanting to be known as a divorced person. Clearly it would be a matter for the wife’s mental stability and her own outlook on life to have that past memory wholly and completely erased as a nullity might do. The court, however, is required to act within stipulated guidelines as to whether there can be a nullity and not a divorce. Of course there is an irretrievable breakdown of this marriage and the parties could be immediately divorced. I have carefully evaluated the wife’s evidence and also the agreement of the husband to a nullity. This, however, is not a consent matter. I cannot simply provide a nullity because it is asked for by both parties. The guidelines have to be met and, unfortunately, in this case, with all the good intent in the world to grant a nullity, it just does not meet the required standard, however liberally I was prepared to interpret that standard. His Honour dismissed the nullity application but granted a divorce. To assist the parties he abridged time and the divorce order was final.

In contrast duress was all too obvious in the matter of Kreet and Sampir [2011] FamCA 22. The Family Court refused to recognise the arranged marriage of a young woman to a man she had never previously met, saying the union could not be valid under Australian law because the girl had not been truly free to consent. Ms Kreet (the wife) married Mr Sampir (the husband) in June 2009 in India. The circumstances of the marriage led the wife to

seek an annulment of the marriage and in the alternative that it was not a marriage recognised under Australian law. The facts set out below are taken from the judgment of Cronin J. [page 98] The wife was born in Australia. Her parents were born in India and remained closely connected to their former country’s culture. The parents were strict in that regard and were strongly against much of Australian culture. The wife was not allowed to cut her hair or wear skirts or dresses unless they were part of her school uniform. In July 2007, the wife electronically met Mr U but the relationship remained a secret, he being in Melbourne and she in Sydney. In June and July of 2008, the wife told her parents of the relationship and they were unhappy about it. The parents told her she could not marry Mr U and demanded she cease the relationship. They threatened her that if it did not cease, they would take her to India and arrange a marriage for her to someone else. It would appear that their objection related to Mr U’s ‘caste’. In the midst of this family turmoil, the wife’s father kept her away from school for a week, confiscated her telephone and blocked her internet access. Despite that, the wife continued the relationship. In approximately October 2008, when the wife was still 17, her father told her that when she turned 18, they would go to India and find her an appropriate husband. The father said that he had been considering some of the wedding proposals from the wife’s Indian uncle. The wife completed her Year 12 exams in November 2008 and without informing her parents, and clearly against their wishes, moved to Melbourne to live with Mr U. The parents then called

her repeatedly, endeavouring to convince her to return to Sydney. She was reported to the police as missing and an investigation ended with her signing a statutory declaration for police that she was fine and living in Melbourne of her own free will. The parents travelled to Melbourne on 22 November 2008 in an attempt to convince her to return. They told her that she could marry Mr U once she turned 18. On the following day, the wife and Mr U went through an ‘engagement ceremony’ in the presence of the parents. His Honour stated (at [15]): I accept the wife’s understanding that this was a ‘proclamation in front of God’ that she and Mr U would get married. The wife returned to Sydney with her parents but they resumed their attempts to convince her to end the relationship with Mr U. The father made direct threats to Mr U to kidnap and rape his mother and sisters. In January 2009, the wife’s father slapped her across the face on two separate occasions and hit her on the back. The wife then moved back to Melbourne to live with Mr U on 8 January 2009 and again attended a police station to declare that she was living in Melbourne of her own free will. On 31 March 2009, the parents again came to Melbourne to persuade her to move back to Sydney. They apologised to her and asked her to forgive them and offered as an enticement a ‘proper wedding’ for her 18th birthday. The parents suggested that they get married in India and the wife went back to Sydney. On 4 April Mr U came to Sydney and the wedding was discussed in detail. [page 99] The wife was convinced by her parents to do things traditionally

and in India but there was no doubt that her marriage was to be to Mr U. On 24 April 2009, the wife and her mother flew to India and were later joined by her father. Upon their arrival in India, discussions began about an appropriate suitor and the wife’s passport was taken from her. She was refused permission to speak to Mr U by telephone. The wife’s parents then introduced the man who was to become her husband. The respondent attended at the house of the wife’s uncle with a number of other relatives and was asked publicly if he wanted to marry the wife. He agreed without meeting her. The wife was then asked if she wished to marry the respondent but she did not respond. Her father told her that he would have Mr U’s sisters and mother kidnapped and raped. In regard to this his Honour stated (at [26]): I accept that the wife believed at this time that if she refused, her father would carry out the threat, and that she would not be able to leave India until she had complied with any marriage arranged by her parents. When asked again publicly if she would consent to the marriage, she agreed. His Honour further stated (at [27]): I accept also that the wife begged her parents not to force her to go through with the marriage and her father’s response was to continue to threaten harm to Mr U’s family. The wife said, and I accept, she contemplated suicide. The wife was not required to speak at any time during the marriage ceremony but simply to walk four times around the altar. Following the marriage ceremony, the parents returned to Australia and the wife moved to the respondent’s (husband’s)

house where he lived with his parents. The wife there refused the respondent’s attempts at physical intimacy which culminated in assaults. In late July or August 2009, the wife submitted the respondent’s Australian visa application to the authorities and eventually flew to Sydney on 11 October 2009. She stayed with her parents for several weeks before returning to Melbourne on 11 November 2009 to live with Mr U. She then withdrew her sponsorship of the respondent’s visa application. Thus, the husband did not have the opportunity to come to Australia. The relationship of the wife with the parents declined to such an extent that there is now an indefinite intervention order against the wife’s father. In granting an annulment of the marriage his Honour stated (at [41]–[43]): Cultural practices are sensitive issues but in respect of this application, the law to be applied is that of Australia. If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way. Arranged marriages such as would appear to have been the parents’ intent, must not carry with them lack of consent. I am satisfied that the parents adopted a position which may have been based upon a cultural practice which is unacceptable to Australian law. [page 100] I am satisfied that the wife’s physical state at the time of the ceremony was such that she was physically and mentally overborne. Her consent was not real because it was obtained by duress [within the meaning of s 23B of the Marriage Act 1961 (Cth)].

His Honour continued (at [44]): I am satisfied the marriage did take place as alleged but that the consent of the wife was not real, it having been obtained under duress.

The facts in Robert and Golden [2011] FamCA 443 illustrate quite starkly the manner in which the modern notion of duress contrasts with cases such as Scott v Sebright (1886) 12 PD 21 and Cooper v Crane [1891] P 369. From a strict legal stance it may be argued that we have come too far. In this matter the husband was the applicant. The wife did not defend the application for a decree of nullity against her. When the matter came before the court she did not appear in person or by affidavit. Nor did she appoint a legal representative. The matter was therefore heard in her absence. In seeking a decree of nullity the husband relied upon s 23B(1)(d) (i) of the Marriage Act 1961 (Cth) which provides that a marriage is void in circumstances where the consent of either of the parties to the marriage is not a consent freely given as it was obtained by duress. The following evidence was placed before the court and Rose J found it to be factual. The parties married in November 2010. A marriage certificate was produced to the court by way of annexation to the husband’s affidavit. His Honour accepted the marriage certificate as evidence that a lawful marriage ceremony had taken place between the parties. The parties met in 2004. Between that time and the marriage taking place the parties lived together for a period of six months

in 2008. Other than that six-month period their relationship was one of ‘boyfriend and girlfriend’, or did not exist. In early September 2010 the husband told the wife that he did not want a serious relationship and ‘we should stop seeing each other’. The wife replied that she was pregnant. The husband asked her to have the pregnancy terminated. The husband’s further evidence in relation to that matter was that the wife had previously terminated pregnancies after she had ‘fallen pregnant to me in the past’ and that such terminations took place ‘as neither of us wanted to have a child’. The response of the wife was that she would not terminate the pregnancy unless the husband agreed to marry her. On the evidence of the husband, on asking the wife why she insisted on marriage the wife replied ‘because we were meant for each other and I want to make sure that you don’t leave me again’. The husband further gave evidence that in the weeks following he did not succeed in convincing the wife to terminate the pregnancy. [page 101] Although the court does not reveal the exact date of the marriage taking place, the month was November 2010. In that same month the wife informed the husband ‘I’ve had the termination now because we are married’. The parties’ relationship continued until Christmas Day 2010, after which they lived separate and apart from each other. In the conclusion of the evidence contained in the husband’s affidavit he stated (at [20]): I say that but for the fact that the respondent would not

terminate her pregnancy unless I married her I would never have married her. I felt therefore there was nothing I could do but to marry her to ensure she undertook the termination. In granting the application of the husband, his Honour stated (at [22]): I have considered the helpful written submissions made on behalf of the applicant which are persuasive. I have determined to grant the decree of nullity as sought, albeit that this is a borderline case. The result may well have been different had the application been defended. In relation to the ground of duress and the order that should follow Rose J found that ‘the court is satisfied that the ground is proved’ (at [27]). It is difficult to say whether this case will gain approval in future applications on like ground and similar facts. With respect to his Honour, grave questions arise as to whether, even on the most liberal finding, there was evidence of duress sufficient for granting a decree of nullity. In reaching a decision his Honour admitted (at [27]): With some hesitation, I have concluded that duress has been established by the husband due to the unchallenged facts which lead [sic] to him entering into the marriage which of their nature in this particular case amounted to ‘sufficient oppression from whatever source’ which acted upon him ‘to vitiate the reality’ of his consent at the time of the marriage.

The matter following illustrates yet again how the law in relation to duress and nullity has evolved in Australia. Our position as a nation of many migrants obliges the judiciary in

the Family Court to deal with cultural and religious aspects of parties appearing before them.

In Nagri and Chapal [2012] FamCA 464 both the husband and wife were born in India and belonged to the Hindu culture and religion. In this culture it is not uncommon for parents and close relatives to play an important part in seeking a marriage partner for a young family member. In this case the husband applied for a decree of nullity in relation to his marriage to Ms Chapal, saying that he was ‘subjected to duress’ at the time of the marriage (at [3]). The respondent Ms Chapal did not oppose the granting of a decree of nullity but she did make it clear that her consent to the marriage was unqualified and a true consent (at [4]). Additionally, unlike many such matters that come before the court, there was no suggestion of threats or unkindness on the part [page 102] of the husband’s family. To the contrary, the uncle of the husband was generous with financial support and provided employment (at [5]). Collier J found that the consent of the husband was not a true consent because it was induced by matters of culture, religion, family loyalty and financial dependence, particularly on his uncle. A decree of nullity was granted (refer to [15]–[25] for a summary of the legislation and case law reviewed). Collier J compared the facts of this case with that of the Marriage of S (1980) 5 Fam LR 831; FLC ¶90-820 (see above at 4.21) and although the ages of the parties in these matters were different, that strong sense of culture and loyalty resulted in the consent to marry not being voluntary.

Tirta and Lim [2012] FamCA 63 is an example of an unsuccessful application for a declaration of nullity based on duress. The case illustrates how a lack of convincing evidence is fatal to a claim of duress. Rees J dismissed the application where the husband alleged ‘that he entered into the marriage because he succumbed to pressure from his parents to obtain permanent residency in Australia and because his religious and cultural obligations obliged him to do what his parents wanted’ (at [17]). The facts of the case are outlined at [7]–[17]. Rees J examined the grounds on which a marriage is void under s 23B of the Marriage Act including duress contained in s 23B(1) (d)(ii) and the relevant case law, in particular, Lindenmayer J’s judgment in Marriage of Teves III and Campomayor (1994) 18 Fam LR 844; (1995) FLC ¶92-578. Rees J concluded (at [22]): There is no evidence before me that pressure was maintained by the husband’s parents on him between May 2010 when he applied for the prospective Marriage Visa and 15 March 2011 when he arrived in Australia. There is no evidence that any pressure was applied to the husband by his parents between 15 March 2011 and … March 2011 when the marriage occurred. Nor was his Honour satisfied with the amount of inadmissible evidence proffered by the husband (at [23]–[26]): In so far as I have any evidence, the husband’s affidavit contains statements of his parents’ wishes, about his religious and cultural obligations, of threats by his parents that their health will suffer and of psychological manipulation. Had an objection been taken to much of the husband’s affidavit evidence, it would have been rejected. The husband’s assertions and conclusions are not admissible evidence. Evidence could have been given by the husband’s

parents as to their expectations of the husband and the pressure they placed on him. Indeed I enquired whether such evidence would be forthcoming. In the absence of any explanation for the absence of evidence from the husband’s parents, I must assume that their evidence would not have assisted the husband’s case. There was no admissible evidence before me of the relevant religious, filial or social obligations of the husband’s culture, family or religion, such as could have been provided by an appropriately qualified expert. [page 103] The standard of proof, having regard to the gravity of the application is determined having regard to s 140(2) of the Evidence Act 1995. Assertions, conclusions, indefinite testimony and indirect inferences are insufficient to ground a finding of fact. His Honour concluded (at [27]): In the absence of admissible evidence, and regard to Justice Lindenmayer’s admonition decree of nullity should not be issued lightly, I satisfied that the husband has established the for relief and the application will be dismissed.

having that a am not ground

The outcome in Hallas and Kefalos [2012] FamCA 860 illustrates that a major depressive illness and considerable reluctance to enter a marriage will not equate to duress. In this matter the wife sought a decree of nullity on the ground that her consent to the marriage to the husband was not real consent because of

duress and lack of capacity to consent. In evidence it was claimed that frequent incidents of duress from the husband, her parents, medical advisors, priests and many friends overbore her will, forcing her to marry the husband. She established that she has a lifelong connection to the Greek Orthodox Church and that the counsel and guidance of her priests and members of her congregation were very important to her (at [28]). Ryan J found that although the wife was deeply depressed and reluctant to enter a marriage with the husband, the very strong advice she received to marry did not amount to duress. His Honour also found that medical evidence did not establish that her depressive disorder deprived her of judgment or insight into whether she should or should not enter into a committed relationship with the husband or ultimately marry him. His Honour stated (at [64]): Whilst there is no doubt that the wife looks back with unhappiness on this period of her life, and that through much of the period of cohabitation she was unhappy, the totality of the evidence does not establish that the pressure placed upon her was of such gravity as to vitiate her consent to the marriage.

The matter following contains all the elements of very serious duress but was dealt with under s 88D(2) of the Marriage Act rather than s 23B of that Act because it related to a marriage contracted in a foreign country.

In Sita and Bedi [2015] FamCA 1105 the applicant wife asserted grave evidence of duress which vitiated her consent to entering a marriage with the respondent husband (who took no part in the proceedings, but was served with relevant court documents).

The wife was born in India in 1993. She first came to Australia with her mother and brother in early October 2013 to visit her father, who was then living and working in this country. The wife, as did her mother, gave evidence by way of [page 104] affidavit setting out the manner of duress on which she relied in her application. She swore on affidavit that: she had no courtship with the respondent, he was merely a distant relative of someone in her extended family; she did socialise with him on occasions, but saw him only as a friend; she agreed to have dinner with him in order, he claimed, to meet his friends, but nobody joined them; she was given an adulterated drink which caused her confusion and made her dizzy; she was then locked in a bedroom and forced to sign documents under threat of a gun and the added threat of having acid thrown on her face if she refused; she took the threat seriously because she knew such attacks were common in India and she was extremely fearful he would disfigure her; the respondent threatened to harm her immediate family if she did not do as he ordered; the documents she had unknowingly signed were necessary for a marriage arranged by the respondent to be performed the following day; she was not allowed to leave the room in which she was

locked until the next day when she was taken to a room decorated to look like a religious temple; the respondent carried the gun; she was given a head scarf and flowers and she and the respondent participated in some Hindu rituals and had their photographs taken; the Hindu rituals were, in fact, a ceremony of marriage according to the requirements of the Hindu Marriage Act 1955 (India) and the marriage was registered on 7 October 2014; although she signed the registration documents she did so out of fear of the respondent; on the day of registration of the marriage the husband sexually assaulted the wife; thereafter the wife was kept under the surveillance of the husband and his family; when she did have the opportunity to speak to her mother, her terror of the husband forced her to pretend that the marriage was normal; the wife’s parents and brother returned to Australia on 31 October 2014; some days after the return of her family to Australia the wife was left alone and she telephoned her mother and explained the circumstances of the marriage; her mother suggested they would use subterfuge by way of a ‘present’ of money to the couple, to be collected at the parental home; her mother had the wife’s passport and booked her daughter a seat on a flight to Australia; [page 105]

the relatives distracted the husband allowing the wife to escape to be driven by a family member to the airport in order to catch a flight to Australia; the husband continued to try to contact the wife in Australia until her father said he would report the matter to the Indian and Australian police. In declaring that the marriage solemnised between the applicant and respondent in City B, India on 4 October 2014 and registered on 7 October 2014 is not recognised as a valid marriage in Australia, Hogan J revisited many of the judgments discussed above and emphasised the serious nature of the evidence needed to convince the court of duress amounting to such fear and pressure as to vitiate real consent.

In Sita and Bedi the evidence from the applicant wife and her mother satisfied the evidentiary burden of ‘the balance of probabilities’. The need for convincing evidence cannot be overstated. The burden of producing such evidence lies with the applicant. Allegations of themselves will not sway a reluctant court. See, for example, Crocker and Melati [2014] FamCA 365. Fraud 4.23 The ground of fraud in s 23B(1)(d) of the Marriage Act has typically been construed narrowly, and does not extend to fraudulently induced mistakes as to the other party’s character, qualities or motivations for entering the marriage. Both Australian and English cases indicate a clear reluctance to allow fraud to vitiate an otherwise valid marriage. Further, both jurisdictions have produced equally perplexing findings. In the English case of Moss v Moss [1897] P 263 at 269, Sir

Francis Jeune refused to accept the notion that fraudulent misrepresentations which induced consent should be sufficient to be a ground for a nullity. He stated: … when … fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearances without the reality of consent.

The matter following might well be seen in light of the old saying ‘sad facts make bad law’ or more correctly ‘bad facts make bad law’ and that may be so, but equally it is a reflection of the duty of the Family Court to protect children and young persons.

In Marriage of Deniz (1977) 31 FLR 114; 7 Fam LN N3; FLC ¶90252, a woman of Lebanese descent applied to the court for a decree of nullity of her marriage on the ground that her consent had not been real because it was obtained by fraud. The respondent was Turkish and, at the time of the ceremony, was seeking permanent residence in Australia. To establish a basis for a further application for residence he set out to marry an Australian citizen. He obtained the permission of the applicant’s parents and she left high school, convinced that he loved her, and ‘married’ him. The [page 106] marriage was never consummated and, when informed of the respondent’s reason for marrying her, the applicant wife suffered a nervous breakdown and attempted suicide. The respondent’s further application for permanent residence, which he lodged immediately after the ceremony, was also

unsuccessful and he was returned to Turkey. There was evidence that divorce would be a particularly serious thing for a woman of the applicant’s cultural background. Indeed, she told the court herself that she would prefer to die rather than be divorced. Frederico J granted a decree of nullity under s 51 of the FLA. He found that the respondent’s behaviour constituted fraud within the meaning of the term in s 23 of the Marriage Act. His Honour considered that the word ‘fraud’ in s 23B(1)(d) had a wider meaning than at common law, and that on the facts fraud had gone ‘to the root of the marriage contract’. His Honour considered that there had indeed been a ‘total failure of consideration’, and ‘a total rejection of the institution of marriage’.

4.24 Many of the Australian cases of recent times relate to ‘immigration fraud’ cases. These cases illustrate a considerable divergence of opinion among the judiciary. A number of later decisions by single judges of the Family Court have unanimously refused to follow the reasoning and result in Marriage of Deniz.

In Marriage of Otway (1986) 11 Fam LR 99; (1987) FLC ¶91-807, an Australian man applied for a decree of nullity of his marriage to a Filipina woman, arguing that his consent was obtained by fraud. The parties were married in September 1985 after applying for an abridgment of the required time under the Marriage Act. The wife’s visa expired at the end of September 1985. The parties separated on 7 January 1986. The husband argued that the wife had married him in order to remain in Australia so that at some future time she could resume a de

facto relationship with another man. He claimed that he would not have married her had he been aware of her intentions. McCall J was satisfied that the husband’s version of the facts was correct. Although clearly the applicant had been aware that the purpose of the marriage was to enable the wife to remain in Australia, it was accepted that had he been aware of her intention to resume her de facto relationship with another man, he would not have married her. His Honour, however, did not find that the circumstances constituted fraud within the meaning of the Marriage Act. The respondent relied heavily on Marriage of Deniz, a case with obviously similar facts, where Frederico J took the view that the separation of the grounds of mistake and fraud in the Marriage Act was sufficient evidence of an intention for the word ‘fraud’ to be attributed with a wider meaning. McCall J did not agree and held that the word ‘fraud’ in s 23B(1) (d)(i) of the Marriage Act does not include the situation where one party has mental reservations [page 107] concerning the future of the marriage. In any event, he felt that this case could be factually distinguished from Marriage of Deniz in that in the present case the wife intended to fulfil the obligations of marriage for a short time even though the ultimate intention was to terminate the marriage.

In Marriage of Hosking (1994) 18 Fam LR 581; (1995) FLC ¶92579, the facts were again similar to those in Marriage of Deniz, the wife deceiving the husband as to her real motivation for going through the ceremony, which was to obtain a more secure

status under Australian immigration laws. Lindenmayer J agreed with the other cases which specifically rejected the approach in Marriage of Deniz, and stated (at 591): [A] distinction must be drawn, in cases where a party alleges a ‘marriage of convenience’, between how such a marriage is viewed by different areas of the law. This court, in hearing nullity applications, is not concerned with how that newly acquired status may be used later. There may be, in appropriate circumstances, numerous consequential advantages … These could be in the arena of taxation, social security, immigration and so on. Likewise, there could be, motivating one or other of the parties, expectations of such consequential advantages, financial or social to be gained by entering into the marriage. Should a court ever be entitled to say that a party’s reasons for marriage are so improper that it will declare their marriage void? The answer, in my view, must be a resounding ‘no’. His Honour further stated (at 592): [T]he term ‘fraud’, as it appears in s 23B(1)(d) … has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage.

There are few examples in the Family Court in which a marriage between adults of full age has been declared a nullity on the basis that one party was induced into marriage by a fraudulent act by the other party. It is particularly so if it based on the reason that allegedly one party entered the

marriage only to gain the benefit of living in Australia. The following is such a case.

In Marquis and Marquis [2012] FamCA 137 the facts suggest considerable optimism on the part of the applicant husband in seeking a decree of nullity on the ground of fraud. The parties were married in Europe in 2000. Shortly thereafter the husband returned to Australia and applied for a visa to allow the wife to join him in Australia. On that occasion his application was dismissed. Nevertheless, the husband persisted with his visa attempts between 2000 and 2005, and in addition he travelled several times to Europe to visit the wife. Eventually the wife was granted a visa and arrived in Australia in 2005. Having lived together in Sydney until 2010, they separated. The husband then sought a decree of nullity on the ground that the wife had allegedly told him that she had only married in an effort [page 108] to get Australian citizenship. In his affidavit material before the court the husband pleaded that the marriage should be declared a nullity on the grounds of fraud and misrepresentation. Rees J referred to s 51 of the FLA (such an application must be based on the ground that the marriage is void) and s 23B of the Marriage Act (grounds on which marriages are void), saying (at [10]–[11]): Misrepresentation is not a ground but I interpret the husband’s application to use the words ‘fraud’ and ‘misrepresentation’ interchangeably. The law in relation to fraud in a nullity context has been the subject of extensive review by Lindenmayer J in his

judgment in Marriage of Hosking (1994) 18 Fam LR 581; (1995) FLC ¶92-579. There his Honour Lindenmayer J after considering the case concluded: The remedy of a decree of nullity is concerned with the marriage itself, that is, the act of becoming married. This occurs when the ceremony of marriage is performed. If there has been fraud as to the other party or as to the nature of that ceremony, or there has been a mistake about it, the consent given by the party so affected is not a real consent and the marriage is void ab initio. [at [44]]

And later: In summary, then, I conclude that the term ‘fraud’, as it appears in s 23B(1)(d)(i) of the Marriage Act, has a fairly limited scope. Its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not as to the motives of a party in entering into the marriage. [at [50]]

Having considered some of the factors which Lindenmayer noted in Hosking, his Honour stated (at [12]): The husband’s application is based on his belief that the marriage was a marriage of love and commitment. If this was not so, and I cannot make any finding to determine that issue, he is understandably distressed, but this does not constitute a ground for the relief he seeks. None of the material upon which he relies suggests that there was any fraud or misrepresentation (to use his word) about the wife’s identity or that he was in any way misled about the nature of the ceremony in which he participated.

See also Kernez and Kernez [2009] FamCA 640; Lute and Ingram [2009] FamCA 503; Vihn and Ngoc [2007] FamCA 181 and, in particular, Campani and Suyapto [2008] FamCA 1121 (below). Mistake

4.25 Section 23B(1)(d)(ii) of the Marriage Act refers to consent of either party to a marriage not being real because of mistake ‘as to the identity of the other party or as to the nature of the ceremony performed’. In both sets of circumstances, the basis for setting aside the marriage is that no true consent existed when the marriage was entered into. Mistakes resulting from a deception as to the other party’s name, background, personal qualities or motivations surrounding the wedding are not regarded as sufficient to invalidate a marriage. It is doubtful if in the legal climate of today the facts in the matter following would render a declaration of nullity. [page 109]

In Marriage of C and D (falsely called C) (1979) 5 Fam LR 636; FLC ¶90-636, mistake of identity was applied under rather sad circumstances. The husband was a true hermaphrodite, that is, a person having some of the physical attributes of both sexes. He underwent corrective surgery and married the wife in 1967. His wife was unaware of the ambiguity of gender suffered by her husband. Bell J held that the marriage was void from mistake as to identity, saying (at 639): … the wife … did in fact believe that she was marrying, a male. She did not in fact marry a male but a combination of both male and female and notwithstanding that the husband exhibited as a male, he was in fact not and the wife was mistaken as to the identity of her husband and the ground … is made out.

In Campani and Suyapto [2008] FamCA 1121 the court found both fraud and mistake as grounds for a decree of nullity. In November 2004 the applicant husband Mr Campani went through a marriage ceremony with the wife whose name he knew as KWT. Around the time of the marriage ceremony the wife had given the husband a birth certificate in which her name was given as KWT. The birth certificate set out the particulars of a person of that name, whose mother was born in Italy and whose father was born in Germany. The wife had been living in Thailand. The husband accepted the wife’s assurances as to her identity. The wife also produced a health care card and a Medicare card in the name of KWT. The husband accepted this evidence as being truthful. The husband produced a marriage certificate to the court where there is an error because the wife’s name is given as KNT. Evidence was given by the husband that he did not become aware of the errors, false name and false details of identity provided by the wife until late May or early June 2005. The wife has subsequently been deported from Australia and remains in Thailand. Having heard the evidence and read the relevant written material placed before the court, Dawe J stated (at [12]): … I am satisfied that the applicant has established that, at the time of the marriage, his consent to that marriage was not a real consent because he was mistaken as to the identity of the respondent at that time. That mistake was brought about by what can only be described as the fraudulent actions of the respondent. Having dealt with mistake for grounds of nullity her Honour turned to a discussion of bigamy as a ground for a decree of nullity. Her Honour stated (at [13]–[14]): I turn also to consider the other ground, which is that

either of the parties was at the time lawfully married to some other person. Attached to the affidavit of the applicant is the exhibit indicating a divorce of the respondent from Mr PJ, which was a divorce that came into effect on 17 April 2006. I accept therefore that at the time of the marriage of the parties in 2004 the respondent wife was, at that time, still lawfully married to Mr PJ and that therefore the marriage is also void on the basis that, at that time, the respondent was lawfully married to Mr PJ. The respondent has not sought to oppose the application and indeed consents to the application. Therefore I have no difficulty in finding that appropriate grounds for a decree of nullity have been made out in accordance with the provisions of section 23B of the Marriage Act.

[page 110] For an extremely comprehensive discussion of fraud and mistake as a basis for nullity, see Aird and Hamilton-Reid [2007] FamCA 4. 4.26 Under the second limb of s 23B(1)(d)(ii) of the Marriage Act, a marriage is void if the consent of either of the parties is not real consent because one party is mistaken as to the nature of the ceremony performed.

In Ford (falsely called Stier) v Stier [1896] P 1, the 17-year-old petitioner went ‘out for a drive’ with her mother, who took her to

a church and insisted she go through a ceremony with a man she had met as a friend of her brothers. She claimed she thought the ceremony was a betrothal, and objected even to that. A decree of nullity was granted on the basis of duress leading to lack of consent, and on the basis that the girl thought the ceremony in the church was only a betrothal.

The following cases also illustrate lack of consent giving rise to invalidity on the basis of mistake as to the nature of the ceremony performed.

In Marriage of Najjarin and Houlayce (1991) 14 Fam LR 889; FLC ¶92-246, the parties went before an Islamic priest and signed the marriage certificate without going through a valid marriage ceremony. Nygh J held (at 889) that the ‘marriage’ was not valid because the woman was mistaken about the nature of the ceremony. She did not expect it to be a marriage ceremony because under Islamic law what took place was not a marriage ceremony.

In Marriage of Mehta [1945] 2 All ER 690, the petitioner underwent a ceremony she believed would convert her to the Hindu faith. She wished to do this in order to facilitate a future marriage to an Indian friend of hers. The ceremony converted the petitioner to the Hindu faith but it also married her to her Indian friend. She did not know of this until afterwards because she did not understand Hindi. The marriage was void because she had not consented to it.

In Rabab and Rashad [2009] FamCA 69 a decree of nullity was granted where it was accepted by the court that both parties believed they were engaged in a ceremony of commitment in accordance with Islamic custom rather than entering into marriage. The wife who was the applicant in this matter also stated that the marriage was not a validly solemnised marriage pursuant to s 48 as it was not performed according to any form of ceremony recognised as sufficient for the purposes of the parties’ religion, Islam. The husband did not appear before the Family Court. At the date of the hearing the wife, aged 27 years, was an Australian citizen living in Australia. The husband was aged 39 years, a Canadian citizen and living in that country. The [page 111] husband was present in Australia for a very limited period. The wife had little or no contact with him before the day of the purported marriage ceremony. The wife stated (at [8]): Prior to the husband coming to Australia I had very limited communication with him. The arrangements with regard to our possible marriage were all made between him and my father, as in our culture it is not acceptable that women speak to men not in their family without the permission from their father or in our case until there is a commitment to marry. In June 2007 the husband travelled to Australia. The first meeting between the husband and wife occurred at that time. Upon the husband’s arrival in Australia the wife’s father sought advice as to how to proceed from Sheikh N, an imam known to the wife’s family. The imam asked for full details of both husband and wife including passport numbers, full details of family name, date of

birth, and in the husband’s case, proof of his divorce from a previous marriage. The court accepted the wife’s evidence that this information was used to complete the Notice of Intention to Marry. Three days after the husband’s arrival the imam came to the wife’s house, with what the wife described as ‘a bundle of papers’ which they were told to sign. In relation to the reasons behind the signing of the documents, the wife stated (at [13]): The Imam came with a bundle of papers which he asked us to sign. At the time neither of us were aware of the fact that this was to be our marriage day. It is our custom to have a formal commitment ceremony and then a marriage and it was my understanding that we were simply signing paperwork in preparation for these two ceremonies. I was told by my father to dress appropriately, which means to put on a headscarf and long black pants and wait to be called. I waited in another room and when I was called, I came in and the Imam handed me a number of papers and I was told to ‘sign here, here and here’. I never addressed the Imam and I never spoke to anybody else in the room, I simply signed as requested. He never spoke to me other than to tell me to sign. Further the documents were not displayed openly, he had a hand full of documents, which he flicked open to the signature section and I just signed. Our culture does not allow me to sit and communicate with men other than family, so when I was invited into the room there was no conversation between me and any of the other parties in the room. After I signed there was a group photograph … I then left the room and the men remained behind and were served tea and biscuits.

The husband left Australia on 18 June 2007. On the evidence of the wife, she had not seen him after that day. There was no consummation of the marriage. Somewhat poignantly the wife produced a report from a Dr B supporting that claim. The wife gave further evidence that on 14 January 2008 the parties agreed via text message communication that they no longer wished to marry. Shortly after that she contacted the imam to tell him that the parties had elected not to proceed to the marriage. It was only then she discovered that the ceremony the parties considered an engagement was a ceremony of marriage which qualified as such under the provisions of the Marriage Act 1961 (Cth).

[page 112] Mental incapacity 4.27 Section 23B(1)(d)(iii) of the Marriage Act states that the marriage will be void for lack of a party’s real consent where ‘that party was incapable of understanding the nature and effect of the marriage ceremony’.

In Durham v Durham (1885) 10 PD 80 at 82, Sir James Hannen P stated: … it appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. … a mere comprehension of the words of the promises exchanged is not sufficient. The mind of one of the parties may be capable of understanding the language used, but may yet be

affected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was not a real appreciation of the engagement apparently entered into.

It is obvious that a mere awareness of going through a marriage ceremony is not sufficient; a person must also understand the nature and effect of the ceremony involved.

In Re Estate of Park; Park v Park [1954] P 112; [1953] 3 WLR 1012; [1953] 2 All ER 1411, a wealthy widower made a will leaving his estate to certain beneficiaries. A year later he married again, and a few hours after the marriage ceremony he executed a fresh will in which he left a legacy to his new wife. He died just 18 days later. Both the second will and the second marriage were subsequently challenged on the ground that the deceased was mentally incapable of understanding what he was doing at the time. The will was declared invalid, but the marriage was not. The deceased was ill both mentally and physically. He was 78 years of age, had previously suffered two strokes, and was senile. In proceedings concerning the validity of the will, the court found that at the time of its execution the deceased was not of sound mind and understanding, and that he did not know and approve of its contents. The will was accordingly declared invalid. Somewhat surprisingly, however, after a detailed review of his habits and mental state of the last year of his life it was decided he was capable of contracting a marriage at the time of the ceremony. The statement of Sir James Hannen P in Durham v Durham was cited with approval (at 123): [I]t appears to me that the contract of marriage is a very simple one, which does not require a high degree of

intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others.

In the matter of Kernez and Kernez [2009] FamCA 640 Cohen J made a declaration of nullity on the basis of lack of capacity but referred to fraud also. The facts of this case are unusual. The person seeking a declaration of nullity was the son of [page 113] Mr Kernez (deceased) on whose behalf the applicant son brought the matter before the Family Court. The respondent was his mother. On the evidence there were two marriages between the senior Mr Kernez and the mother of the applicant. The first marriage took place in Hungary in 1948. The couple migrated to Australia in 1957. They were divorced in Australia with a decree becoming absolute in November 1984. The second marriage occurred in November of 2006 and was registered on 18 December 2006. At the time of the second marriage the respondent mother was in her 70s and the father about 82. The father died in 2008. It was the second marriage which Cohen J was asked to declare a nullity. He did so in effect, in the following terms (at [1]): Pursuant to s 23B of The Marriage Act 1961, as amended, it is hereby declared that the marriage solemnised between Ms Kernez, born in October 1932 in Hungary, and S Kernez, born in August 1923 in Hungary,

in November 2006 and registered on 18 December 2006 is void. For ease of discussion the parties in this matter will be referred to as ‘the applicant son’, ‘the respondent mother’ and ‘the father’. The son was the applicant in this matter, maintaining before the court that his father did not have the capacity to marry in November 2006. The applicant son stated that he commenced the proceedings for two reasons. The first reason related to the manner in which the father’s estate was to be distributed, the second being his wish to put right what he claimed was the violation of his father’s rights by the respondent mother in entering into the second marriage. Cohen J remarked that both reasons were irrelevant except that each gave him sufficient interest to entitle him to maintain the action. The matter came before the court on two occasions. On the first occasion the respondent mother defended the action. The proceedings became part heard while the respondent mother was being cross-examined. None of her witnesses had yet been cross-examined. On the day the hearing resumed, however, her counsel on her behalf sought leave of the court for his client to withdraw entirely from the matter. Evidence was given that as between herself and her two sons (one being the applicant son) all disputes had been resolved with the exception of the application for nullity. Leave was granted for the respondent mother to withdraw. Accordingly, the only matter to be resolved by the court was, whether on the evidence provided to the court, the marriage of November 2006 between the respondent mother and the father was a nullity. Section 23B(1)(d)(iii) of the Marriage Act 1961, as amended, provides that a marriage is void where the consent of either of

the parties to it is not a real consent because that party is mentally incapable of understanding the nature and effect of the marriage ceremony. Therefore the applicant son had to show on the balance of probabilities that when the marriage ceremony and associated formalities were undertaken in November 2006, the deceased did not understand their nature and effect; that is, he did not know he was in the process of marrying the respondent mother and/or could not [page 114] appreciate the implications of doing so because he was so mentally disabled that he was prevented from having the knowledge or ability to appreciate these matters. Considerable evidence of the cognitive ill-health of the father was placed before the court. This included the fact that he became a permanent resident at a nursing home in late 1999. Also he had had a subdural cerebral haemorrhage in January 1999 and a post-surgical extradural haematoma in late January. This evidence was accepted by the court and in addition the evidence of the son that the father lost the ability to write in about 1999. At around the same time he needed to be assisted with toileting. By 2000 he could no longer construct a phrase or sentence and within a short time he had ceased to be able to communicate in any meaningful way in Hungarian, English or other means. From 2002 he could not feed himself and by 2005 did not recognise the applicant, his grandchildren or anyone else, including the respondent mother. A great deal of medical evidence of the advanced dementia of the father was given to the court. Dr K, a specialist physician in geriatrics and gerontology, gave evidence that in 2000 the deceased had been unable to

complete a sentence and would attempt to express an idea without succeeding because he would become distracted. He could not name a pen or telephone or say what they were used for but could name some objects. He did not know the date of his birth, he thought his parents were still alive and living with him along with his grandparents. Dr K found the father to be ‘severely impaired with dysphasia, agnosia, apraxia and confabulation’. She said his behaviour was ‘disturbed’. Dr K reported that she thought it ‘extremely unlikely’ for the deceased to have even had ‘a brief period of lucidity in November 2006’ as his dementia would have been too advanced. She said that by 2000 he was already ‘incompetent to make any legal or lifestyle decisions’ and that he did not have ‘the judgment, insight or capacity to make a decision to marry’ or the ‘ability to comprehend the nature, significance and long-term consequence of the decision to marry’. She found it difficult ‘to conceive how he would have been even a passive participant in a proper marriage ceremony’. Equally strong evidence in support of the applicant son’s case was given by Dr F. The applicant son first learnt of the marriage ceremony which had taken place between the father and respondent mother at Easter 2007. His Honour found the evidence to be heavily in favour of a finding that the father was mentally incapable of understanding the nature and effect of the marriage ceremony. His Honour also referred to the possibility of fraud in relation to the supposed consent of the father. He was critical of the marriage celebrant performing the ceremony when, his Honour said, he must have known that the father had no ability or capacity to give his consent. As a consequence, his Honour ordered that a copy of his judgment be given to the Registrar of Marriage Celebrants.

See also Babich and Sokur [2007] FamCA 236.

4.28 The cause of the mental incapacity that will invalidate a marriage is not specified. There would appear to be no good reason to restrict this incapacity to natural causes. Thus, mental incapacity due to alcohol or drugs comes within the scope of s 23B(1)(d)(iii) of the Marriage Act. [page 115]

Lack of marriageable age 4.29 Where either of the parties to a ceremony of marriage is not of marriageable age, the purported marriage is void: ss 23(1)(e) and 23B(1)(e) of the Marriage Act. Section 11 of the Act sets out the general requirements in this respect. As was discussed in Chapter 3, since 1991, it has been necessary for each party to be over 18 years of age. It is possible, however, for a person who is within two years of marriageable age, that is, who is at least 16 years of age, to apply to a judge or magistrate for an order authorising him or her to marry a particular person of marriageable age. If the court is satisfied that the circumstances are ‘so exceptional and unusual as to justify the making of the order’, the court has a discretion to make an order authorising the marriage. It would prima facie appear from the wording of s 12(2)(b), which requires that before an order can be made authorising a marriage of a person under the normal marriageable age the circumstances of the case be ‘exceptional and unusual’, that it was the intention of the legislature that such orders be made only in extraordinary circumstances.

Pregnancy, of itself, may not be circumstances ‘exceptional and unusual’.

In Ex parte Willis (1997) 21 Fam LR 479; FLC ¶92-725, the applicant applied to a magistrate for leave to marry. She was pregnant and not yet of marriageable age, being 17 years and nine months old. Her fiancé was aged 22 years. In support of her application, she gave evidence as to her maturity and the support of both families of the marriage. The magistrate rejected the application on the ground that the circumstances in total were not so exceptional and unusual to justify the exercise of his discretion by granting leave. The applicant sought to have the magistrate’s decision quashed. The magistrate granted an application for certiorari. The evidence was such that the magistrate could have properly held that the facts in this case were sufficient to satisfy him that the circumstances were so exceptional and unusual as to justify the exercise of discretion in favour of the applicant. In reaching his decision, White J considered reported decisions in relation to s 12 of the Marriage Act, stating (at 482): The researches of counsel have turned up certain reported decisions in relation to s 12 of the Act. These include Re K [1964] NSWR 2004; Re H (an infant) [1964– 5] NSWR 2004; Re Z (1970) 15 FLR 420 and K v Cullen (1994) 36 ALD 37; 126 ALR 38; 18 Fam LR 636. In each case, the applicant was pregnant and it was found that that fact, in itself, was insufficient to justify an order pursuant to s 12 of the Act. In each case, however, the court took into account all the relevant facts and circumstances, as it was obliged to do in terms of s 12(2) of the Act.

In Re Z (1970) 15 FLR 420 Joske J, in his careful judgment, considered the meaning of the words ‘exceptional and unusual’ and concluded that they have much the [page 116] same meaning and should be equated to ‘out of the ordinary’. Moore J, in K v Cullen (1994) 36 ALD 37, accepted Joske J’s construction of the phrase ‘exceptional and unusual’; however, he found a difference of view in relation to the word ‘so’ which precedes the word ‘exceptional’ in the Act. This difference is material in the present case. In Re Z, Joske J concluded (at 421–2) that: … the legislation enables the judge to exercise his discretion in a case which appears to him to be out of the ordinary and that, in considering this question, it is proper to bear in mind that the object of giving the judge a discretion is to protect the institution of marriage so that it does not fall into disrepute and also to protect the particular parties who are seeking to marry, since the marriage of such young people is often subject to substantial pressures and frequently breaks down almost immediately or very soon after it takes place owing to these pressures. His Honour went on to say (at 422): Experience does show, however, that nevertheless, marriages of such young people have frequently … taken place and been successful where they are suited to one another and conditions are suitable for them to marry. The Act does not impose an absolute prohibition on the marriage of a young man between the ages of

sixteen and eighteen and if a judge is able to conclude on the evidence before him … that the marriage is likely to be a successful, happy marriage, in my opinion he is able to say that this is ‘out of the ordinary’, and that it is ‘exceptional and unusual’, since so many marriages of people of the young age referred to in s 12 have been absolute failures and doomed to failure from the start. The fact that a child about to be born will be able to live with both its parents in a good home is also important. His Honour pointed out (at 422) that each case must be considered on its merits and that: … it cannot be laid down that any particular fact for example pregnancy in the case of the girl is essential to be proved before an application can succeed. Were this otherwise, it would be an invitation to the parties to see that the girl became pregnant. His Honour added (at 423): While pregnancy of a girl not of marriageable age may not in itself be exceptional or unusual, it may be taken into consideration together with the consent of the parents, the capacity and employment of the husband to be, the maturity of both man and girl, the suitability and compatibility of the couple and other relevant circumstances. If the conclusion reached is that the circumstances are not such as probably to promote a sense of outrage or give offence or invoke substantial opposition in the way that I have mentioned then it would be open to find them so exceptional as to justify the grant of permission to marry.

In Re Application by P and P [1973] VR 533 at 541, Crockett J

outlined the appropriate tests to be applied in considering whether the circumstances are so exceptional or unusual as to justify the making of an order and said: However, I apprehend that in order to determine the initial question of fact as to whether the circumstances are so exceptional as to justify the grant of the permission [page 117] sought, the consideration of factors of the kind to which I have referred should be undertaken in order to judge whether the circumstances associated with any one or more of them are such as are likely to arouse in a substantial number of those with knowledge of the marriage, were it to take place, feelings of indignation or revulsion or abhorrence. No doubt emotional reactions or the likelihood of them cannot, ex hypothesis, be measured by reference to rational concepts but the judgment to be made will be more meaningful if made both by reference to what are believed to be relevant current community standards and beliefs and with some knowledge of the historical background of the prohibition.

Divorce 4.30 Although the term ‘divorce’ is commonly heard in the wider community, it was not used in the FLA until 2005. Instead of the term ‘divorce’, the Act used the expression ‘dissolution of marriage’. This was seen as a precise

statement of the effect of the related matrimonial relief, namely, the ending of an existing marriage. A proceeding for divorce is an application for principal relief which falls within the definition of ‘matrimonial cause’ in s 4(1) of the FLA: ‘proceedings between the parties to a marriage, or by the parties to a marriage, for … a divorce order in relation to the marriage’. 4.31 In accordance with s 8 of the FLA, proceedings by way of the ‘matrimonial cause’ may only be instituted under the Act. Jurisdiction to hear and determine applications for divorce is conferred on the following courts: the Federal Circuit Court; the Family Court of Western Australia; and the Supreme Court of the Northern Territory. Eligibility to commence proceedings for a divorce is dependent on the applicant being a party to the marriage, and on the fulfilment of certain citizenship, domiciliary or residential requirements by either party. The requirement that only a party to a marriage may commence proceedings for a divorce order follows from the relevant paragraph of the definition of ‘matrimonial cause’ that the proceedings must be ‘between … or by the parties to a marriage’. It is not in the nature of a court to surrender jurisdiction which is rightly within its power. The Family Court of Australia is no exception. There are a number of recent cases that discuss the issue of ‘forum non conveniens’ and the following case is one of them.

Gatto and Norton [2012] FMCAfam 1175 relates to a Hindu marriage that took place in India in 2007 and a subsequent application by the husband for a divorce order in Australia. The husband, an Australian citizen, was domiciled in Australia. The wife was a permanent resident of Australia but held Indian nationality. The application [page 118] was defended by the wife on the basis that the Australian Court was a forum non conveniens within the meaning of the test laid down by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558. The wife argued that as the place of the marriage was India, the appropriate forum for seeking a divorce was also India. The wife sought one of two remedies: either a dismissal of the husband’s application, or alternatively a stay of the application until the parties had recourse to the relevant Indian court for the making of a divorce application. The parties did, however, agree that they had been separated for not less than 12 months immediately preceding the date of the filing of the application by the husband. Counsel for the husband argued the court has jurisdiction pursuant to s 39 of the FLA and that the grounds of an irretrievable breakdown of marriage could be proved pursuant to s 48(1). Scarlett FM stated (at [65]–[67]): … the facts of this case are that the parties have chosen to live permanently in Australia and the husband has chosen to become a citizen of this country. It does not follow, despite the submission on behalf of the wife, that because the parties were married in India under the provisions of the Special Marriage Act [1954 (India)], that the only way that the marriage should be dissolved is by

a court in India under that same Act. The parties have chosen to live in Australia and have chosen to submit to the jurisdiction of this court in respect of their property and parenting proceedings. No evidence has been presented to show that either party would be in jeopardy of a prosecution for bigamy if he or she were to remarry in Australia under Australian law. What jurisdiction would an Indian court have if the husband, an Australian citizen, were to marry in Australia? If the wife were to be divorced under Australian law and remarry in Australia, would an Indian court have any jurisdiction in respect of a charge of bigamy? The likelihood of such a prosecution being brought would seem to be remote, at best. The wife has not established that this court is a clearly inappropriate forum. This court has jurisdiction and should proceed to exercise it.

The following gives a brief synopsis of a very lengthy case, which read as a whole provides a valuable historical discussion of many cases in which the principle of forum non conveniens is pleaded.

In Price and Price [2013] FCCA 1372 both the husband and wife were Indian nationals domiciled in Australia. The parties were married in India according to the provisions of the Hindu Marriage Act [1955 (India)]. The husband sought a divorce in Australia, giving evidence of irretrievable breakdown supported by 12 months separation. A divorce order was granted despite assertions by the wife that the hearing of the matter in an Australian court raised questions of the principle of forum non

conveniens. The wife claimed that she had already initiated proceedings in India and in view of all the circumstances the Indian court was the appropriate forum for the hearing of disputes between the parties. Evidence was given that the proceedings on foot in India concerned an application by the wife for restitution [page 119] of conjugal rights. In effect the wife was asking the Indian court to make an order forcing the husband to resume the matrimonial relationship and therefore the exact opposite of the husband’s application before the Australian court (at [13]). Such a remedy is neither available nor enforceable in Australia. The wife sought a stay of the Australian proceedings until the outcome of the litigation in the Indian court was known. In refusing a stay of proceedings, Whelan J stated (at [46]): It is for the Wife to satisfy the court that this court is clearly the inappropriate forum for the proceedings and I am not satisfied that in all the circumstances of the case, ‘taking into account the true nature and full extent of the issues involved’ [citing Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 593], that this court is clearly the inappropriate forum and that a stay of proceedings should be granted.

Russell and Russell (No 5) [2012] FamCA 917 was a matter in which the question arose as to whether the Family Court of Australia was the appropriate court to hear a divorce application by the husband. The parties had married in India in 2007, before relocating to Australia in January 2010. A child was born in

Australia and then the parties separated in August 2010. There were a number of matters before the court in relation to these parties. The wife opposed the granting of a divorce order on the basis that the husband had returned to India and she intended to return within a short time. In opposing the granting of a divorce order, the wife submitted that neither were ordinarily resident in Australia; proper arrangements for the care, welfare and development of the child had not been made; that the Family Court of Australia was an inappropriate forum; that the husband’s application was vexatious, oppressive or an abuse of process; and the husband had permanently left Australia and the wife was soon to do so herself, therefore, there would be no party to the marriage living in Australia (at [10]). The wife alleged there were criminal proceedings on foot in the Supreme Court of India in respect of a breach by the husband of the Dowry Prohibition Act 1961 (India) (at [23]), claiming the husband and his family illegally claimed a dowry of $300,000. The husband denied the allegation. Young J (at [97]) dismissed the husband’s application for a divorce, stating: I conclude therefore, to the extent required … that the wife has discharged the onus of proof upon her. I do not find that Australia is the appropriate jurisdiction to grant the divorce.

The provisions of s 48 4.32 The principal section of the FLA concerning divorce is s 48(1), which states that an application for divorce can only be based on the ground that the marriage has broken down

irretrievably. Section 48(2) then provides that this ground is established only if the parties have separated for a continuous period of not less than 12 months immediately preceding the date of the filing of the [page 120] application for divorce. Section 48(3), however, states that an order for divorce cannot be made if the court is satisfied that there is a reasonable likelihood of reconciliation and cohabitation being resumed. Thus there is just one ground for the granting of a divorce order in Australia: the irretrievable breakdown of marriage as evidenced by 12 months’ separation between the parties to the marriage. A divorce order is a non-discretionary form of relief. This is clear from the terms of s 48(2), which states that a divorce order ‘shall be made’ if the parties have separated for 12 months immediately preceding the date of the filing of the application. ‘Separation’ 4.33 An explanation of the meaning of ‘separation’ in the FLA can be derived from the case law. It is now well established that for the purposes of s 48(2) and Pt VI of the FLA ‘separation’ does not necessarily mean physical separation: it means simply the effect of breakdown of the matrimonial relationship. Accordingly, physical separation is neither necessary nor sufficient to establish ‘separation’ within the meaning of s 48. It is not necessary because s

49(2) contemplates the possibility that the parties may be ‘separated’ while still living under the same roof.

In Marriage of Falk (1977) 3 Fam LR 11,238 at 11,243; FLC ¶90247 (drawing on earlier authorities), the Full Court stated: Clearly there is no difficulty about accepting a view that the parties have ‘separated’ notwithstanding that there has been no physical departure by either of them from the premises that they have previously jointly occupied. It is accepted that separation really means a departure from a state of things rather than from a particular place.

4.34 Neither is physical separation by itself sufficient to establish ‘separation’ under the Act, because the authorities establish that ‘separation’ involves the breakdown of the marital relationship.

Campbell and Cade [2012] FMCAfam 508 is an excellent example of the manner in which the court considers the various elements of proof that a marriage is at an end in accordance with the requirements necessary for the granting of a divorce order. In this matter the question to be decided was whether the parties were separated as a matter of fact for at least 12 months prior to the hearing for a divorce order. Unless it can be shown that the parties have been separated for at least 12 months, the court has no power to grant a divorce (at [20]). It was the husband’s evidence that he explicitly informed the wife that he sought a divorce when he moved out of the former matrimonial home on 25 July 2009. This was denied by the wife.

The husband claimed that the parties separated in July 2009 when he moved out of the matrimonial home. He applied for a divorce in December 2011. In evidence, [page 121] the wife disputed that the parties had separated, claiming that the marriage was intact, but conceded the date of the departure of the husband from the matrimonial home. The wife asserted that despite the husband’s departure in every other respect the marriage continued as before. She placed particular emphasis on the frequent acts of sexual intercourse which took place between the parties. On the evidence of the wife this occurred at least until 13 November 2011. The wife further deposed, but denied by the husband, that he did not raise the question of divorce until September 2011 (at [36]). Nevertheless, in March 2012 the wife instructed a firm of solicitors to act for her in a matrimonial property settlement in the Family Court. The husband conceded that the parties had continued to have a sexual relationship since separation, such activities taking place mainly in places away from the former matrimonial home (at [15]). In addition, the husband agreed that he and the wife had continued to attend social events, such as lunches, dinners and karaoke. He also conceded that the parties had operated a joint bank account, but said that had only been used to transfer funds for ‘child maintenance’ and had since been closed (at [16]). Throughout the judgment Scarlett FM reviewed older cases and referred to the importance of establishing a separation of at least 12 months under s 48 of the FLA and to the Act’s definition of ‘separation’ in s 49. His Honour stated that it is incumbent on the applicant to prove that the parties have separated and lived separately and apart for a period of 12 months immediately preceding the date of the

filing of the application for the divorce order (s 48(2)). Where the parties were not separated for 12 months the matter cannot be cured by an adjournment. The court looked at the date the application was filed: 2 December 2011. This would mean the parties had to have lived separately and apart for a continuous period from at least 1 December 2010. It was held the husband had moved out of the former matrimonial home on 25 July 2009 but the parties had regular sexual relations at least until 13 November 2011 and they held themselves out to the world as a couple by attending various social functions together, again, at least until 13 November 2011. The parties operated a joint bank account, mainly for the purpose of providing child support or child maintenance for their youngest daughter, until 22 March 2012. At this time it was clear that the wife intended to end the marital relationship, as she instructed her lawyer to commence property proceedings. It is the applicant’s responsibility to establish the date of separation and it was held that in all the circumstances, the husband failed to show that the parties lived separately and apart for the requisite period of 12 months and the application for divorce was dismissed.

In Marriage of Clarke (1986) 11 Fam LR 364 at 370; FLC ¶91-778 Lindenmayer J said: [A severance of the marital relationship] involves both a physical element (that is a physical separation) and a mental element (that is an intention on the part of at least one of the parties to terminate the marital relationship).

[page 122] The following case illustrates an awareness by the Family Court of the variations that may be found in the precise circumstances of an individual marriage.

The classic and most often cited statement of the meaning of ‘separation’ as a ground for dissolution is to be found in the decision of Watson J in Marriage of Todd (No 2) (1976) 1 Fam LR 11,186 at 11,188; FLC ¶90-008 where his Honour stated: In my view ‘separation’ means more than physical separation — it involves [the breakdown] 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 [and the nurture and support of the children of the marriage].

His Honour’s statement has been approved by the Full Court (with qualifications): Marriage of Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051; and in later cases: Marriage of Falk

(1977) 3 Fam LR 11,238; FLC ¶90-247 and Marriage of Clarke (1986) 11 Fam LR 364; FLC ¶91-778. Establishing separation — general approach of the court 4.35 Whether the parties have separated and lived separately and apart for a continuous period of 12 months is a question of fact. The cases, however, indicate the factors that courts are likely to take into account. For example, when determining whether there has been a separation the court generally draws on two notions. The first is that a marital relationship is characterised by various components and, when all or most of these are missing, the marital relationship does not exist. The second is that every marriage is different, and the crucial question is whether the relationship before the alleged separation was so different from the relationship following it that a separation can be said to have occurred. The courts are, however, conscious of the fact that the elements of any matrimonial relationship can vary from marriage to marriage.

In Marriage of Pavey (1976) 1 Fam LR 11,358 at 11,362; FLC ¶90-051, the Full Court stated: We also agree with the statement in Todd’s case that ‘what comprises the marital relationship for each couple will vary’ … 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.

[page 123]

Further, the elements of any matrimonial relationship can vary with the passage of time. In Marriage of G (1978) 4 Fam LR 537 at 540; FLC ¶90-498, Toohey J stated: Those elements [ie, of cohabitation] are not fixed and immutable. Time may serve to make some eg companionship, more important, and others eg sexual activity, less so.

4.36 In looking for the changes necessary to constitute a breakdown of the marital relationship, the Family Court has applied the ‘before and after’ test. The application of a ‘before and after’ test may assist the court in determining whether and when a separation has occurred.

In Marriage of Todd (No 2) (1976) 1 Fam LR 11,186 at 11,188; FLC ¶90-008, Watson J stated: 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.

This statement by his Honour was approved by the Full Court in Marriage of Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051.

In Price and Underwood (2008) 39 Fam LR 614 an application was made by the wife to the Full Court of the Family Court seeking to set aside a divorce order made by a Federal Magistrate. The application was made by the wife on the assertion that at the time of filing the divorce application the parties’ marriage had not broken down irretrievably. The Full Court heard the application by the wife as a matter of urgency as the husband was suffering from a terminal illness. One of the questions to be answered by the court was whether on 12 December 2007, when the husband filed a divorce application citing October 2005 as the date of separation, that date was correct. On 11 January 2008 the wife filed a response to the husband’s application for divorce. She submitted that the divorce application should be dismissed because the husband had filed the application prior to the expiry of the 12 months separation required by s 48(2) of the FLA. In evidence the wife stated that separation had not begun until 3 April 2007 at the earliest, when the husband told her that he wanted a divorce. The Federal Magistrate accepted the evidence of the husband that separation had occurred in 2005 and made a divorce order. The wife appealed that decision to the Full Court of the Family Court. In her evidence the wife established to the satisfaction of the court that although the parties lived in separate houses, all other aspects of the matrimonial relationship continued as she asserted. The Full Court also agreed with the wife’s evidence

that the husband did not communicate his intention to seek a divorce until 3 April 2007. See also Miller and Miller [2009] FMCAfam 302.

[page 124]

Requirements for a divorce order The necessity for communication 4.37 The cases indicate that in normal circumstances ‘separation’ for the purposes of s 48(2) of the FLA involves three elements: 1.

an intention to separate (that is, to break the matrimonial relationship or consortium vitae);

2.

action upon that intention; and

3.

communication of that intention to the other party.

It will normally be obvious to both parties when a separation has taken place, and in some cases one party will make it clear to the other by words or actions that he or she is intending to bring about the termination of the marriage. Sometimes, however, the question arises whether the parties can be considered to have separated when one party believes that the marriage is still on foot and the other has not communicated to the contrary.

The need for communication was made clear by the Full Court of the Family Court in Marriage of Falk (1977) 3 Fam LR 11,238; FLC ¶90-247. There the Full Court said (at Fam LR 11,244): The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation. Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude. See also Marriage of Jennings (1997) 22 Fam LR 510; FLC ¶92773.

A different and somewhat controversial decision on the question of the necessity for communication was reached in Marriage of Tye (1976) 1 Fam LR 11,235; FLC ¶90-028. In that case, the husband left Australia on 1 January 1975 to take up employment in Singapore, promising his wife he would send for her as soon as the necessary arrangements had been made. In fact, the job was for a single person only, and the court found that virtually from the time the husband left for Singapore he had no intention of ever living with his wife again. He subsequently communicated his intention to his wife late in February 1975. The wife filed an application for dissolution of marriage on 29 January 1976. This, of course, was more than 12 months after the husband had formed his intention to separate

but less than 12 months after he had communicated this intention. A decree of dissolution of marriage, nevertheless, was granted. [page 125] Emery J stated (at 11,237): In my opinion the ground for dissolution is made out, namely that the marriage between the parties has broken down irretrievably, which ground is established by the fact that they have been separated for the necessary period of 12 months prior to the filing of the application for dissolution.

Almost certainly, the decision in Tye is best regarded as an isolated case in which the court adopted a generous interpretation of the rules of s 48. Perhaps the decision in the case may be confined to its particular facts where physical separation was so obvious.

In this regard it is interesting to consider the case of Marriage of Lane (1976) 1 Fam LR 11,385; FLC ¶90-055, where an application for dissolution of marriage was dismissed as the court found that the applicant husband ‘did not take the ultimate step of severance [of the matrimonial relationship] either through unequivocal conduct towards or direct communication with his wife carrying into effect his intention to separate’. In that case, the husband, a medical practitioner, intended to separate from his wife and over a period of time he gradually withdrew from the marriage. He continued, however, to live in the same house as

his wife, though he slept in a separate bedroom. The wife did not appreciate that her husband regarded the marriage at an end although she shared in the unhappiness of the situation. The husband’s application for dissolution of marriage was dismissed, not only because he had not completely withdrawn from cohabitation with his wife for a full 12 months but also because he had not communicated his intention to break the consortium vitae. Murray J stated (at 11,389): Doctor Lane presents as a kindly man who, although he had made up his mind, at least by 1974, that his marriage was finished and that he wanted to cut himself off from his wife, could not bring himself to cut the umbilical cord grown out of nearly 30 years of married life. He flourished the scissors and scraped at the tissues, but did not take the ultimate step of severance either through unequivocal conduct towards or direct communication with his wife carrying into effect his intention to separate … The test of whether there has been effective communication of an intention to separate is almost certainly objective. In other words, unequivocal conduct is sufficient notwithstanding any delusions on the part of the other spouse. On the facts, however, Dr Lane did not engage in the requisite unequivocal conduct nor directly communicate with his wife and thus his application was dismissed.

Separation under the one roof 4.38 Separation may occur notwithstanding the fact that the parties have continued to live in the same home.

[page 126]

Adopting a similar position to that taken by courts under the Matrimonial Causes Act 1959 (Cth) (now repealed), the Full Court per Evatt CJ, Fogarty and Bulley JJ in Marriage of Falk (1977) 3 Fam LR 11,238 at 11,243; FLC ¶90-247 stated: Clearly there is no difficulty about accepting a view that parties have ‘separated’ notwithstanding that there has been no physical departure by either of them from the premises that they have previously jointly occupied once it is accepted that separation really means a departure from a state of things rather than from a particular place.

The approach taken in the Matrimonial Causes Act is reflected in s 49(2) of the FLA which states: ‘The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.’ 4.39 Parties who continue to share premises during some part of the alleged period of separation must provide the court with an explanation of the nature of the separation.

The reason for this requirement was made clear by the Full Court in Marriage of Pavey (1976) 1 Fam LR 11,358 at 11,364; FLC ¶90-051: In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the

marriage has broken down, for the common residence suggests continuing cohabitation … The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.

4.40 The extent to which spouses can reside together in the same residence, perform services for one another, and yet nonetheless be found to have separated for the purposes of s 48(2), is well illustrated by two cases decided in 1977.

These are Marriage of Hodges (1977) 2 Fam LR 11,524; FLC ¶90-203 and Marriage of Falk (1977) 3 Fam LR 11,238; FLC ¶90247. In both cases the wife prepared meals for the husband, and both the husband and wife occasionally ate together with the rest of the family. Moreover, in both cases the wife did the husband’s laundry and looked after the house generally, and the husband gave the wife housekeeping money. The spouses slept, however, in different bedrooms, did not have sexual intercourse, and no longer socialised together. They also conversed together to a substantially lesser extent than previously. In both cases the parties were found to have separated for the purposes of s 48(2) and their marriage was dissolved.

[page 127]

4.41 There is no formal, minimal extent to which parties may live together and yet still have separated. This is a matter of fact and degree in every case, but it is clear from the cases that ‘separation’ does not involve the breakdown of every element of the former matrimonial relationship. A substantial breakdown is all that is required for the purposes of s 48(2). Accordingly, parties may have separated even though residual elements of their former relationship still exist. In cases of separation under the one roof, a pivotal piece of evidence is often the sleeping arrangements of the parties and whether or not sexual intercourse takes place. Although there is no firm rule, as a matter of practice courts normally expect spouses to sleep in separate rooms if they claim to be separated and refrain from sexual intercourse.

In the pre-FLA case Marriage of Watkins (1952) 86 CLR 161, the parties were found to have separated even though they slept in the same room, though in different beds. In that case the wife also cooked and washed for her husband. The husband, however, refused to communicate with his wife except to say an occasional ‘yes’ or ‘no’. The outcome was different in Marriage of Caretti (1977) 3 Fam LR 11,374; FLC ¶90-270, in which an application for dissolution of marriage did not succeed, principally because the parties continued to sleep in the same bed, albeit (the husband claimed) back to back. Murray J stated (at 11,378): [A] man who maintains that he is living separately and apart from his wife but nevertheless returns to her in the nuptial bed, does so at his own risk.

Must separation be apparent to an outside observer? 4.42 The question of how apparent separation must be to the outside observer is still uncertain. Cases dealing with this aspect are inconclusive. There are just two post-1975 cases on this particular point, each of which reaches a different conclusion.

In Marriage of Fenech (1976) 1 Fam LR 11,250; FLC ¶90-035, the parties lived in a strained relationship under the same roof, but their separation was not apparent to outsiders. Evatt CJ expressed the view that this was not sufficient (at 11,250–1): Marriage comes in many shapes and sizes and many families are living in a strained relationship like this. To the outside observer, matters go on much as usual, and only within the family itself — between the husband and wife — is there any acknowledgment of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households, not one; it is not established in this case. Her Honour granted an adjournment in this matter. It is possible that this was to enable further evidence of separation to be placed before the court (at 11,251).

Several Family Court judges have suggested that the evidence must show that the parties are virtually living in ‘two households, not one’, with the implication that there should be minimal or no contact between the spouses. [page 128]

In Marriage of Wiggins (1976) 1 Fam LR 11,101 at 11,102; FLC ¶90-004, Watson J appears to have adopted this test, stating: In layman’s terms, the test that has to be applied is whether or not the parties have in fact established separate households, albeit the same roof covers both.

4.43 The factual situations and reasoning in such Full Court decisions as Marriage of Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051 and Marriage of Falk (1977) 3 Fam LR 11,238; FLC ¶90-247, as well as the specific wording of s 49(2) of the FLA (‘notwithstanding … that either party has rendered some household service to the other’), suggest that the ‘two households’ test is not an appropriate one in cases arising under the FLA.

This is certainly the conclusion reached in Marriage of McLeod (1976) 1 Fam LR 11,280; FLC ¶90-043, which concerned parties whose matrimonial relationship had broken down but who had deliberately kept up the appearance that they were still married. This was in order to protect their social status in the town where they were living. Quite substantial household services had been rendered by the wife to the husband, but each party occupied separate bedrooms and avoided the other’s company as much as possible. Wood J found that the parties had separated for the purposes of the FLA and dissolved their marriage. His Honour stated (at 11,281): There was benefit to both the parties in an arrangement whereby, to outsiders and to the community in which they are both socially pre-eminent, it should appear that their marriage was stable. In fact, they lived separate

lives when at home in that there was the minimum of contact and civility between them.

4.44 It is difficult to reconcile the divergence of judicial opinion shown in Marriage of McLeod and Marriage of Fenech. The matter may be considered from both a legal and a public policy position. From a legal viewpoint, it is now well established that all that s 48(2) requires is the effective breakdown of the matrimonial relationship for a period of 12 months. On this basis, it should not be a matter of legal consequence whether or not it would appear to the rest of the world that the relationship was partly or fully intact. Conversely, it may be argued that it would be contrary to public policy to allow parties to obtain a divorce order after a separation which did not appear, at least from an outside perspective, to have occurred at all. For this reason, the requirement that separation be overt as in Marriage of Fenech may be more consistent with the direction in s 43(a) of the FLA that a court exercising jurisdiction under the Act have regard to the need to protect the institution of marriage. Without evidence of overt separation, the temptation to fabricate evidence of separation by dishonest spouses who wish to secure a quick dissolution of their marriage is more likely. Certainly, in a case where overt separation is obvious, the evidentiary burden is lighter. [page 129] Cohabitation under one roof

4.45 The situation is not quite so clear cut when, for whatever reason, the husband and wife continue to occupy the same dwelling. In these circumstances, clear evidence of the breakdown of the marriage must be established to satisfy the statutory requirements.

This evidentiary burden was discussed in Marriage of Pavey (1976) 1 Fam LR 11,358 at 11,364; FLC ¶90-051 as follows: In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases, therefore, require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation. For this reason many of the judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant’s evidence in cases where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence. Whether the judge will require such evidence will depend on the circumstances of each case.

4.46 In such circumstances, the standard of proof required is the civil standard. Proof is meant as an objective measure

for determining whether or not a fact or issue has been proved on the balance of probabilities. The fact is proved to be true on the balance of probabilities if its existence is more probable than not. An example of corroboration as required by the Family Court would be evidence of other family members about the circumstances and the relationship between the parties during the relevant period.

Resumption of cohabitation 4.47 In the context of marriage, ‘cohabitation’ means living together as husband and wife. Just as separation involves the effective breakdown of the former matrimonial relationship, a resumption of cohabitation involves its effective reestablishment. Because a resumption of cohabitation involves the effective re-establishment of a matrimonial relationship between spouses, it is clear that it cannot occur by the unilateral act of just one party; the cooperation of both parties is required. The onus, however, of establishing the likelihood of resumed cohabitation is upon the party who asserts it. Prima facie, any resumption of cohabitation within the period of 12 months immediately preceding the filing of an application for a divorce order annuls the prior period of separation, and thus it also annuls any entitlement to a divorce order. This is because s 48(2) states that a divorce order can be granted only if 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’.

[page 130] 4.48 The FLA does, however, enable separated spouses to resume cohabitation for one period of up to three months without this annulling any prior period of separation for the purpose of satisfying the conditions of s 48(2). Section 50(1) provides that if the parties have resumed cohabitation on one occasion but, within a period of three months after the resumption of cohabitation, they again separate, then the periods of separation before and after that short resumption of cohabitation may be aggregated to add up to 12 months. 4.49 The object of this section is clearly to encourage a trial period of reconciliation between separated spouses, who might otherwise be hesitant to resume cohabitation if this would nullify the prior period of separation in the event that the attempted reconciliation proves unsuccessful.

In Marriage of Clarke (1986) 11 Fam LR 364 at 365; FLC ¶91778, Fogarty and Nygh JJ stated: The clear intention of s 50(1) is to encourage parties to reconcile and without prejudicing their right to relief should the reconciliation fail within 3 months.

4.50 The reason for any resumption of cohabitation is irrelevant so far as s 50 of the FLA is concerned. Separated spouses may accordingly resume cohabitation simply to gain any economic or social benefits of living together, without any thought of a ‘romantic’ reconciliation, and still avail

themselves of the benefit of the section. The parties must, however, meet the following four conditions: 1. Initial separation must have taken place between the parties. 2.

Cohabitation between the parties must then have been resumed on not more than one occasion.

3.

Separation must once again have occurred within a period of three months after the resumption.

4.

Between the end of the period of resumed cohabitation and the date of the filing of the application a further period of separation must occur.

As we have already seen, ‘separation’ is ultimately a matter of fact and degree. This relationship need not be precisely the same as that which existed between the parties prior to separation. It must, however, be recognisable as a matrimonial relationship.

In Marriage of Clarke (1986) 11 Fam LR 364 at 370–1; FLC ¶91778, Lindenmayer J stated: If used only in the latter sense [ie, of a settling of differences or a return to friendly relations], then in my view such a reconciliation does not bring their existing separation to an end because … only a resumption of cohabitation (involving both the intention to resume and acts to give effect to that intention) can have that effect.

[page 131]

A resumption of cohabitation is thus basically the reverse of separation. Accordingly, once separation is established the parties remain separated until cohabitation is resumed by both intention and actions. The necessary duality of intention and action may be recognised in the following case.

In Marriage of Todd (No 2) (1976) 1 Fam LR 11,186 at 11,188; FLC ¶90-008, Watson J stated: Just as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation.

Resumption of cohabitation after filing an application for the granting of a divorce order 4.51 The question of the effect of resumption of cohabitation after filing an application for a divorce order led to some uncertainty after the commencement of the FLA. One argument was that as there is no saving provision for a resumption of cohabitation in such circumstances, as there is in s 50 in respect of a resumption of cohabitation before filing the application, any resumption of cohabitation after the filing of an application for a divorce order completely destroys the ground of divorce, with the result that the parties have to separate for a further 12 months before they become entitled to a divorce order. This was the finding of McGovern J in Marriage of Feltus (1977) 2 Fam LR 11,665; FLC ¶90-212.

The opposite conclusion, however, was reached in another case heard in the same year. In Marriage of Thompson (1977) 2 Fam LR 11,649 at 11,651; FLC ¶90-206 per Watson J, the parties resumed living together for about seven weeks following the husband’s application for divorce. It was a last attempt to try to save the marriage. This attempted reconciliation after filing an application was not, however, an impediment to the ground of a dissolution. It was only relevant to the question of whether a resumption of cohabitation was likely under s 48(3). Watson J was of the opinion that in the circumstances it was clear that the marriage was over, and consequently a dissolution was granted. Accordingly, where the resumption of cohabitation occurs after the application for divorce has been filed, the separation period is unaffected.

Likelihood of a resumption of cohabitation 4.52 Once the ground of divorce under s 48(2) of the FLA has been established, there is only one circumstance that prevents a divorce order being made. This is a reasonable likelihood of cohabitation being resumed at some time in the future. Section 48(3) of the FLA states: A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

[page 132] Whether there is a reasonable likelihood of a resumption of

cohabitation depends on the facts and circumstances of the case.

In Marriage of Todd (No 2) (1976) 1 Fam LR 11,186 at 11,188; FLC ¶90-008, Watson J stated: The onus of establishing such likelihood is on the spouse who asserts it. More than the likely resumption of some elements of the marital relationship must be shown — resumption of cohabitation must be shown to be likely — that is bilateral intention on the part of both spouses to resume living together.

In Marriage of Bates and Sawyer (No 2) (1977) 3 Fam LN N10; FLC ¶90-249, the Full Court of the Family Court, however, disagreed with the statement of Watson J that there must be a ‘bilateral intention’ to resume cohabitation. Rather, a judge must consider the whole of the evidence, and give full weight to the words ‘reasonable likelihood’ in s 48(3) of the FLA.

Further requirements for the granting of a divorce order Marriage counselling for marriages of short duration 4.53 Besides having to establish the irretrievable breakdown of their marriage in accordance with the provisions of s 48 of the FLA, spouses may also have to fulfil certain other requirements under the FLA in order to obtain a divorce order. If the parties have been married for less than

two years, they must ordinarily comply with the counselling provisions of s 44(1B), before they can file an application for a divorce order. According to s 44(1B) an application for a divorce of a marriage of less than two years duration must not be filed without the leave of the court. The exception to this is where a certificate stating that both parties to the marriage have considered a reconciliation with the assistance of a family and child counsellor or an approved counselling organisation (as to which see Pt II of the FLA and Pt 1A of the Marriage Act) is filed with the application. This provision was held to be mandatory in Marriage of Kelada (1984) 9 Fam LR 576; FLC ¶91-503. Leave, however, may be granted for a divorce application to be filed without this form if the court is satisfied that there are special circumstances that justify such a finding: s 44(1B) and (1C) of the FLA. The object of this subsection is plain. It is to ensure that, so far as possible, spouses and particularly young spouses who have not been married for very long, give careful consideration to their relationship before seeking a divorce order. This provision is not, however, confined to the young and inexperienced. It applies to all spouses of any age and notwithstanding the fact that either or both may have been married previously. 4.54 Section 44(1C) of the FLA then provides that if the court is satisfied that there exist special circumstances by reason of which the application for a divorce [page 133]

order should proceed, ‘notwithstanding that the parties have not considered a reconciliation’ with the assistance of an approved counsellor, the court may give leave for the application to be filed or, if the application has already been filed, the court may declare that special circumstances exist and the application will be deemed to have been duly filed in accordance with the terms of the subsection. The object of s 44(1C) is to enable one party to a short marriage to apply for dissolution of the marriage in circumstances where it would clearly be unreasonable to insist on compliance with the counselling requirements of s 44(1B). This may be the situation where, for example, the other party to the marriage has disappeared or is unable, perhaps through mental illness, to consider reconciliation in the required manner. Such a situation may also arise where the other party simply refuses to consider reconciliation, perhaps out of perversity or sheer indifference. It was held in Marriage of Nuell (1976) 1 Fam LR 11,239; FLC ¶90-031 that if the court is satisfied that the marriage has broken down, that neither party is interested in its continuance and both desire a divorce, particularly where there are no children, these facts would constitute a ‘special circumstance’. This case, however, has been disapproved in subsequent cases including Marriage of Malyszko (1979) 5 Fam LN N7; FLC ¶90-650 and the usual ‘special circumstances’ are said to be that one party cannot be located or simply refuses to attend. ‘Special circumstances’ 4.55 A court may grant leave under s 44(1C) of the FLA only if it is satisfied that there are ‘special circumstances’ by

reason of which the hearing of a divorce application should proceed notwithstanding that the parties have not considered a reconciliation in accordance with s 44(1B). Thus far, however, there is no unanimity of judicial opinion of what constitutes ‘special circumstances’ in the context of s 44(1C).

In Marriage of Birch (1976) 2 Fam LN N8; FLC ¶90-088, Barblett J said that although complete marital breakdown was not sufficiently ‘special’, the fact that two years had passed at the time of the hearing did satisfy the requirements of ‘special circumstances’. Conversely, Connor J in Marriage of Philippe (1977) 4 Fam LR 153 at 155; (1978) FLC ¶90-433 refused to accept either of these examples as ‘special’. In his view, ‘special circumstances’ refers to ‘facts peculiar to the particular case which set it apart from other cases’.

4.56 Section 44(1B) and (1C) were inserted in the FLA in 1983, and replaced the former s 14(6). The former s 14(6) was in similar terms, except that the two-year restriction applied to the hearing of the application rather than the filing of the application. A similar exception applied in the event of ‘special circumstances’. The decisions cited above related to the repealed s 14(6). [page 134]

In the only reported decision on the present sections, Marriage

of Kelada (1984) 9 Fam LR 576 at 579; FLC ¶91-503, Asche J stated that the only ‘special circumstances’ intended by parliament were: … cases where consideration of reconciliation is rendered impossible eg by the disappearance of the other party, or the refusal of the other party to attend counselling when requested.

Granting of a divorce where there are children under 18 years ‘Proper arrangements’ 4.57 Section 55A(1)(b)(i) of the FLA specifically concerns the care, welfare and development of children. This subsection states that a divorce order does not become absolute unless the court, by Order, has declared that ‘it is satisfied … that … proper arrangements in all the circumstances have been made for the care, welfare and development of … children’, the children in question being ‘children of the marriage who have not attained 18 years of age’. The subsection thus involves four elements: 1.

The court must arrangements.

be

‘satisfied’

concerning

certain

2.

The arrangements must be ‘proper arrangements in all the circumstances’.

3.

The arrangements must be ‘for the care, welfare and development of … children’.

4.

The arrangements must ‘have been made’.

In Marriage of Maunder (1999) 25 Fam LR 579; FLC ¶92-871, the Full Court allowed an appeal by the wife from the judgment of Frederico J in which his Honour granted the husband a decree nisi of the marriage. The decree was granted despite the court not being satisfied that proper arrangements had been made for the care, welfare and development of the two children of the marriage (born 1990 and 1994 respectively). In finding that Frederico J had erred, Finn, Kay and Moore JJ stated (at 579): Section 55A places a positive obligation on the court to protect the interests of children of divorcing spouses. Where the court is not satisfied that proper arrangements have been made for the children it must not grant a decree absolute, unless there are circumstances by reason of which the decree should become absolute.

The outcome of this matter is reflected in s 55A(1)(b)(ii), which provides that a divorce order does not take effect unless the court has, by order, declared that it is satisfied: … there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements [for the care, welfare and development of children] have been made.

[page 135]

‘Child of the marriage’

4.58 Section 55A of the FLA covers a much wider range of children than simply children of the marriage in the ordinary sense of this expression. Section 55A(3) includes within the scope of the expression ‘child of the marriage’ for the purposes of this section any child who was treated by the husband and wife as a child of their marriage at the relevant time, including not only an exnuptial child of a party but also a child who is not a child of either of them, for example, a foster child. In this context, ‘the relevant time’ means the time immediately before the husband and wife separated, and if there was more than one separation, the last separation. The definition does not, however, include an unborn child: see Marriage of Diessel (1980) 6 Fam LR 1; FLC ¶90-841.

‘Care, welfare and development’ 4.59 Section 55A(1)(b)(i) of the FLA is aimed at securing proper arrangements for the care, welfare and development of children of the marriage. There is no indication in the section, however, of what is meant by the phrase ‘care, welfare and development’ which replaced the word ‘welfare’ in 1996. The change was made so that the FLA would reflect the terminology of the 1989 United Nations Convention on the Rights of the Child. As yet it is not certain whether this change in expression reflects any change in the legal meaning of what is meant by the welfare of a child. Butterworths Australian Legal Dictionary defines welfare as ‘a state of well being; having one’s needs satisfied; happiness’. The Concise Oxford Dictionary defines welfare as ‘satisfactory state, health and prosperity, well being’. It is clear from judicial decisions that the definition of welfare is to have a very wide

interpretation: see, for example, Re D (an infant) [1977] AC 602 at 633; Marriage of Barnett (1973) 2 ALR 19 at 25. It is plain that welfare is to be considered in the light of contemporary social standards.

In Marriage of Horman (1976) 5 Fam LR 796 at 797; FLC ¶90024, Fogarty J stated: The test of the welfare of the child has to be determined having regard to the contemporary social standards, that is, it cannot be a totally subjective test based upon the views or standards of the individual parent, but objective at least in the sense of falling within the wide range of existing social standards.

When divorce order takes effect 4.60 When a divorce order is granted by the court it is not final until one month after the granting of the order. Upon the order becoming final either party to the divorce order may remarry: ss 55, 55A and 59 FLA. Should the parties remarry prior to the divorce order becoming final, the marriage would be considered an act of bigamy: s 94. [page 136]

Rescission of a divorce order

4.61 A rescission of a divorce order is rare, but in keeping with the principle of preserving the family unit, reconciliation of the parties may lead to rescission of a divorce order. The only time a divorce order can be rescinded is in between the period of making the order and the time the order becomes final: s 57 FLA. The first ground to apply for a rescission is that parties have reconciled.

In W and L [2007] FMCAfam 996 the parties had married in 2000 while the husband was serving an eight-year prison term for ‘sexual assault’. The marriage took place at the Ararat prison. The parties separated in 2004 and the wife filed an application for divorce in August 2007. The divorce order was granted. The applicant gave oral evidence with the approval of McInnis FM (as he then was), because she had difficulty with reading and writing. In a very touching support of her application for rescission of the divorce order, Ms W deposed: ‘… my husband and myself have decided that we do not want the divorce because of our love for each other and our strong feeling for each other’ (at [16]). And Mr L deposed that the order be dismissed as he and his wife realised that they still loved one another and had decided to reconcile. In granting the rescission McInnis FM said (at [22]): Where parties are married, as in this case, in prison, it would be artificial and unrealistic in my view to superimpose on that relationship what might otherwise be the ‘norm’ of reconciliation which would be found in other circumstances. The Act certainly does not provide any guidance as to the appropriate test I should apply to the concept of reconciliation in an application of this kind. Having regard to the evidence, I am satisfied that

for the purpose of s 57, there is sufficient to persuade the court that the parties have indeed reconciled.

The second ground to obtain a rescission of a divorce order is on the ground of miscarriage of justice: s 58 FLA. Rescission can only be sought before the divorce order becomes final. An application can be filed by one of the parties or the Attorney-General may intervene where it can be satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance the court thinks fit. If inclined to do so, the court may also order that the proceedings be re-heard.

In Cartland and Dean [2013] FCCA 1545, the parties had married overseas on 7 March 2011. On 3 July 2013 the husband made a successful application for a divorce order. The husband deposed that the wife had been served overseas on 6 May 2013 but that she refused to accept the documents, so he put them down in her presence, told her what they were and left. Before the divorce order became final the wife filed an application seeking a rescission of the divorce order. The wife claimed fraud by the husband, stating: [page 137] I am surprised that as promised instead of calling me as his wife he filed this ‘application of divorce is a fraud’ upon me. However, I have no complaint about our marriage life or even against applicant husband. [at [10]] The wife alleged she had not been served and that the affidavit

of service was fraudulent. Halligan J stated (at [22]): Assuming for one moment that the wife was not properly served, and assuming for one moment that the affidavit of service is false, there remains at this day no evidence from the wife to suggest that that is the case. So even as at today it would not be open to me to treat the wife’s application as raising an arguable case of fraud or perjury or other miscarriage of justice. In dismissing the application by the wife, Halligan J said (at [24]): There is no reasonable basis or prospect of success of the wife’s application to rescind the divorce order now, and in those circumstances I will summarily dismiss her application.

Appealing a divorce order 4.62 Upon a divorce becoming final, an appeal of a divorce order is not permitted: s 93 FLA.

Waldon and Kipley-Waldon [2013] FamCAFC 108 before Strickland J in the Family Court of Australia concerned an application by the husband for an extension of time in which to lodge an appeal against a divorce order made by Baker FM (as she then was) which became final on 1 October 2012. The parties had married in 1971 and separated in 2009; there were no children to which the FLA applied. The wife filed an application for divorce on 4 April 2012. The husband opposed the application and filed a response on 22 April 2012. Strickland J heard the contested divorce application on 29 August 2012 and handed down her judgment on 30 August 2012, finding that

the parties’ marriage had irretrievably broken down and that they had lived separately and apart for 12 months prior to the application (they had actually been separated for four years). The divorce was granted and would become final on 1 October 2012. The husband’s appeal failed and in the final paragraph of the judgment Strickland J stated (at [45]): This has been a farcical exercise on the part of the husband. He has chosen not to seek legal advice, even though I gave him the opportunity to do so, and importantly, he has clearly not thought through what he is attempting to achieve. The path he has chosen to follow simply goes nowhere and has been a waste of the court’s and the wife’s time.

In Basra and Ahmed [2016] FamCA 838 the wife inter alia made an application for a divorce. The granting of a divorce order was opposed by the husband on the basis that the parties had already been divorced In Lebanon. The husband’s response [page 138] was dismissed. In granting an Australian divorce to the wife the decision of Watts J centered on the effect the lack of natural justice afforded the wife in the proceedings in Lebanon. Contrast Chandra and Alhoub [2015] FamCA 77 in which a divorce in a foreign country was judged to be valid in that country and consequently in Australia.

Problem question Priani is an academic undertaking her PhD in Classics at a university in Melbourne. Since completing her undergraduate degree with first class honours, her parents, in particular her controlling and manipulative mother, had been pressuring her to marry one of a string of young men, deemed by them to be suitable husbands. Eighteen months ago, after refusing a number of prospective candidates, the pressure from her parents had become unbearable. In spite of her academic achievements, Priani’s mother considered her to be a failure and an embarrassment in her community because by her age, 25, she should be settled in married life and raising a family. Sachin is a veterinarian, who was at that time undertaking postgraduate studies at a university in Europe, having failed at all attempts at gaining a working visa to undertake further study and employment in Australia. His studies centre around the illnesses that prevail predominantly in the Clydesdale breed of horse. He desperately wanted to attend the university in Melbourne which devotes an entire unit of the postgraduate course to his particular interest. In addition, his childless aunt and uncle (close friends and neighbours of Priani’s parents) were eager that he should join them in Australia, and in effect become their ‘son’ who would one day inherit their money. His aunt, in particular, was delighted to act as matchmaker in concert with Priani’s mother and wrote long letters persuading Sachin of the benefits to be derived from a union with the daughter of such a family, including becoming an Australian citizen. Sachin needed little persuasion. He considered that he could achieve two aims in marrying Priani. He could undertake his desired studies, and greatly please his relatives. He decided that he must marry Priani and sought to gain the endorsement of Priani’s parents by convincing them that he was a wealthy veterinarian with a sizeable income and pool of assets.

Priani’s mother was delighted by the interest of such a lucrative candidate, and vowed to convince her daughter to marry him. In May last year, Priani’s mother issued an ultimatum. Either she marry Sachin or all financial support would be removed, and she would no longer be considered a member of their family. Priani was devastated and felt that she was left with little choice but to marry Sachin, as without her parents’ financial support not only would she be unable to continue her PhD but, according to her mother, she would be homeless, destitute and an outcast in her community. All she could do was delay the marriage date as long as possible. [page 139] Priani and Sachin were married at the registry in January of last year; only one month after the ceremony, Sachin made his motives clear. Not only was he not wealthy and revered by his peers as he had claimed, but he had only married her so that he could live in Australia and gain entrance to the specialised course offered at the university. Priani was far from devastated when she found out, as she thought she could maintain this charade of a marriage so that her parents’ financial support would be maintained. From that time on Priani and Sachin decided they should live essentially as flatmates as neither had the funds to rent a house alone. They no longer shared a bedroom and they led very separate lives and did not socialise together, although they continued to reside under the same roof. Now, however, Priani has found her own partner and they wish to get married, preferably within six months or less. Priani seeks your advice in relation to her options to end her marriage to Sachin.

Suggested answer Introduction There are two possible options available to Priani under the FLA. The first is an application for a decree of nullity and the second is an application for a divorce order. The first option is quite rare and, on the facts given, unlikely. Based on s 23B(1)(d)(i) of the Marriage Act, however, Priani will have a faint chance of establishing that her marriage to Sachin is void on the basis that there was no true consent to the marriage, but rather that her consent was obtained by duress. 1.

Is Priani and Sachin’s marriage a nullity?

(a) Jurisdiction to institute proceedings An application seeking a declaration that a marriage is null and void is a matrimonial cause. To satisfy the jurisdictional requirements, on the date the application is filed or made to the court, one party to the marriage must be either: an Australian citizen; or ordinarily resident in Australia; or present in Australia. It is unlikely that Sachin is an Australian citizen, given that the marriage has failed and he will likely be required by the government to leave Australia. While it would appear from the facts that Priani regards Australia as her home, it is not certain that she is an Australian citizen. Nevertheless, it would appear that she is ordinarily resident in Australia as she has lived here with a considerable degree of continuity, she has an established academic career at the university and Australia is her voluntary place of abode. Even if Priani fails to establish herself as ordinarily resident, given that she has recently moved into rented premises in Carlton, and that there is no indication

[page 140] that she plans to leave Australia in the short or long term, then provided she remains in Australia when the application is made or filed with the court, jurisdictional nexus will be established. (b) On what ground could Priani argue that her marriage is a nullity? Section 23B(1)(d)(i) of the Marriage Act indicates that Priani will seek to establish that her marriage to Sachin is void on the basis that there was no true consent to the marriage, because it was obtained by duress or fraud. (i) Duress This ground is usually invoked where consent to the marriage was obtained by force or threat of force such as a threat to life, limb or liberty. The threat of bankruptcy followed by a threat to kill has also been considered adequate duress to annul a marriage: Scott v Sebright (1886) 12 PD 21. While the duress exerted by Priani’s mother is unlikely to fall within the character of danger to life or limb, it may be regarded to be of a similar character to the financial ruin envisaged in Scott v Sebright. However, this argument may not succeed, given that such a threat was levelled in conjunction with a threat to kill which is likely to have been the dominating factor. The question is whether the parental coercion exerted by a controlling parent such as Priani’s mother is duress such as to render Priani’s consent to marriage to be no real consent at all. While the influence of her mother and prospective husband was enough to render the wife to be ‘not a free agent’ in Ford (falsely called Stier) v Stier [1896] P 1, of more weight is the decision of Watson SJ in Marriage of S (1980) 5 Fam LR 831; FLC ¶90-820. In this case, it was held that strong pressure without threats of physical harm or danger satisfied this ground of nullity, as Watson SJ ‘could not read down the ordinary meaning of duress as equated to oppression or coercion to such a degree that

there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion’. In fact, this case illustrates that it is not so much the nature of the act, but rather the effect on the victim’s mind that is the focus of the inquiry. The reasoning of Watson SJ was applied by Lindenmayer J in Marriage of Teves III and Campomayor (1994) 18 Fam LR 844; (1995) FLC ¶92-578 where it was also held that the level of duress at the time of the actual marriage ceremony is the critical factor to be proven on the balance of probabilities. The court held that it was necessary to show that, at the time ‘consent’ was provided, there was some ‘overbearing force’ operating. The nature of the pressure exerted by Priani’s mother falls into a similar category as that exerted in Marriage of S where the wife was also a victim of an arranged marriage. In this case, Priani is the victim of strong parental pressure as opposed to physical danger, although she does face an impoverished lifestyle should she refuse. Although it may be argued that Priani’s age distinguishes her from the impressionable child of 16 in Marriage of S, it is still probable, given the intense and consistent pressure and threats to withdraw financial support, that she could establish that she was trapped in the same ‘psychological prison’ as the child of 16. On this basis, she is likely to succeed in her application. [page 141] (ii) Fraud Priani’s case is also similar to the category of ‘immigration fraud’ cases. In the case of Marriage of Deniz (1977) 7 Fam LN N3; FLC ¶90-252, Frederico J held that the meaning of fraud pursuant to s 23B(1)(d) was wider than that at common law, and fraudulent behaviour which induced consent can be a

sufficient ground for nullity if it was considered to go ‘to the root of the marriage contract’. Although there is little indication on the facts, Priani could argue that she would not have married Sachin if she had been aware of the fact that he was only entering into the arranged marriage in order to facilitate his postgraduate studies. The strength of this argument will depend on the evidence which she is able to put forward as to her state of mind. She may fail on this account if it were to be uncovered that his motives were inconsequential to her decision, or that she would in fact prefer to enter a marriage to please her parents while at the same time living a very separate and free life from him. Her reaction was far from the nervous breakdown suffered by the wife in Deniz. If it does not fail on this account, it may fail on the basis of more recent ‘immigration cases’ such as Marriage of Otway (1986) 11 Fam LR 99; (1987) FLC ¶91-807 and Marriage of Hosking (1994) 18 Fam LR 581; (1995) FLC ¶92-579, where a narrower meaning was given to the term fraud in s 23(1)(d)(i), excluding from its scope deceptions as to the motivations for agreeing to the marriage. However, Priani could attempt to distinguish these cases from her own situation on the basis that in Otway and Hosking there was, in the beginning, an intention to fulfil the marriage vows, whereas Sachin never had any intention of doing so. However, even if this argument were to succeed, on the facts it is likely to be established that knowledge of such intentions would not have altered her decision to marry Sachin, and as such it cannot be said that the fraud procured her consent. 2.

Divorce order

We will consider the process and requirements that Priani must satisfy to end her marriage to Sachin by a divorce order. The only substantial issues at this point will be establishing separation under the one roof, and then fulfilling the special

conditions that s 44(1B) of the FLA places on marriages of less than two years’ duration. (a) Jurisdiction Section 4(1)(a)(i) of the FLA includes in the definition of matrimonial causes proceedings seeking a granting of a divorce order. Section 39(3) stipulates the jurisdictional requirements that are necessary for the institution of such proceedings. They are that on the date that the application for a divorce order is filed with the Family Court, either party to the marriage is: an Australian citizen; or domiciled in Australia; or ordinarily resident in Australia and has been an Australian resident for one year immediately preceding the date of the application. Applying this criteria to Priani’s situation, as noted above, it is not clear on the facts whether she is an Australian citizen; however, it is probable that she will succeed on either the domicile or ordinarily resident test. If relying on the latter, Priani will need to [page 142] ensure that she has been or that she remains resident in Australia for one year prior to her application. (b) Necessary requirements for the granting of a divorce order The key section is s 48 of the FLA which provides that: 1.

The only ground for an application for a divorce order is that the marriage has irretrievably broken down.

2.

This ground can only be established where the parties have separated and have been living separately and apart for a

continuous period of not less than 12 months immediately preceding the date when the application is filed. 3.

The court will only make the order if it is satisfied that there is no reasonable likelihood of a resumption of cohabitation.

(c) Can Priani satisfy s 48? Section 48 indicates that separation means that there is effective breakdown of the marital relationship or consortium vitae: Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; FLC ¶90-008; Marriage of Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051. Watson J in Todd and the Full Court in Pavey held that what comprises the marital relationship will vary from couple to couple, and even within a marriage from time to time: Marriage of G (1978) 4 Fam LR 537; FLC ¶90-498. Therefore, whether particular parties have separated is a question of fact and degree and whether the parties have separated may be determined by a comparison of the relationship when the marriage was in existence with that which pertained after the alleged breakdown: Marriage of Falk (1977) 3 Fam LR 11,238; FLC ¶90-247; Pavey. Further, it is the substance rather than every element of the marriage which must cease before s 48(2) is satisfied: Falk. The case law has indicated that there are three elements of separation: 1.

intention to separate;

2.

action based upon this intention; and

3.

communication of the intention.

The exception to the general rule is when the whereabouts of the other spouse is unknown or communication impossible: Marriage of Jennings (1997) 22 Fam LR 510; FLC ¶92-773; Marriage of Lane (1976) 1 Fam LR 11,385; FLC ¶90-055; Falk. Physical separation is not a necessary or sufficient condition as

the matrimonial relationship may have effectively broken down although the parties still live under the same roof and perhaps continue to render some household services to each other, while others may live apart yet still regard their marriage as intact: Marriage of Clarke (1986) 11 Fam LR 364; FLC ¶91-778. In fact, separation means departure from a state of things rather than from a particular place: Falk. While in most cases the intention to separate will be unequivocally communicated upon physical separation, where physical separation has occurred yet the intention to separate has not been communicated, time has been held to run from the date of formation of the intention, provided that this intention is communicated within [page 143] the 12-month period: Marriage of Tye (1976) 1 Fam LR 11,235; FLC ¶90-028. Nevertheless, in cases where the parties remain living under the one roof the element of unequivocal communication of intention has been held to be the crucial factor in establishing the point of separation: Falk and Lane. While there may be some argument that Sachin held the intention to separate as at the date of marriage, given that Priani will be seeking to establish separation under the one roof, the more conclusive date of separation is approximately February of last year, when Sachin divulged his motives for the marriage to Priani, and they decided to live essentially as flatmates, leading separate lives from that point: Lane and Falk. While they live under the same roof and perhaps continue to render some household services to each other (Clarke and Pavey), there is a clear departure from the state of things prior to February last year: Falk. The parties were no longer sleeping in the same bedroom and apart from family occasions did not socialise

together from this point on, which are clear indicators of separation despite parties residing under the one roof: Marriage of Hodges (1977) 2 Fam LR 11,524; FLC ¶90-203; Marriage of Caretti (1977) 3 Fam LR 11,374; FLC ¶90-270. There is, simply put, no longer a sharing of the ‘essential qualities of common life’: Todd. The issue of whether the separation must be apparent to the world at large remains unsettled at this point as Evatt CJ in Marriage of Fenech (1976) 1 Fam LR 11,250; FLC ¶90-035 held that there must be some overt evidence of the separation, whereas in Marriage of McLeod (1976) 1 Fam LR 11,280; FLC ¶90-043 it was held that the fact that the parties kept up the appearances of marriage to protect their social position was not determinative. On either position, given that Priani and Sachin do not socialise together, it is likely their separation is apparent to the outside observer. Further, if there still remains the requirement of corroboration as suggested in Pavey, Priani should organise a witness who is prepared to support her claim that her marriage to Sachin has broken down, and that they only reside together as they each cannot afford their own accommodation, and given that there is no animosity between them, they have no difficulty living as flatmates. Finally, as the parties cohabited for such a short period of time, have lived separately and apart since February of last year and given that Priani has a new partner whom she wishes to marry, s 48(3) should be satisfied in that there is no reasonable likelihood that cohabitation will be resumed. (d) Qualifications placed on a granting of a divorce order for a marriage of less than two years Given that Priani and Sachin’s marriage has been one of less than two years’ duration, s 44(1B) of the FLA requires that Priani’s application for a divorce order be filed only if the

prescribed form stating that the parties have considered reconciliation with the assistance of an approved family and child counsellor accompanies it. However, leave may be granted for her application to be filed without this form if the court is satisfied that there are special circumstances that justify such a finding: s 44(1B) and 44(1C) of the FLA. Although in Marriage of Nuell (1976) 1 Fam LR 11,239; FLC ¶90031 ‘special circumstance’ was interpreted broadly, subsequent cases including Marriage of [page 144] Malyszko (1979) 5 Fam LN N7; FLC ¶90-650 had disapproved of this approach and the usual ‘special circumstances’ are said to be that one party cannot be located or simply refuses to attend. Although Priani’s case seems similar to Nuell, it would appear that the parties will be required to attend counselling and obtain the certificate to accompany the application for a divorce order. In summary, Priani may argue that her marriage to Sachin should be declared void on the basis of s 23B(1)(d)(i) of the Marriage Act 1961 (Cth) as her consent was obtained by duress. It is, however, unlikely that she will, or should succeed, on the basis of the facts given. It is a much more valid proposition — but not a certainty — that Priani could satisfy the criteria to obtain a divorce order as it is probable that she will be able to establish separation under the one roof for a period of 12 months, and that there is no likelihood of resumption of cohabitation. Nevertheless, if granted a divorce order it is likely that she and Sachin will be required to comply with the counselling requirements, thereby fulfilling the special conditions that s 44(1B) of the FLA places on marriages of less than two years’ duration.

Further discussion 1.

Discuss the factors said to contribute to marriage breakdown.

2.

Ought society as a whole accept responsibility for those factors?

3.

Compare and contrast the findings in Marriage of S (1980) 5 Fam LR 831; FLC ¶90-820 and Marriage of Teves III and Campomayor (1994) 18 Fam LR 844 at 855; (1995) FLC ¶92-578. Are there policy differences between the two?

4.

Is the concept of ‘separation under one roof’ detrimental to marriage as an institution?

_______________________ 1 2

See (viewed 24 March 2017). D Edgar, Men, Mateship, Marriage, Harper Collins, Sydney, 1997, p 313.

[page 145]

5 Children Mankind owes to the child the best that it has to give … Geneva Declaration of the Rights of the Child, 1924

Introduction Children as rights-bearers 5.1 A vital aspect of Pt VII of the Family Law Act 1975 (Cth) (FLA) which deals with children is establishing the manner in which the rights and best interests of children are to be acknowledged and applied in matters concerning them. The United Nations Convention on the Rights of the Child 1989 (the UN Convention) is an international treaty that recognises the human rights of children, defined as persons up to the age of 18 years. It is an international convention that recognises a broad range of rights, setting out the civil, political, economic, social and cultural rights of children. It is monitored by the United Nations Committee on the Rights of the Child which is composed of members from countries

around the world. One hundred and ninety-two member nation states (countries) of the United Nations, except for the USA, South Sudan and Somalia, have ratified it, either partly or completely. The UN Convention was ratified by the Commonwealth executive arm of government on 17 December 1990 and it entered into force for Australia on 16 January 1991. Therefore Australia is referred to as a states party or member state. The UN Convention establishes in international law that states parties must ensure that all children — without discrimination in any form — benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in achieving their rights in an accessible and active manner. This is the right of all children of whatever creed or colour. Tragically, we know this not to be the case. Even a cursory consideration of many matters in this chapter will show that ‘happiness, love and understanding’ may be a very scarce commodity in the lives of some Australian children, much less universally. Indeed it is doubtful that more than a handful of parents — even in Australia — have more than a passing knowledge of the UN Convention and its place in the lives of children. Perhaps there [page 146] might be some value educationally if on the registration of a

birth, a parent was given a simple version of the UN Convention in a language of their choice. The standards in the UN Convention were negotiated by governments, nongovernmental organisations, human rights advocates, lawyers, health specialists, social workers, educators, child development experts and religious leaders from all over the world, over a 10-year period. The result is a consensus document that takes into account the importance of tradition and cultural values for the protection and harmonious development of the child. It reflects the principal legal systems of the world and acknowledges the specific needs of developing countries. The UN Convention provides a universal set of standards to be adhered to by all countries. It reflects a new vision of the child. Children are neither the property of their parents nor are they helpless objects of charity. They are human beings and are the subject of their own rights. The UN Convention offers a vision of the child as an individual and a member of a family and a community, with rights and responsibilities appropriate to his or her age and stage of development. Recognising children’s rights in this way firmly sets a focus on the whole child. Previously seen as negotiable, the child’s needs have become legally binding rights.1

Capacity to enforce rights 5.2 It stands to reason that while children are deserving of rights, they do not generally have the capacity to enforce those rights, especially when very young. In the matter

following, however, a 17-year-old girl successfully sought an injunction preventing her family taking her from Australia to Lebanon for the purposes of marriage.

In Kandal and Khyatt [2010] FMCAfam 508 a child (who under s 65C of the FLA may apply for a parenting order, as defined in s 64B(2)) aged 17 years brought an ex parte application for an injunction restraining her mother and stepfather (with whom she was living) and her father (who agreed with the mother) from removing her from Australia. The application was supported by an affidavit sworn by an officer of the Australian Federal Police (AFP) who, following a telephone call from the child, ‘formed the view that the child was quite frightened’, saying that ‘she was being taken against her will by her mother, and perhaps other family members, to Lebanon to be married’, and was being booked (she understood) to fly out of Australia on 19 May 2010. Dunkley FM (as his Honour then was) made ex parte orders on the evidence of the AFP. Accordingly, the injunction sought by the child was granted, together with an order placing her on the AFP’s Airport Watch List. In addition, the respondent parents and step-father were: … restrained by way of injunction from assaulting, threatening, harassing or intimidating the Applicant, Ms Kandal, born [in] 1993 or otherwise engaging in behaviour that causes the Applicant, Ms Kandal, born [in] 1993 to be reasonably fearful for her personal safety. [at 11]]

[page 147]

Capacity to enforce the right to physical integrity — the infliction of physical punishment 5.3 As the provisions of the FLA have been amended over time the legislature appears to have given greater prominence to the need to protect children from violence and abuse, or the risk of violence and abuse. The authors contend that there is still much to be achieved on behalf of children. For example, in relation to an adult intent on hurting a child, the vulnerability of the child is obvious. As each right of the child contained in the UN Convention is given public scrutiny and at least acknowledged in the FLA, more rights of the child could be bolstered outside of this piece of legislation. No doubt Australia feels its adherence to principles contained in the UN Convention is exemplary. There is, however, still an area that is controversial in its power to divide opinion — the infliction of corporal punishment on a child. Australian parents are allowed in law to physically punish their children provided such punishment is ‘reasonable’ (that is, the legal defence of ‘reasonable chastisement’ which dates back to English common law of 1870 and has been adopted by other common law jurisdictions). Such a defence was once open to a husband who ‘chastised’ his wife. This defence is now anathema in our society intent on preventing and punishing violence between adult men and women. Vulnerable children deserve no less protection. The Committee on the Rights of the Child (the Committee) is the highest international authority for the interpretation of the UN Convention. It is an internationally elected body of independent experts whose headquarters is in Geneva. The Committee and many aligned bodies consider physical

punishment of children to be a clear breach of both the letter and spirit of the UN Convention. Many Articles in the UN Convention support the official stance of the Committee in its advocacy to ban the physical chastisement of children in all member states. In particular, Article 19 of the UN Convention on the Rights of the Child requires states to 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 of the child …

The judges of the Family Court and the Federal Circuit Court are showing a growing awareness of the harm done to children, both physically and mentally, by harsh punishment. As a consequence, it is now not unusual for a parenting order to include the forbidding of physical chastisement by either parent or any other person.

In Martel and Martel [2013] FCCA 525 at [13], a matter heard before Coakes J, an order was made that: Each parent is restrained from punishing either [X] or [Y] by any physical means including but not limited to smacking, slapping, pushing, grabbing, holding or using a slipper or any other instrument and each parent is further restrained from causing or permitting any other person to administer such form of punishment to either child.

[page 148] It may be argued that if the additional object to Pt VII s 60B(4) of the FLA is conscientiously applied, it may lead to further parental orders forbidding corporal punishment. This would, however, protect only those children who come before the Family Court, whereas if the Commonwealth Government were to take Australia’s obligations as a signatory to the UN Convention seriously then corporal punishment, whether by parents or others, would become subject to legislative sanction. As the following cases show, the Family Court did not hesitate to order that parents, grandparents and others be restrained from inflicting physical punishment on children in their care. The matter following is complicated by religious beliefs, in particular those of the mother and to a lesser degree the father. The Family Court is always mindful of the need to respect the religious views of parents, except when they impinge on the best interests of the children.

Holinski and Holinski [2016] FamCA 45 (Holinski) before Hannam J concerned the parenting of two small boys, L almost six and N aged three. The father was the applicant in the matter asking the Family Court inter alia for an order forbidding the mother from using inappropriate physical punishment on the two children of the marriage. In the evidence of the father, the mother of the boys belonged to K church which, it appeared, held extremist views concerning various matters, including government and banking institutions, gun ownership, health and vaccinations, home schooling and child rearing practices, including corporal punishment for children from babyhood onwards. The father

alleged that the teachings of the K church with which the paternal family were previously affiliated and with which the mother had re-affiliated, promoted the physical punishment of children using a rod, home schooling as the only legitimate form of education and the idea that the minister of a church should be permitted to discipline the children of members of that church. The father gave evidence that the mother ‘believed that physical discipline of young children with a rod or similar implement was appropriate’ (at [45]). When cross-examined in relation to the physical discipline of the boys, the mother said that: … she had researched the topic, but had not formed the view that she should abstain from using physical discipline because she follows the Bible which she said advocated for physical discipline. The mother referred to a number of passages from the Bible to guide her in this regard. She said that for some time in 2013 she had not used [an implement for] discipline but subsequently changed her mind as she found alternative methods ineffective. She also said that even if the father had formed the view that there are more appropriate ways to discipline the children she would not stop hitting them as discipline. [at [47]] In addition to the Bible, the mother also followed the guidance of To Train Up a Child, a book written by M Pearl and D Pearl. This book canvassed methods of rearing children using harsh forms of discipline including ‘hitting children under the age of 12 months’ and that ‘the recommended implement be a willowy branch’ (at [46]). If the children are ‘playing up’, being defiant or complain that they are hurt then the parent should ‘pull out a terrible tasting herbal potion and give [the children a spoonful]’ (at [49]). [page 149]

Both the mother and father took the children out ‘street preaching’, with the children handing out gospel tracts. In relation to orders made involving physical punishment, Hannam J held: (20) The mother and father are each restrained from: … (e) Hitting or striking the children or either of them for any purpose. (f) Allowing any other person to hit or striking [sic] the children, or either of them for any purpose. These orders are very much ‘bare bones’ in that there is no mention of restraining the mother from punishing the children by means of a ‘terrible tasting potion’ in circumstances in which, amongst other transgressions, the children ‘complain that they are hurt’. Nor is there an order restraining the parents from taking the children ‘street preaching’. It is difficult to see how either of these things promotes the best interests of L and N. This was not the first time that this matter had come before the court. Several judgments were brought to bear on the ability or otherwise of each parent to look after their children in a responsible way. In the present judgment Hannam J revisited an earlier hearing (Holinski and Holinski [2015] FamCA 184) by saying (at [65]): So far as physical discipline is concerned, it appears that both parents agreed during the currency of the marriage that some level of physical discipline of the children was appropriate. It is in my view, of some concern that the mother continued to consider at the end of the hearing in May 2015 that physical discipline was appropriate in light of the family consultant’s evidence. It is also of some concern that she continued to search for other methods of discipline which are akin

to physical discipline (the administration of vinegar) after indicating to the Court in the May proceedings that she agreed to an order restraining the parents from using physical discipline.

In the matter of Salah and Salah [2016] FamCAFC 100 before May, Ainslie-Wallace and Cronin JJ a mother successfully appealed a judgment of Dunkley J in the Federal Circuit Court inter alia allowing the father unsupervised time with the children of the marriage, C born in 2011, B in 2012 and A in 2013. This was despite a consent order by the parties one month prior to the hearing before Dunkley J that the father’s time with the children would be supervised by the paternal grandparents or paternal aunt. Before the Full Court the father claimed that he agreed to supervision only because it ensured time with the children. The Full Court agreed that the matter should be re-heard by a trial judge other than Dunkley J. The Full Court agreed with the mother that no reason had been given for allowing the father unsupervised time with the children, saying (at [65]): … it was incumbent upon his Honour to give reasons for the findings and the orders, and he did not. There was no indication which would allow the mother to understand why he rejected the mother’s proposal that the father’s time be spent in the presence of a relative. [page 150] Interim orders were brought down by the Full Court including: That each of the parties be restrained from using

physical discipline on the children and shall use their best endeavours from permitting any third party to do so. [at [15]]

Examples of the injunctive powers available in circumstances in which parents assault their children in the form of corporal punishment include: Wood and Moulson [2011] FamCA 751 at [10]; Jane and Jane [2012] FamCA 1029 at [10]; Pullman and Pullman (No 2) [2012] FamCA 980 at [112]; Sadler and Lawless [2012] FamCA 856 at [10]; Farnham and Farnham [2012] FamCA 742 at [8]; Matthews and Farmer [2012] FamCA 672 at [55]; Keaton and Mahoney [2012] FamCA 658 at [67]; Grattan and Bancroft [2012] FamCA 913 at [8]; Zabini and Zabini (No 2) [2013] FamCAFC 111 at [15]; O’Connor and Salman [2013] FamCA 488 at [13]; Stone and Stone [2013] FamCA 357 at [54]; Bachiega and Hamilton [2013] FamCA 58 at [8]; Benson and Browne [2013] FamCA 710; Ghanem and Hilal [2014] FamCA 137 at [29]; Ibbot and Chaconas [2014] FamCA 73 at [15]; Vieth and Camkin [2014] FamCA 68 at [219]; Smedley and Snowden [2014] FCCA 762 at [19]; Fell and Hartell [2014] FamCA 111 at [11]; Ravice and Hillon [2014] FamCA 2 at [16]; Dickens and Ventura [2016] FamCA 1110; Bailee and McKayla [2016] FamCA 1125; Sullivan and Cunez [2016] FamCA 359; Hylands and Collette [2017] FamCA 46.

Changes to the FLA to reflect the UN Convention 5.4 Article 3(1) of the UN Convention stipulates that in actions concerning children, the best interests of the child is

the primary consideration. Article 7 indicates that, as far as possible, a child has the right to know and be cared for by his or her parents. Article 9(3) indicates that children of separated parents have a right to maintain personal relations and direct contact with both parents on a regular basis except where it is contrary to their best interests. Articles 18 and 19 respectively require state recognition of the principle that both parents share responsibility for the development of their child and, further, the state must take all appropriate legal, administrative, social and educative measures to protect children from all forms of violence and abuse. Governments of countries that have ratified the UN Convention are required to report to, and appear before, the United Nations Committee on the Rights of the Child periodically to be examined on their progress with regard to the advancement of the implementation of the UN Convention and the status of child rights in their country (refer to Chapter 10 for further discussion on the current report made by Australia). Both the terminology employed and rights espoused in the UN Convention are reflected in the reforms introduced by the Family Law Reform Act 1995 (Cth), which came into operation on 11 June 1996, and those even more far-reaching amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and the Family Law Amendment (Family Violence and Other Measures Act) 2011 (Cth). [page 151] As the Full Court held in B and B; Family Law Reform Act

1995 (1997) 21 Fam LR 676; FLC ¶92-755 (B and B), the reforms made by the Family Law Reform Act 1995 (Cth) to the children provisions contained in Pt VII of the FLA represented a major restatement of the law, rather than mere semantics. Consistent with the UN Convention, the concept of ‘best interests’ replaced ‘welfare’ as the paramount consideration and the use of proprietary language was abolished. This was achieved by altering the types of orders available to emphasise the concept of continuing ‘parental responsibility’ for a child’s ‘care, welfare and development’. Rather than giving parents rights to custody and access, Pt VII provided for parenting orders relating to ‘residence’, ‘contact’ and ‘specific issues’. Further, ‘family violence’ was explicitly recognised as significant to decision making in relation to children. By introducing these new concepts, parliament was seeking to remove proprietorial notions surrounding the parent–child relationship, and to provide an alternative to the ‘winner takes all’ outlook. These changes also engendered consistency with the terminology and philosophy of the UN Convention. The Full Court in B and B indicated that, while the UN Convention has been ratified, it was not implemented wholesale into domestic law and until the Family Law Amendment (Family Violence and Other Measures Act) 2011 (Cth) was not even specifically referred to in the FLA. Nevertheless, it was acknowledged that it assisted in the interpretation of the FLA as the court was to be mindful of the obligations under the UN Convention, taking them into account in the development of the common law: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183

CLR 273 affirmed in B and B. In Teoh, Gaudron J stated (at [6]): The significance of the UN Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilized countries. If there was any doubt whether that were so, ratification would tend to confirm the significance of that right within our society. Given that the UN Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the UN Convention would be given effect.

It is clear that the formulation of s 60B of the FLA, which sets out the objects and principles of Pt VII of the FLA, was influenced by the UN Convention. There are two Full Court decisions that discuss the relationship between the UN Convention and s 60B as it was prior to the 2006 amendments. The first is B and B, and the second is B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181 per Nicholson CJ, Ellis and O’Ryan JJ. The second decision was overruled by the High Court, although the majority of the High Court Justices did not find it necessary to discuss s 60B.

In B and B, the court (Nicholson CJ, Fogarty and Lindenmayer JJ) stated in relation to the UN Convention (at 741–2): First, while that Convention may not have existed at the time of the passage of the Act, the concept of the rights of children was well established and had been recognised by

[page 152] the 1959 UN Declaration of the Rights of the Child to which Australia acceded. This Declaration had been preceded by the Declaration of Geneva adopted by the League of Nations in 1924. The 1924 Declaration committed all members, of which Australia was one, to be guided by its principles. In addition, as noted in the first paragraph of Australia’s Report Under the UN Convention on the Rights of the Child: (1) Successive Australian governments have acknowledged the rights of children as fundamental human rights. In 1981 this acknowledgment was made through the inclusion of the UN Declaration on the Rights of the Child 1959 as a Schedule to the Human Rights Commission Act 1981. In 1986 this acknowledgment was re-affirmed by the inclusion of the Declaration as a Schedule to the legislation which replaced the 1981 Act, the Human Rights and Equal Opportunity Commission Act 1986. …

Against such a backdrop, it is hard to see how the UN Convention can fail to be considered a vital template in all matters involving Australian children or those minors who come to our shores for protection.

5.5 Further developments and clarification were introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). On 1 July 2006, this Act introduced major reforms to Australian family law. For example, the 2006 legislation carried with it strong messages about shared parenting after separation. This continues to be a very important principle in judicial decision making with regard to children. A key feature of the 2006 amendments was the shift, which remains in the present FLA, towards consideration of ‘equal time’ or ‘substantial and significant

time’ for both parents, where shared parental responsibility is considered: FLA s 65DAA. The changes also carry an emphasis on dispute resolution between separating parties before, or instead of, attending court in family law cases. In the majority of cases, as a result of the amendments references to ‘residence’ were replaced by ‘with whom a child lives’ and references to ‘contact’ by with whom a child ‘spends time’ and with whom a child ‘communicates’. 5.6 Some judges have found the 2006 terminology cumbersome. In Lawrence and Abel [2013] FMCAfam 73 at [5]–[7] Roberts J referred to this, stating: In a 2008 decision [Mills and Watson [2008] FMCAfam 2], FM Walters (as he then was) said: Although the law now refers to a child ‘spending time’ with a person (usually a parent) with whom the child does not live, I shall use — from time to time in these reasons — the obsolete term ‘contact’. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so. In both Carpenter and Lunn [(2008) FamCAFC 143] and Chappell and Chappell [(2008) FLC ¶93-377] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said: … The new legislation replaced the legal concept previously known as ‘contact’ with the concept of a child ‘spending time’ with someone.

[page 153]

The legislation, however, does not prohibit the use of the noun ‘contact’ in its everyday sense. In these reasons, we propose to use ‘contact’ interchangeably with expressions such as ‘spend time with’. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary. In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I too will use the word ‘contact’ interchangeably with terms such as ‘spend time with’.

With respect to the dilemma of the judges, the confusion is easily solved by the simple use of ‘with whom a child lives, spends time and/or communicates’. The 2006 amendments also removed the former categories of residence, contact and specific issues orders in relation to children and refer simply to parenting orders. The terms used today are ‘with whom a child lives, spends time and communicates’. This aspect remains very important to note: that contrary to popular belief, the inquiry of the House of Representatives Standing Committee on Family and Community Affairs (Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, Parliament of the Commonwealth of Australia, 2003) did not recommend a presumption that children should spend equal time with each parent. Rather, it recommended that the ‘best interests’ of the child should continue to be the paramount consideration in decision making in regard to deciding how children should be cared for after separation. But it did say that a number of changes should be made to the law. Pivotal to those changes was a rebuttable presumption. The presumption is of equal shared

parental responsibility. This presumption can be rebutted where there are reasonable grounds to believe one parent has perpetrated family violence or there are concerns about child abuse. To the layperson the fact that the court required ‘reasonable grounds’ as the basis for belief that a child was being abused may indeed appear just that — reasonable. The question then arises, however, as to the standard required as proof of abuse by the court. It is possible that a person may have just a vague feeling of unease or suspicion about the safety of a child, or, at the other extreme, a firm belief targeted on specific factual events. Mere suspicion is unlikely to satisfy any test of ‘reasonable grounds’. Under the 2006 amendments, the test was set at a much higher standard than previously under the 1995 amendments. In line with the 2006 amendments a person alleging violence or abuse against a child was obliged to establish ‘reasonable grounds’ for such claims. For a victim of covert violence the evidentiary burden of proving such abuse may have been virtually insurmountable. Almost certainly, such claims needed bolstering by objective and specific expert evidence. In addition, under the onerous demands of the 2006 amendments, evidence from a parent alleging abuse may have been seen as less probative because of emotional distress or simply a desire for revenge. The difficulties for children are even more obvious. Children’s evidence is often seen as fanciful, or as a result of a vivid imagination. The very nature, however, in particular, of sexual abuse, is covert. Sexual interference may be explained away by an adult as mere play or even necessary attention to hygiene. The grooming of a child for future sexual abuse may appear no more

[page 154] than loving attention. A person who is a predator may be the parent, relative, or someone closely connected to a child. The demanding nature of the objective test underlying ‘reasonableness of allegations’ was recognised by the Full Court of the Family Court in Amador and Amador [2009] FamCAFC 196 before May, Coleman and Le Poer Trench JJ where it was stated (at [79] and [81]): 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.

With the passing of more than a decade a valid question to be asked is how the 2006 amendments have lived up to the promise of a better outcome for children in matters before the Family Court. If one considers the much stated aim behind the amendments was to bring greater harmony to situations involving abuse where there is a question before the Family Court as to with whom a child is to live, spend time or communicate, then the promise has not been fulfilled. In particular, the widely held misunderstanding that joint parental responsibility gave unsuitable parents equal time with a child was, in many cases, detrimental and traumatic

for children. There are few easy answers in the effort to curb violence within the family but perhaps discussion and guidance in relation to the responsibilities of parenting could be compulsory in at least four years of secondary education. There is no doubt that the 2006 amendments to the Act strengthened the principle of equal shared parental responsibility. Although ideal in cases of little animosity and no reported violence or abuse, equally judges may have felt under pressure to bring down orders that, in some cases, gave children unsupervised time with abusive parents. The adversarial system of law and the way in which we are trained as lawyers to ‘win’ for a client may also be unhelpful in family law matters in which violence plays a part. There is a dichotomy between the natural drive to advocate on behalf of one’s client and the much broader ethical issue of the protection and best interests of children. In the years after the inception of the 2006 amendments there was considerable criticism of both the spirit and substance of the changes to the FLA. In particular the widespread belief that joint parental responsibility equated to equal time with a child — whatever the circumstances — gave rise to dissatisfaction. In addition, there was much criticism of the provisions in relation to family violence. They were seen as far too narrow in their definition and lacked real understanding of the nature of violence in the home. Moreover, the evidentiary burden implicit in the provisions was likely to dissuade a victim of violence from reporting such behaviour. Therefore it was felt that the 2006 amendments did little to protect children or adult victims of violence. In light of the fact that more than half of the

parenting cases that come before the Family Court involve allegations by one or both parties that the other has [page 155] been violent, the then Rudd Labor Government took steps to ameliorate the sense of injustice felt by many who had personal experience of the 2006 amendments. Many professionals within the family law system expressed views that encouraged the Commonwealth Government to explore ways of improving the provisions of the FLA to better acknowledge the contemporary understanding of the breadth and consequences of family violence. As a response to the general disquiet concerning the manner in which the 2006 amendments dealt, amongst other things, with violence, the Commonwealth Government enacted the Family Law Amendment (Family Violence and Other Measures Act) 2011 (Cth) (Family Violence Act) which came into effect in June 2012. The government decided that amendments to the FLA were necessary after research suggested that the parenting changes made in 2006 may have contributed to increasing rates of family violence and child abuse around relationship breakdown. Nevertheless, the Family Violence Act retains the substance of the shared parenting responsibility laws introduced in 2006 and continues to promote a child’s right to a meaningful relationship with both parents where this is safe for the child. Under the Family Violence Act, however, there is a significantly greater recognition of the types of conduct that may constitute abuse, for example, controlling or coercive

behaviour may be seen as abuse. In addition, the necessity of proving the ‘reasonableness’ of a person’s fear was removed from the legislation. Under the most recent amendments the supposedly driving force of the legislative changes is the protection of children against family violence. In relation to the UN Convention there is a piecemeal addition to the objects and principles underlying the manner in which Pt VII of the FLA is to be applied. Section 60B(4) states: ‘An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.’ This seems altogether too limited in scope and effect. It is difficult to imagine a situation in which a judge of the Family Court will need recourse to s 60B(4) in order to bring down a decision under Pt VII of the FLA. It is equally difficult to imagine that the drafting of the amendments was done without contemplation of that fact. In this country it has never been part of collective political thought that the human rights instruments to which Australia is a signatory should be incorporated into domestic legislation. The UN Convention is no exception. This is made abundantly plain by the legislators in the Replacement Explanatory Memorandum in relation to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. In discussing the additional object of s 60B(4) (at pp 6–7, para 24) and its purpose, it is stated: … a further object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child (the Convention). The purpose of this object is to confirm, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Act, to the extent its language permits, consistently with Australia’s obligations under the Convention

… To the extent that the Act departs from the Convention, the Act would prevail. This provision is not equivalent to incorporating the Convention into domestic law.

At p 7, para 25 of the Explanatory Memorandum there is a somewhat self-laudatory implication by the legislators that the FLA offers greater protection to [page 156] children than does the UN Convention. This is to the effect that ‘best interests’ of a child in the UN Convention being elevated to ‘paramount status’ under the provisions of Pt VII of the FLA is a superior level of protection. Whether it makes a real difference in application or is simply semantics is debatable. The Explanatory Memorandum also informs us: ‘Nothing in the Convention prevents Australia enacting stronger protections for the rights of the child than the Convention itself prescribes.’ If only the Commonwealth Government took action to do exactly that, the lives of the many Australian children neglected and abused by their parents and others would be improved. Some of the cases in this chapter illustrate the miserable lives led by many children and the difficulty and frustration felt by judges who must do their best in appalling circumstances. If indeed s 60B(4) aids the work of the judiciary so much the better, but to say that s 60B(4) ‘gives effect’ to the UN Convention seems, at best, an exaggeration.

The protection of children generally

5.7 It may be trite to say that the best way to protect children is to prevent child abuse and neglect from occurring in the first place. Nevertheless, the truth of the statement is obvious: parents and society in general would benefit from the recognition that it is not simply a matter for the legislative child protection schemes as they now stand. By the time such intervention is in place, the development of all aspects of the child may already be endangered. This means that Australia must be proactive rather than reactive in protecting children. It means moving from seeing ‘protecting children’ merely as a response to abuse and neglect to one of educating parents and society generally on the need to promote the safety and wellbeing of children from birth. This should be the function of all governments in Australia. For an excellent discussion, see Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020 (An Initiative of the Council of Australian Governments) (‘National Framework’). Underpinning the principles of the National Framework is the statement: ‘Children have a right to be safe, valued and cared for. As a signatory to the United Nations Convention on the Rights of the Child, Australia has a responsibility to protect children, provide the services necessary for them to develop and achieve positive outcomes, and enable them to participate in the wider community’ (at p 12). Of course it will be said that further protection means further expenditure of money, but so be it. Governments have much to gain from early protection of young children rather than dealing with adolescents and adults to whom ordinary society feels alien and recourse to drugs or alcohol, or indeed violence, early becomes a way of life.

There is abundant evidence that many, though not all, children who personally suffer violence or are exposed to violence are afflicted by some or all of the following characteristics: depression and anxiety; evidence of trauma; [page 157] increased levels of aggression; antisocial behaviour; lack of social confidence and competence; problems of temperament; lack of self-esteem; pervasive fear; mood swings; loneliness; difficulties at school; conflict with peers; impaired cognitive functioning; and/or increased likelihood of substance abuse. While research and reports do much to enlighten us as to the fragility of children and the lack of security in which

many children live, equally it is instructive to hear directly from judgments involving such children.

In Janssen and Janssen (No 2) [2016] FamCA 796 before McClelland J there were allegations of physical, verbal and emotional abuse perpetrated by the father against the mother and the parties’ three children. The court found the children had been exposed to family violence as defined in s 4AB of the FLA (at [4]). His Honour also drew attention to the UN Convention on the Rights of the Child by stating (at [89]): Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (‘the Convention’). Article 19 of the Convention requires parties to the Convention to take steps, including through ‘judicial involvement’, 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 of the child.

In looking to the future McClelland J was satisfied that there existed an unacceptable risk of physical and/or psychological harm if the children were to spend time with the father. Although lengthy, we consider it valuable to cite the exact form of just some of the orders made by McClelland J to protect the children and mother from harm. They illustrate in a stark manner the belief of the court as to the propensity for violence by the father. (1) All previous parenting orders are discharged. (2) The mother have sole parental responsibility for the children of the marriage, namely X born … 2008, Y born … 2009, Z born … 2011 (‘the children’). [page 158]

(3) The children live with the mother. (4) The children are to spend supervised time with the father, in accordance with the provisions of Order (5) below, on two occasions in each year, for one hour duration, and, in lieu of agreement, on 5 July and 20 December each year, commencing on 20 December 2016. (5) The time the children are to spend with the father, pursuant to Order (4), is to: (a) be supervised by such professional supervising agency as is mutually agreed, and in lieu of agreement, CatholicCare Supervised Contact and Changeover Centre … (‘the Contact Supervising Agency’); (b) be at the expense of the father; (c) occur in a contact centre; (d) be terminated in the event that the father engages in any of the following conduct: (i)

denigrating the mother, or any member of her household or family;

(ii)

questioning the children about their mother’s personal life or the personal life of members of the mother’s household or family;

(iii) requesting the children to ask the mother or any other person including the mother’s family, the teacher and priest about spending more time with him; (iv) requesting the children to ask the mother about communicating with him by telephone;

(v) enquiring with the children where they attend school or live, with whom they live, or where they attend after school activities; (vi) discussing these proceedings or any other court proceedings between the parties, with the children. (6) Except as otherwise provided for in these Orders, the father is to spend no time with the children or communicate with the children by any means. (7) For the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party is to do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency. (8) For the purpose of facilitating the time the children spend with the father pursuant to these Orders, each party do all things necessary and sign all necessary documents to apply to use the services of the Contact Supervising Agency. (9) The father be restrained from: (a) Providing the children with food during the time the children spend with the father pursuant to Order (4); (b) Giving the children anything during the supervised time including but not limited to toys gifts or presents; (c) Sending the children gifts or presents; (d) Approaching or initiating any direct contact with the children except as provided for in these Orders; (e) Approaching or initiating any direct contact with

the mother except representative; (f)

through

her

legal

Coming within 500 metres of any place at which the mother may live or work; [page 159]

(g) Coming within 500 metres of any place at which the children attend school or any cocurricular or extracurricular activity; (h) Assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother or children, or any member of the mother’s household or family; and (i)

Publishing any matter on social media which would or could reasonably be inferred to relate to these proceedings and/or the mother or children, or any member of the mother’s household or family.

(10) Order (9) above is an order for the personal protection of the mother, and any member of her household or family, pursuant to section 68B of the Family Law Act 1975 (Cth), to which a power of arrest without warrant attaches, pursuant to section 68C of the Family Law Act 1975 (Cth). (11) Either party is entitled to request the supervisor supervising the time the children spend with the father to provide a written report to the mother and the father following the conclusion of that time, at the father’s cost.

In the matter of Stanley and Stanley [2016] FamCA 1130 before Benjamin J the Family Court was yet again faced with the appalling behaviour of a father of M born 1999, C born 2000 and J born 2006. The life the mother and children spent with the father were referred to as a ‘reign of terror’ (at [208]). In opening the proceedings, Benjamin J cited the Victorian Royal Commission into Family Violence, Summary and Recommendations, March 2016, page 1: Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities. Sometimes children who have directly experienced family violence or have been exposed to it go on to be victims or perpetrators of violence in later life, so that the effect of family violence is passed on to the next generation. In addressing the wisdom or otherwise of making an order bringing to an end all communication between parent and child, Benjamin J looked at a line of authority established by the Full Court in Russell and Close (FamCA, joint judgment of Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993, unreported) and more recently referred to in Blinko and Blinko [2015] FamCAFC 146. In Blinko the Full Court looked at the various options open to a court when parental violence is a major issue. In ordering that the father have no contact with the children, his Honour followed the dictates in Blinko in which it was said (at [190]): If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of

the child may require an order prohibiting that parent from spending time or communicating with the child. His Honour brought the proceedings to a close by stating (at [288]–[289]): The mother’s mental health has been damaged by the father’s behaviour and his endeavours to derogate his responsibility in that respect cannot be permitted to stand. [page 160] His violence and abuse of and to his children (of which I have given an outline in these reasons and not detailed fully) are deeply troubling. I had significant regard to the importance of a parent in the lives of children however, with the father the risks are so great that there ought to be the orders sought by the mother and I will so order.

Alan and Eastman [2013] FCCA 174 related to children aged eight and six who suffered psychological harm as a result of exposure to family violence perpetrated not by the father but by the mother’s partner. As a consequence, the father of the children was given wide powers in the day-to-day lives of the children. This included an order that the children live with the father and that he have sole parental responsibility for issues concerning the children’s education, medical needs and psychological needs (at [3]). In relation to the mother and her failure to protect her children, Terry J found (at [158]): [T]he totality of the evidence makes it clear enough that

the children have suffered psychological harm as a result of their exposure to family violence … the children endured prolonged feelings of threat and fear in the mother’s care which impacted on their development, learning and well-being. The mother seemed unable or unwilling to acknowledge the depth of the level of harm which her violent relationship with her partner Mr G caused the children. Terry J accepted the evidence of the family consultant that: The mother has demonstrated some difficulty acknowledging the impact that her mental health and parenting approach has had on the children. Instead, the mother appears to be focused on her own feelings of injustice, rather than demonstrating a capacity to sustain a child focus and separate the children’s needs and experiences from her own. [at [127]] Her Honour showed considerable understanding of the fear and trauma suffered by the children after a particularly terrifying episode of violence perpetrated by Mr G on the mother, children and maternal grandfather and step-grandmother: It is difficult to overstate the sheer horror of this incident. It must have been exceptionally frightening for [X] & [Y]. They heard threats yelled, they heard banging on windows, the house was broken into, they saw their grandfather assaulted and injured and [X] was sent across the road to get help. [The family consultant] observed that an adult who had resources to help them cope with exposure to such an incident would have difficulty forgetting it and these are children. Years and years and years might pass and they might never forget it. It was horrific. [at [36]]

The Family Court is far too often forced to hear matters involving violence and abuse seen as a way of life in some families.

Bocelli and Holland [2016] FamCA 450 before Tree J is such a matter. Although the parties have six older children this matter relates to the youngest child, B born in 2005. Evidence was given that the mother and father started their relationship [page 161] when the mother was 14 and the father 17. The parties had a long history of family violence. Each parent exposed the children to the risk of psychological harm. It was unchallenged that all seven of the children born to the parties have mental health problems. The Family Report writer gave evidence relating to the mental health of the children and was cross-examined on her findings that: The fact that all seven children have been diagnosed with mental disorders is strong support for the premise that the root cause of the children’s mental health issues relate at least as much to family dysfunction as they do to any hereditary factors. [at [15]] This matter is many pages long and tragically complicated by the appalling antics of the parents. One of the causes of the severe damage to the children was the concerted effort by each parent to ‘recruit’ each child to their ‘camp’ (at [57]–[60]). For example, encouraged by his sister Ms L, the child B wrote a letter to the court in which he stated (at [67]): I would like to live with mom because my mom treats me well and I love her very much I obviously love my dad

but sometimes he gets angry over nothing … Sometimes he calls me names like fat lazy f**king c**t, and I don’t like it but he only calls me names like that when he’s real mad. The mother described the letter as a ‘“beautiful thing” for a mother to receive’ (at 70]). In what may have been a matter of some triumph to the father, ultimately it was ordered inter alia that the child B live with him and spend time with the mother. Tree J made it plain that it was impossible to protect B from harm, and that his Honour was ‘practically unable to craft orders which can protect the child from such harm’ (at [2]). The parenting orders included: 5.

It is a condition of the child living with the father that the father does not allow contact between the child and Mr C Holland.

6.

It is a condition of the child spending time with the mother that the mother does not allow contact between the child and Mr D.

7.

The child live with the father.

Keeping in mind the history of these parents and the family generally it is of concern that Tree J did not make an order forbidding the physical punishment of the child B. In relation to the older son Mr C, the father conceded that ‘he was a strong and too strict disciplinarian of Mr C’. This abuse of Mr C was confirmed when in an interview with Ms P the Family Report writer in March 2014 Mr C remembers ‘being flogged’ by the father if he did not eat everything on his plate.

Space does not allow a discussion of the myriad of cases which come before the Family Court on a daily basis bringing

to light the damage caused to children who experience violence and unbearable trauma in their family. At the risk of offending the sensibilities of some readers the authors have decided that there is value in exposing the kinds of crude language used by parents to each other and so often to children. This behaviour and language is imitated by children, to their great detriment. [page 162] When discussing the Family Court it is not unusual to refer to it as ‘a creature of statute’. That being so, it is also important to know that the court must follow a definite pathway when making a decision on any aspect of applications brought before it. In relation to children the pathway is long and, despite the best efforts of the judicial process, does not always elicit the truth of the matter. Nevertheless, in every matter concerning applications relating to children, following the pathway is sacrosanct.

The applicable law when making a parenting order 5.8 The legislative scheme that follows has been repeated in a multitude of matters. In determining parenting matters under Pt VII of the Family Law Act 1975 (Cth) the court must regard the best interests of the child as the paramount consideration: s 60CA. The following extract is from Banks and Banks [2015] FamCAFC 36 at [23]: Given the appeal will be allowed on the basis of a miscarriage

in the conduct of the hearing below, it will be instructive to set out what the Full Court said in Goode and Goode (2006) FLC ¶93-286 at 80,903 concerning the way in which an interim parenting application should be determined: 81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. 82. In an interim case that would involve the following: (a) identifying the competing proposals of the parties; (b) identifying the issues in dispute in the interim hearing; (c) identifying any agreed or uncontested relevant facts; (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place); (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption; (f) if the presumption does apply, deciding whether it is rebutted because application of it would not

be in the child’s best interests; (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable; (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as

[page 163] defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable; (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to

the parties it to be in the best interests of the child.

In Cruden and Sackitt [2013] FamCA 999 the lives of two children, R aged 12 and Y aged six, were marked by sharply deteriorating behaviour, non-attendance at school, and extreme lack of parental guidance or control. Both parents conceded a history of drug and alcohol abuse. In addition, the children were affected by family violence and harsh corporal punishment. Nevertheless, both girls were described as ‘bright and (academically) competent’ (at [128]). Further evidence given in relation to the children was both tragic for the girls and disturbing to the court. According to the report of the family consultant (at [50]): Currently both children are on an alarming trajectory whereby they are heightening their use of maladaptive emotional and behavioural responses. This indicates that there is a heightened likelihood that the children will continue to engage in increasingly anti-social behaviour and increased risk taking activities. In relation to 12-year-old R, it was said (at [86]): The child R has exhibited extreme verbal abuse, thrown a rock at a teacher and sworn in foul language at the Principal. She has made sexually suggestive comments to other students. The week before the hearing commenced R commenced high school at the end of term 4 of primary school. She is about to embark on her high school education with an attitude that nobody can tell her what to do and that she will arc up and retaliate if she does not like the behaviour of others. She is extremely unlikely to succeed at high school unless something changes. Nor was six-year-old Y easier to manage. With reference to an

incident at the school attended by Y, the school principal described how on 22 November 2013, not for the first time, Y’s classroom had to be evacuated. The principal stated (at [113]): … on that day Y refused to obey any direction, she called her teacher a ‘cunt’ and told her to ‘fuck off cunt’, she tried to pull over a bookcase and when asked by a teacher with a sore back not to push against her, Y deliberately shoved that teacher in the back. The class was evacuated to avoid any further exposure to Y’s language and violence. In a matter such as this it is difficult to see how the court can make orders to ameliorate the effects of the former lifestyle and as a consequence the damage [page 164] caused to R and Y. Nevertheless, the court must follow the provisions of Pt VII of the FLA to achieve a result least likely to damage R and Y further. In brief, the findings of Cleary J led to one child living with her father and the older child in the household of her mother. It was obvious to her Honour that it would be difficult for either parent to control both children and to give them much needed individual care and guidance. In making orders, Cleary J imposed restraints on the conduct of the parents. The main injunctive orders were that the mother was restrained from allowing either of the children to be in the presence of their maternal grandfather unless a responsible adult supervisor was present (at [11]) (this injunction related to alleged sexual impropriety by the maternal grandfather to an older half-sister of R and Y); each party was restrained from using illicit drugs (at [12]); each parent was restrained from consuming alcohol at a level which would preclude that parent

from driving if breath tested at any time while the children are in their care and 12 hours prior to that time (at [13]); neither parent was to denigrate nor allow any other person to denigrate the other parent in the presence or hearing of the children (at [14]); and both parties were restrained from physically disciplining the children or allowing any other person to do so (at [15]).

In Niem and Tong [2016] FamCA 1089 before Foster J the mother and father each accused the other of greater physical punishment of their children, B born 2001, C born 2005 and D born 2010. Both, however, admitted to hitting the children with a bamboo rod. There was little or no communication in relation to the parenting of the children and the parties were deeply critical of the state of mental health of the other. If the children were not involved in this chaotic relationship and bearing the brunt of their parents’ violence towards them there would be a temptation to be amused by the following observations. The family consultant detailed the following (at [97]): [Ms Niem] said that [Mr Tong] suffers with a ‘narcissistic personality’ and that this view is even held by his psychologist, [Mr BB]. [Mr Tong] claimed that he has made significant changes and that [Mr BB] is pleased with his progress. [Mr Tong] said he believes that [Ms Niem] suffers with ‘narcissistic personality disorder’. He claimed he has observed the following behaviours in her which would constitute this disorder: ‘blame shifting’, ‘gaslighting’ ‘triangulating’ ‘projection’ and ‘always the victim’. He said she had never been formally diagnosed with this condition. Foster J was unimpressed by both parents, stating (at [106]):

Both parents have demonstrated little capacity to meet the children’s emotional needs, prioritising their own interests and conflict over the children’s needs and in so doing demonstrating less than appropriate attitudes to their responsibilities as parents and to the children. In evaluating the children the family consultant could not find any parental trust or respect. She was concerned the mental wellbeing of the children may be endangered if they are subject to ongoing exposure to parental conflict (at [98]). [page 165] Concerns were also expressed as to both parents’ physical discipline of the children with a ‘rod like implement’ (at [99]). In relation to the use of physical punishment Foster J ordered that: Both parties should, by reason of the concerns expressed by the family consultant, be restrained from physically disciplining the children. [at [111]] For further examples of violence coupled with crude and grossly inappropriate language directed by parents to each other and to children, see Laudner and Doran [2012] FamCA 452 at [6]; Landin and Eades [2013] FCCA 1276 at [28], [35], [38], [97]; Jayce and Carter [2013] FamCA 52 at [122]–[124]; Baglio and Baglio [2013] FamCA 105 at [78]; Gilmore and Ray [2013] FamCA 153 at [6]; Fairfax and Maguire [2013] FamCA 174 at [40]; Markham and Markham [2013] FamCA 212 at [85]; Ibrahim and Templeman [2013] FamCA 340 at [61]; Seaward and MacDuff [2013] FamCA 485 at [202], [206]; Neil and Radford [2013] FamCA 588 at [85]; Khoo and Pride [2013] FamCA 929 at [85]; Radley and Radley [2013] FamCA 346 at [46], [93]; Merrett and Bass [2013] FMCAfam 263 at [160]–[163]; Wentworth and Wentworth [2013] FamCA 156 at [115]; Aaron and Robinson

[2013] FMCAfam 41 at [61], [114]; Grinnyway and Looper [2013] FamCA 1018 at [78]; Danes and Kennedy [2014] FCCA 497 at [58], [59], [61]; Ravice and Hillon [2014] FamCA 2 at [107]; Fern and Lumsden [2014] FamCA 7 at [104], [120]; O’Boyle and Salt [2014] FamCA 132 at [114]. For a detailed discussion of the corrosive impact of family violence on children, see K Richards, Children’s Exposure to Domestic Violence in Australia, Australian Government and Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice Issue no 9, June 2011.

Objectives and principles of Pt VII of the FLA 5.9 The key principles enumerated are enjoined by the more substantive provisions contained in Pt VII. Together they demonstrate a considerable shift in emphasis from parental rights to continuing parental responsibility postseparation, and a greater recognition of the rights of the child. Section 60B sets out the objects of Pt VII of the FLA and the principles underlying its objects (refer to the FLA).

Part VII in practice Where parents agree — private agreements, parenting plans, consent orders 5.10 Section 63B of the FLA indicates that parents are encouraged to make agreements in relation to matters concerning their children rather than seeking a judicial response. The section expressly states that parents are encouraged to reach informal agreement between themselves

about matters concerning their children and to take personal responsibility for their parenting arrangements and resolving conflict between them. Indeed, the provisions of s 63B expressly encourage parents to see the legal system as a last resort and for the best interests of the child to be their paramount consideration. In doing so, the parties must consider the child’s best interests as the paramount consideration: ss 60CA and 63B(e). [page 166] There are many parents who can reach an agreement without animosity or the assistance of family dispute resolution practitioners or the courts. In these circumstances the parents come to a mutual agreement. Where the parents, however, struggle to come to a mutual agreement concerning the future of their children they may seek the assistance of a family dispute resolution practitioner to assist them in developing a parenting plan. Parenting plans and the obligation of legal advisers 5.11 Section 63DA of the FLA sets out the obligations of advisers (that is, legal practitioners, family counsellors, family dispute resolution practitioners and family consultants: s 63DA(5)) when giving advice to people in relation to parenting plans. It places an obligation on advisers to inform parents that they could consider entering into a parenting plan and of the services available where they can get further assistance to develop a plan. Section 63DA(2) sets out the obligations that advisers must meet when advising

people about the making of a parenting plan. Paragraph 63DA(2)(a) places an obligation on advisers to inform people that, where it is in the best interests of the child and reasonably practicable, they could consider as an option an arrangement where they equally share the time spent with the child. Paragraph 63DA(2)(b) places an obligation on advisers to inform people that if an equal time arrangement is not appropriate, they could consider whether an arrangement where the child spends substantial and significant time with each person would be in the best interests of the child and reasonably practicable. Paragraph 63DA(2)(c) emphasises that decisions made by parties in developing parenting plans should be made in the best interests of the child. Paragraph 63DA(2)(d) requires that advisers inform them of the matters that may be dealt with in a parenting plan in accordance with s 63C(2). Paragraphs 63DA(2)(e) and (h) ensure that advisers explain the interaction between parenting plans and parenting orders. Paragraph 63DA(2)(e) requires advisers to inform their clients that an existing parenting order may be subject to a parenting plan that they subsequently enter into. Paragraph 63DA(2)(f) requires advisers to inform their clients that it is desirable to include, in a parenting plan, provisions of the kind referred to in paras 63C(2)(d), (g) and (h). The intention of these paragraphs is to help people avoid having to take parenting matters to court by ensuring that, when making a plan, they consider how they will consult with one another, resolve disputes and make changes to the plan as their child grows older and their needs change. Paragraph 63DA(2)(g) requires advisers to explain to their clients what programs are available to help people who experience difficulties in complying with parenting plans. The

note at the end of s 63DA(2) makes clear that an adviser must only inform people that they could consider the options of the child spending equal time and substantial and significant time with each person. It does not require the adviser to provide legal advice as to whether such arrangements are practicable or in the best interests of the child. The adviser, however, may provide advice if that is appropriate. Parenting plans registered before 2003 are still valid: s 63DB. They can only be varied by court order and cannot be revoked except by registration of revocation. Note that here we speak of plans already registered. New plans are not registered. [page 167] Parenting plans made after 2003 are not registered and not enforceable, with the exception of child support plans, if they meet the criteria for a child support agreement. Orders made after 1 July 2006 are taken to mean orders that are subject to future parenting plans. A parenting plan entered into subsequent to a court order will render the prior orders unenforceable, unless there is a court order to the contrary: s 64D. Meaning of ‘parenting plan’ and related terms 5.12 An agreement must be entered into, free from any threat, duress or coercion. Section 63C sets out what is necessary to constitute a ‘parenting plan’. The agreement must:

be in writing (s 63C(1)(a)); be made between the parents of the child (s 63C(1)(b)); be signed and dated by each of the parties (s 63C(1)(ba) and (bb)); and deal with (but is not limited to): – 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 (s 63C(2A) expressly notes that this allocation of responsibility may be made in favour of a parent, or any other person, including a grandparent); – 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 (s 63C(2B) expressly notes that the plan may deal with responsibility for making decisions about major long-term issues); – the communication a child is to have with another person or other persons; – maintenance of a child (unless, where the Child Support Assessment Act 1989 (Cth) applies, the provisions in the plan are a child support agreement); – the process to be used for resolving disputes about the terms or operation of the plan; – the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;

–

any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Consent orders 5.13 Consent orders are made under r 10.15 of the Family Law Rules and are orders that are drafted by the parties and filed with the court giving them the same effect as if they had been made by the court itself. The appropriate courts to [page 168] file applications for consent orders and minutes of consent are the Family Court of Australia, Family Court of Western Australia or the Magistrates Court within each state and territory (pursuant to cross-vesting). While the court, in making the order by consent, is to have regard to the child’s best interests as the paramount consideration, the court is not required to consider the s 60CC factors. The main benefit of consent orders, unlike parenting plans, is that they have the force of court orders and, if a contravention occurs, the aggrieved parent can make an application in respect of the contravention. No such recourse would be available for a contravention of a parenting plan.

Where parents disagree — parenting orders from the Family Court, Federal Circuit Court, Family Court of Western Australia

The first step: attendance upon a family dispute resolution practitioner 5.14 Section 65F of the FLA contains a general requirement for counselling before final parenting orders are made, but the court is able to dispense with this requirement if it is satisfied that an urgent parenting order is required or if special circumstances (for example, family violence) exist which make it appropriate to make the order without requiring the parties to attend counselling. Section 60I requires that any person with a dispute in respect of a child must in the first instance attend upon a family dispute resolution practitioner. The purpose as stated above is for the parents to attempt to come to an agreement in respect of the child. This must be complied with prior to filing an application for a parenting order unless one of the exemptions applies. Section 60I(8) requires the family dispute resolution practitioner to provide the parties with a certificate. Refer to the section to determine what types of certificates are issued; refer also to Graft and McCormick [2014] FamCAFC 28. Exemptions to the requirement to file a s 60I(9) certificate are contained within s 60I(9). Refer to the section and Dalton and Rudov [2014] FamCA 164. The second step: filing the application 5.15 Pursuant to s 65D(1) of the FLA, the court has the power to make such parenting orders as it thinks proper. A parenting order may deal with one or more of the following: 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; parentage; specific issues such as medical procedures, education, religion, relocation, travel interstate or overseas, change of a child’s name, passport applications. [page 169] Where parents cannot agree about the issues that relate to their children an initiating application can be filed with either the Family Court of Australia, Federal Circuit Court of Australia, the Family Court of Western Australia and with state Magistrates Courts (it should be noted, however, where agreement cannot be reached at the first hearing in a state Magistrates Court, the matter must be transferred to the appropriate federal court). Applications for parenting orders may be made by either parent, the child or any other person concerned with the child’s care, welfare or development: s 65C. Who can apply for parenting orders?

5.16 In the ordinary course of events it is the parents who apply for a parenting order but in fact any person concerned with the care, welfare and development of a child can make an application to the court. Section 65C of the FLA states: A parenting order in relation to a child may be applied for by: (a) either or both of the child’s parents; or (b) the child; or (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child.

Those applicants who do not meet the criteria above do not have an automatic right to see or take part in the life of a child if the parents do not permit it. When making a parenting application to the Family Court it is necessary to have ‘standing’ (locus standi), which is the capacity of a party to bring a matter for adjudication before a court of relevant jurisdiction with an expectation of being heard.

The Full Court of the Family Court, in the matter of Mankiewicz and Swallow [2016] FamCAFC 153, dismissed an appeal by the maternal great-grandparents against a decision of Watts J in 2014 to dismiss their application to spend time with their four great-grandchildren, aged 16, 14, 10 and seven years. Watts J observed that there had been previous proceedings between the appellants, the maternal grandfather Mr Bemert and the children’s parents and in which identical orders were sought by the appellants. The parents of the children were totally opposed to any orders that the children spend time with either the great grandparents or Mr Bemert. The trial judge dismissed the great-grandparents’ application to

spend time with their great-grandchildren on the basis that they lacked standing under s 65C and there had not been a material change in circumstances since a summary dismissal of an application on very similar grounds in 2009. His Honour found, on the court’s own motion, that the application was an abuse of process as the great-grandparents were acting in concert with their son (the maternal grandfather). Their son had been declared a vexatious litigant in a number of applications made to various courts. The great-grandparents appealed, claiming that the trial judge had incorrectly taken notice of other proceedings, incorrectly declared them to be vexatious litigants and wrongly found that they were acting in concert with their son. [page 170] The Full Court of the Family Court found that it was open to the trial judge to take into account prior proceedings to which the applicants were initiating parties and the trial judge was at liberty to make the finding that the great-grandparents were vexatious litigants. By a majority judgment, Ryan and Austin JJ upheld the decision of Watts J saying (at [2]): The vexatious proceedings order was made pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (‘the Act’) and of the Court’s own motion (albeit at the suggestion of the respondents); on the basis that the appellants acted in concert with a person (their son) who has frequently instituted vexatious proceedings in Australian courts. The effect of the vexatious proceedings order is that the appellants can only institute proceedings for a parenting order in relation to these children with the leave of the Court.

The effect of the vexatious proceedings order is that the appellants can only institute proceedings for a parenting order in relation to these children with the leave of the court. In the words of the majority (at [10]): The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.

Who is a parent? 5.17 A threshold issue that emerges in relation to parental responsibility is: who is a parent? The term ‘parent’ is not exhaustively defined in the FLA. There is a partial definition in s 4, which provides that ‘parent’ includes adoptive parents. Apart from the situation of adoptive parents, it seems that the general rule is that parent refers to biological parents. Thus, step-parents are for most circumstances not

regarded as parents, although as we shall discover in the following chapter they may be obliged to maintain children. Section 69P of the FLA deals with presumptions of parentage and provides that if a child is born to a woman while she is married, the husband is presumed to be the father of the child. Sections 69Q and 69R provide a similar presumption in relation to men who have cohabited with women or men whose names are entered as a parent of a child in a register of births. These presumptions are rebuttable by proof on the balance of probabilities: s 69U. Where parentage is an issue, the Family Court can order that parties undergo parentage testing: ss 69V–69ZA. Parentage testing will not be ordered merely because a party requests it. Testing is only appropriate where an applicant has an honest, bona fide and reasonable belief as to doubt [page 171] about the assumed status quo regarding parentage: Marriage of F and R (1992) 15 Fam LR 533; FLC ¶92-300. Where a party refuses to undergo parental testing, the court may draw an inference contrary to that party’s interests: G v H (1994) 18 Fam LR 180; 181 CLR 387. In the matter following the Family Court refused to make an order for parentage testing in circumstances showing that such testing had been carried out previously. The test on that occasion gave the respondent a relative chance of paternity of 99.998 per cent. An added factor, however, was the evidence that the mother of the child had a sexual relationship with the father’s father.

In Withers and Bates [2011] FMCAfam 730 a respondent to a parenting application applied for a declaration under s 107 of the Child Support (Assessment) Act 1989 (Cth) that he was not liable for child support as he was not the child’s father, and also sought an order for parentage testing — an issue which had been dealt with in 2003. Roberts FM dismissed the respondent’s application, saying (at [35]): Mr Bates instituted proceedings in 2003 at a time when he said that the issue of paternity of the child was of concern to him. He referred then to his doubts about the paternity of the child and to the fact that his father had been involved in a sexual relationship with the child’s mother. He organised DNA testing which showed that his relative chance of paternity was 99.998%, and he was told in the report of that testing that a close blood relative could have a similar chance of paternity. He chose to discontinue those proceedings and a little more than a year later he was the applicant in proceedings for parenting orders in which he and his solicitor signed documents which identified him as the child’s father. In my view, subject only to what I say below about the paramountcy principle, he cannot now raise an issue that he was fully aware of in 2003/04 and chose not to pursue at that time.

5.18 Emerging reproductive technologies have broadened the circumstances in which children can be born. The ‘parental’ status of people who are involved in or affected by such technologies is partially dealt with by s 60H of the FLA, which provides: Children born as a result of artificial conception procedures

(1) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and (b) either: (i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or (ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

[page 172] then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act: (c) the child is the child of the woman and of the other intended parent; and (d) if a person other than the woman and the other intended parent provided genetic material — the child is not the child of that person. (2) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and (b) under a prescribed law of the Commonwealth or of a

State or Territory, the child is a child of the woman; then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act. (3) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and (b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man; then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act. (5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

In the matter of Clarence and Crisp [2016] FamCAFC 157 the Full Court of the Family Court before Thackray, Ainslie-Wallace and Aldridge JJ heard an appeal against the finding of Berman J in Crisp and Clarence [2015] FamCA 964 in which Ms Crisp was identified as the legal parent of a child P conceived through an artificial conception procedure performed on 11 July 2011. His Honour, inter alia, made the following orders: (1) That the applicant (egg donor) be declared a parent of the child. (2) That the parties have equal shared parental responsibility. (3) That the child live with the applicant on specific occasions. (4) Various specific issues orders. (5) That the child’s birth certificate be amended to include the applicant as a named parent.

The birth mother appealed these orders. The matter before the Full Court involved an appeal against a finding by the primary judge that the parties were in a de facto relationship at the time the child, who was the subject of parenting proceedings, was conceived. The finding was made in circumstances where the appellant was the birth mother of the child but the child [page 173] was conceived using the respondent’s egg. The critical consequence of the finding was that the respondent was a parent of the child pursuant to the Family Law Act 1975 (Cth) and was therefore treated as a parent for the purposes of s 60CC of the Act. Before the primary judge both parties conceded that they commenced a de facto relationship in 2004. However, they were in dispute as to whether the relationship continued at the date of the child’s conception in July 2011. The appellant’s position was that the relationship ended in March 2011 when the respondent left the home that they had been living in together, although she conceded that the parties remained in a ‘friendly relationship’. The respondent’s case was that the de facto relationship continued and that although she moved out of the home, she continued to spend four or five nights a week there until August 2011. Relevantly, s 4AA(1) provides that: A person is in a de facto relationship with another person if: … (c) having regard to all the circumstances of their relationship, they have a relationship as a couple

living together on a genuine domestic basis. Section 4AA(2) then provides for circumstances that may indicate the existence of a de facto relationship. On appeal the Full Court considered two key grounds raised by the appellant. In discussing the first ground, the Full Court considered whether the primary judge erred because he had regard to dicta from previously decided cases which looked at the test for a ‘marital’ separation rather than whether a ‘de facto’ relationship existed. The Full Court recognised that the questions posed by the legislation are different: s 48(2) of the Act requires the consideration of whether a couple has ‘lived separately and apart’ for more than a year to establish a ground for divorce, whereas s 44(5) asks whether a de facto relationship has come to an ‘end’. The Full Court, however, did not accept that the primary judge’s reference to such cases amounted to an appealable error. By the second ground of appeal, the appellant asserted that the primary judge erred in fact in his finding that a de facto relationship existed at the date of conception. The Full Court made a number of important points in rejecting the appellant’s submissions made in support of this ground. First, the Full Court rejected the submission that a higher threshold should be applied to the determination of whether a de facto relationship exists in parenting rather than financial proceedings. The Full Court said (at [37]): … the decision as to whether a de facto relationship exists could not differ on the same set of facts depending upon whether the dispute was about money or children. Once that proposition is accepted, we consider it follows that the test and its application must be consistent across all types of dispute. In our view, the best interests of the child cannot determine the status of the relationship between the adults involved. Other

sections of the Act, in particular s 60CC, come into play to ensure that the substantive orders are in accordance with the child’s best interests. Second, the Full Court said, relying on s 13(2)(d) of the Acts Interpretation Act 1901 (Cth), that the heading preceding s 4AA(2) does not form part of the Act [page 174] and cannot be relied upon to support an argument that s 4AA(2) is confined to determining whether the parties were ‘a couple’. Their Honours held that s 4AA(2) instead goes to the composite expression ‘have a relationship as a couple living together on a genuine domestic basis’ (at [40]). Third, the Full Court considered the submission that parties had ceased living together at the date of conception and therefore did not have a ‘relationship as a couple living together’. In rejecting this submission the Full Court first said (at [42]): … this submission runs counter to Jonah and White (2012) FLC ¶93-522, where this court held that a de facto relationship could exist even if the parties lived together for ‘limited periods’, and that the focus should be on ‘the nature and quality of the asserted relationship rather than a quantification of time spent together’ … The Full Court went on to say (at [51]–[52]): Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]: … a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist.

Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place — ie by reference to the indicia laid down in the legislation. Indeed, in the present case it is not appropriate to conceptualise the question as being whether the relationship ended when the respondent left the home but rather whether it subsisted on the date [the child] was conceived. [bold emphasis in original] The Full Court ultimately found the primary judge had made no appealable error and dismissed the appeal.

5.19 There were four parties in the matter following: the biological mother, the female partner, the biological father and his same-sex partner.

Wilson and Roberts [2010] FamCA 734 before Dessau J concerned a two-year-old child’s biological mother and her female partner’s opposition to the wish of the biological father and his male partner to spend substantial time with the child. Dessau J said this of the court’s approach (at [8]): Although much of what I need to consider as to E’s best interests is common to all children, to ignore the circumstances surrounding his conception and family constellation would risk an over-simplification of complex relationships, dynamics and arrangements. Complexities are not unique to single sex couples, but particular issues as to the arrangements, the negotiations, the expectations, and the legal framework for his care were all played out graphically in this case. Much of the evidence revolved around whether there

was or was not a compact between the adults to fully and equally co-parent the baby. [page 175] Dessau J discussed the meaning of ‘parent’ for the purpose of the case, concluding as follows [at [40]): The provisions of the new section [s 60H] are clear. Ms Roberts and her de facto partner Ms Boston, having consented to the carrying out of an artificial conception procedure, are E’s parents. To remove any doubt, s 60H(1)(d) [of the Family Law Act] provides that if any other person provides genetic material, the child is not the child of that person. Accordingly, Mr Wilson is not deemed to be a parent. It follows, that Mr Farmer is also not E’s ‘parent’. The court then proceeded to discuss the court’s approach to an application for parenting orders by a non-parent. After consideration of the evidence in the case, Dessau J concluded as follows: The evidence satisfies me that the four of them did, contrary to the women’s accounts, set out with a shared decision, as two couples, to create and contribute to the raising of a much-wanted and much-loved child. Although events did not unfold in that idealised way, I am not satisfied that the men’s behaviour, the conflict, or the impact on E was as dire as the women have said [at [325]]. Not surprisingly, none of the adults were prepared for the flood of emotions occasioned by E’s birth. The emotions, the yearning to share and spend time with him, and the allocation of responsibilities were spread in four directions, not just in two. I am satisfied that the

women were grappling with the balance of power between them in their own household. I am satisfied that it was difficult for them individually and together to adjust to parenthood, and it was difficult for the men to do so in the circumstances where there was little clarity as to their respective roles [at [327]]. This case is not about the socio-politics of single-sex parents, nor the definition of a nuclear family. This court deals with a full spectrum of families: parents who have lived together as a unit with children for many years, parents who have met only briefly but through happenstance have parented a child together, heterosexual parents, homosexual parents, parents who have changed gender, parents from a wide range of cultures, and for example, in some medical procedure and other cases, parents who are firmly united in what they seek from the court. It is always the particular child and his or her particular needs that must be at the centre of a decision [at [330]]. E is the product of a number of fine people. He is entitled to know about them, to know them, and to know their love of him. … Each can contribute something important to him. To choose the course proposed by the women, that they raise him within what they refer to as ‘a nuclear family’, that is without knowing the men (until, maybe, some nebulous time in the future) precludes him from knowing and enjoying what is rightfully his [at [331]]. Of course, intense conflict around time with the men could render it contrary to E’s best interests. However, my finding is that the mothers have not represented the level of conflict truly. I am also conscious of Mr P’s evidence about conflict … and also the steps I can take to limit the need for communication and resultant

conflict. Fortunately, Mr Farmer and Ms Boston seem a little less intense than their partners, and more capable of calm inter-action [at [332]]. I have given careful consideration to the impact on E of a decision contrary to his mothers’ wishes. I am satisfied that Ms Roberts, the parent whose mental health has been more of a concern, will cope, particularly with the certainty around parental responsibility, recognition of the women’s role, and the capacity to travel as she perceives her career dictates [at [333]]. Equality is simply untenable. It is frequently difficult enough between two adults. It certainly has not worked across the four adults in any practical manner. I am satisfied [page 176] that the efforts to create that equality, the fact that it did not work, and the enormous angst generated by all the on-going endeavours to make it work, has ironically brought things undone [at [334]]. The reality for E is that his mothers are his primary attachment figures. It flows logically for him that they should be responsible for making the important decisions about him. And I am satisfied that they need support in their primary parenting, and the court’s imprimatur to make the decisions on E’s behalf [at [335]]. I am satisfied that E should have the benefit of the men’s loving involvement in his life, and that it should be a meaningful relationship. I am not satisfied however that it should be at a level, time-wise, whereby the women would inevitably feel that their family unit is severely compromised, nor should their freedom of movement be

so restricted that they cannot relocate for the purposes of Ms Roberts’ overseas work [at [336]]. Dessau J said this as to the time the child should spend with the men (at [338]): I am satisfied that his needs will be met if by the time he starts school, he is spending each third week-end with the men from Friday afternoon until Sunday evening. In the term school holidays he should by then spend four nights with the men, one week in the summer holidays at the end of his prep year and thereafter two weeks in each summer holidays. That in my view will strike the balance between minimising the leisure time he experiences away from his mothers and maximising the opportunity he has to know and enjoy the men’s involvement in his life.

The case following concerns a child born of an artificial conception procedure. The question for the court, however, was not the status of the sperm donor under the FLA, but whether a parenting order should be made in favour of the former same-sex partner of the biological mother.

Aldridge and Keaton [2009] FamCAFC 229; (2009) FLC ¶93-421; 42 Fam LR 369 concerned a matter in the Full Court of the Family Court before Bryant CJ, Boland and Crisford JJ. This was an appeal from orders of Pascoe CFM. His Honour determined that Ms Keaton, a person concerned with the care, welfare and development of the child, should be permitted to spend time with Ms Aldridge’s child. Ms Aldridge and Ms Keaton were previously in a relationship, but Pascoe CFM found that the parties were not in a de facto relationship at the time the child

was conceived (as the result of an artificial conception procedure). By virtue of s 60H of the FLA, this precluded Ms Aldridge’s child being treated as the child of Ms Keaton. Pascoe CFM ordered that Ms Aldridge have sole parental responsibility for the child and that Ms Keaton be able to spend time with the child for short periods each week, culminating in an overnight stay each alternate weekend. Ms Aldridge appealed the orders allowing for time to be spent between the child and Ms Keaton. Ms Aldridge argued that Pascoe CFM had erred in law by not first determining whether Ms Keaton was a person involved with the care, welfare and or development of the child and then determining whether a parenting order should be made at all. Ms Aldridge also argued that Pascoe CFM erred in law by considering [page 177] whether the child’s relationship with Ms Keaton would be of benefit to the child. It was also part of Ms Aldridge’s argument that Ms Keaton should not have been treated as a parent for the purposes of his Honour’s determination as to what was in the best interests of the child. Ms Aldridge also submitted that s 65C of the FLA prescribed a ‘hierarchy’ of applicants (parents, then grandparents, then persons concerned with the care, welfare and development of a child) for which applications ‘lower down’ the hierarchy should receive lesser or no weight compared to those ‘higher up’. The Full Court dismissed the appeal. The Full Court determined that in dealing with any parenting application by a person interested in the care, welfare and development of a child, a court will determine that application applying the relevant provisions of Pt VII of the FLA to determine whether making (or not making) a parenting order would be in a child’s best

interests. The Full Court determined that such an application must be determined by reference to: the best interests of the child as a paramount consideration (s 60CA); the objects and principles of Pt VII of the FLA (s 60B(1) and (2)); and consideration of relevant matters under s 60CC(2) and (3) (the primary and additional considerations in determining the best interests of children). The Full Court stated that there is no prescribed order in which the relevant provisions of Pt VII of the FLA must be considered, or that any particular weight or priority be given to any provision in Pt VII (subject to the importance being placed on the primary considerations in s 60CC(2), which may be outweighed by one or more of the additional considerations in s 60CC(3)). The Full Court commented that the best interests of the child are the paramount consideration to be taken into account, not the circumstance of their conception or the sex of their parents. The Full Court considered that parliament intended through its amendment to s 60H of the FLA that children of a biological parent and a biological parent’s partner (including a same-sex co-parent), regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting as biological children born to men and women who have never been legally married, living in a de facto relationship or who had never lived together. The Full Court suggested that it may be necessary for further legislative amendment to clarify a non-biological person’s status as a parent for the purposes of relevant sections of the Act. As to who may apply for a parenting order, s 65C provides: A parenting order in relation to a child may be applied for by: (a) either or both of the child’s parents; or (b) the child; or (ba) a grandparent of the child; or

(c) any other person concerned with the care, welfare or development of the child. The Full Court concluded that Pascoe CFM had correctly determined that Ms Keaton was a person interested in the care, welfare or development of the child and then made a parenting order that was in the child’s best interests. While acknowledging the importance and emphasis placed in the Act on the relationship between a child and his or her parents, the Full Court rejected the notion that there should be a more cautious approach taken to a parenting application where a party is not a parent or grandparent, or that a hierarchy was prescribed to applications by different types of parties.

[page 178]

Simpson and Brockman (2010) 43 Fam LR 32; [2010] FamCAFC 37 concerned a matter before the Full Court of the Family Court of Australia before Coleman, Warnick and May JJ. This was an appeal from orders of Jarrett FM. Ms Simpson and Ms Brockman were in a relationship. With the assistance of a sperm donor and in-vitro fertilisation (IVF), each woman had biologically had a child during the course of their relationship. Jarrett FM ordered that each of the children would primarily reside with its biological mother in Sydney and northern New South Wales respectively and spend some time in the household of the other child and that child’s mother. Ms Simpson appealed on the grounds that Jarret FM had found that she was not the parent of the child to whom she did not give birth. Ms Simpson submitted that he should have done so, which meant that the legislative pathway set out in Pt VII of the FLA with respect to parents would then have been followed. Ms

Simpson also argued that a change in the law (s 60H — children born as a result of artificial conception procedures) since Jarrett FM’s orders were made, but before the appeal had been heard, meant that she was now the parent of the child to whom she did not give birth. Ms Simpson relied upon the fact that an appeal to the Full Court is an appeal by way of a rehearing and that the correctness of Jarrett FM’s judgment had to be considered in light of the law at the time the appeal was heard. The Full Court dismissed the appeal. The Full Court considered several decisions from the following courts: the High Court of Australia; the Full Court of the Federal Court of Australia; and the Full Court of the Family Court. The Full Court determined that an appeal will only succeed if error is found in the making of the orders appealed. This involves the application of the law as it stood at the time the orders were made. The Full Court considered that unless operation of a subsequent law is retrospective, application of the law at the time an appeal is determined only becomes appropriate if the appellate court, after finding error, substitutes its decision for the one appealed (a re-determination or reexercise of a trial judge’s discretion). While acknowledging that if a fresh application was filed before the court at first instance Ms Simpson would be a parent for the purposes of Pt VII of the FLA, the Full Court concluded that at the time that Jarrett FM’s orders were made, Ms Simpson was legally not a parent of the child to whom she did not give birth. The Full Court also concluded that the provisions which specifically make reference to ‘parents’ in Pt VII of the FLA should not be applied to ‘non-parents’. The Full Court did not accept Ms Simpson’s proposition that persons other than biological parents need to be treated as parents because the provisions of Pt VII of the FLA are unworkable or deficient in certain circumstances. Ms Simpson had hoped to succeed in her application to be

declared a parent on the basis of an amended s 60H of the FLA which in effect provides that a person is recognised as the parent of a child where: the child is born as the result of an assisted conception procedure (this includes IVF, donor insemination or home insemination); the parents were in a de facto relationship; and the parents consented to the procedure at the time of conception.

[page 179]

In Yanders and Jacklin [2011] FMCAfam 57 the non-biological parent of a child born during a same-sex relationship was granted orders to spend time with the child. The applicant and respondent were in a de facto relationship when a child was born to the respondent Ms Jackson in 2005. The applicant maintained that the pregnancy was planned, while the respondent maintains it was as a result of a one-off sexual encounter. The case contains a review by Turner FM of the law governing parenting orders, who may apply for them, Pt VII principles, whether the applicant was a parent of the child (and, if not, whether she was a person concerned with the care, welfare and development of the child) and the issues relating to a nonparent’s application for a parenting order. Turner FM concluded as follows (at [290]–[297]): This hearing was a difficult one, not only because of the complexity of facts, but the large number of issues

brought before the court, most of which deflected from rather than reflected on the relevant matters requiring findings by the court in determining what is in the best interests of [X]. Further, it was evident that the respondent is unrelenting in her distrust and dismissive attitude towards the applicant, seeing no merit or basis whatsoever in her application, and insistent that any relationship by the applicant with [X] will not be of any benefit on any level to the child. Mr E summarises the respondent’s presentation at [35] of the report: She (the respondent) presents as being overall, begrudgingly cooperative with the report process in that, while she is prepared to be led through the interviews and to respond to the questions about pivotal issues and events, she almost palpably bristles and exudes resentment at scrutiny of her and is markedly more relaxed and less defensive when focussing on Ms Yanders. Ms Jacklin is very clear that she sees no basis for the Court matter and ancillary processes such as the report, based on her belief that Ms Yanders has no legitimate reason to present herself as being a parent or parent-figure in [X]’s life.

The only time the respondent let down her guard from her steely resolve was when questioned by the Independent Children’s Lawyer as to whether she would abide by court orders granting time with the child to the applicant, and what she would do to put them in place. The respondent gave evidence that she will abide by the orders and put the necessary arrangements in place, and I accept this evidence. I have no doubt the respondent loves [X] and wants what’s best for [X]. But her coldness towards the applicant and her complete lack of acknowledgment of the involvement of the applicant in the first four years of [X]’s life, begs the

question as to just how child focussed the respondent is. Further to hint that perhaps her current partner, with whom the respondent is not residing, may adopt [X], shows a level of immaturity in the respondent when it comes to adult relationships and the impact it may have on [X].

In relation to the question as to how the court will treat a fact situation where same-sex de facto partners each have biological children, see Gottspiel and Rufus [2009] FamCA 512 and Halifax and Fabian [2009] FMCAfam 972 at [34]– [35]. [page 180]

Important role played by grandparents 5.20 Grandparents play an essential role in children’s lives but can feel cut off and helpless when families separate. Many have responsibility for caring for their grandchildren when the parents are unable to do so. The FLA recognises the important part that grandparents can play in the lives of children disrupted by the breakdown of their parents’ relationship. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) amended various sections of the FLA in relation to parenting orders, and made explicit

reference to grandparents. Grandparents are included with other relatives as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development and if that is the case and it is in the best interests of the child, then the child has the right to see that grandparent. A difficulty arises, however, as in Penn and Haughton when the parents’ relationship is still on foot and they are adamant that their children will have no contact with the grandparent. The following cases are but a few of the increasing applications for parenting orders involving grandparents.

In Penn and Haughton [2013] FCCA 1941 before Lapthorn J the paternal grandmother with whom the children had had no contact since mid-2010 made an application to spend time with her grandchildren X, who is five, and Y, four. The half-brother of the children, Z aged 16, lived with the paternal grandmother and had a fractured relationship with his father. In answer to the grandmother’s application to see the children, the parents sought a summary dismissal. In dismissing the application of the grandmother, Lapthorn J stated (at [34]): When I weigh up: the fact that the children do not have a relationship with their grandmother; the extent of the parents’ opposition to starting such a relationship; their joint exercise of parental responsibility in not wanting the children to have that relationship; and the potential for ongoing conflict; with the potential benefit to the children of developing a relationship with the grandmother and extended paternal family; and the benefit to them of having a fuller understanding of their identity, I am satisfied that the former significantly outweighs the latter.

Danes and Danes [2013] FMCAfam 281 is yet a further example of the fraught manner in which some children are forced to live. The matter concerned an application by a grandmother for a parenting order in relation to her grandchildren, [X] born in 2007 and [Y] born in 2009. In that application the applicant grandmother sought orders that in summary provided for the children to live with her, that she and the mother and father of the children have joint parental responsibility and that the children spend time with the mother and father as agreed between the parties. The application of the grandmother for a parenting order was dismissed but the court did make an order that, with the agreement of the mother and father, she be allowed to spend time and [page 181] communicate with the children. The welfare of the children received attention with an order restraining the parents from: … subjecting the children to any form of hitting or physical striking and they shall use their best endeavours to ensure that no other person does so. [at [3] Orders] In addition the parents were ordered to abstain from drugs and alcohol for 12 hours before contact with the children.

Sheldon and Abraham (No 2) [2013] FCCA 2167 before Monahan J illustrates the manner in which many grandparents take on the main parenting tasks for their grandchildren. This matter

concerned a child of three years whose mother was deceased and whose father was in prison. The paternal grandparents were given equal shared parental responsibility for the child. The question to be decided by the court was how much time should the maternal grandmother be given with the child and whether her partner should be present. The reason why a decision had to be reached in relation to Mr B became plain when Monahan J stated (at [95]): In this case there is no evidence that X has been abused by anyone; that would include Mr B. In contrast, there is disturbing historical evidence that the maternal grandmother’s own children, including X’s mother, were sexually abused growing up in their own home. Evidence was also given that the maternal grandmother had considerable interaction with the Department of Family and Community Services when bringing up her own children. The orders made in relation to the maternal grandmother make interesting reading. His Honour ordered: (12) The Maternal Grandmother shall do all things that are necessary and reasonable to ensure that no person is present at the Maternal Grandmother’s residence at times when the Child is at the Maternal Grandmother’s residence, excepting lineal descendants of the Maternal Grandmother (but not excepting the Child’s Uncle Z), partners of lineal descendants of the Maternal Grandmother and the Maternal Grandmother’s Mother, hereinafter respectively referred to as an ‘Included Person’. (13) The Maternal Grandmother shall not leave the Child in the care of another person and shall ensure that the Child is in the care of the Maternal Grandmother at all times that the Child spends time with the Maternal Grandmother.

See also Mandes and Bamford [2014] FamCA 190; Sinha and Sinha [2014] FamCA 159; Dodds and Storace [2014] FamCA 209; and Barzetti and Barzetti [2014] FamCA 233.

Non-parents and parenthood 5.21 Although the major emphasis of Pt VII of the FLA is the importance of children both knowing and being cared for by their parents, this is not always possible. In the matter following, the person seeking the major parental role bore no legal relationship to the children in question. [page 182]

The case of Withall, Richardson and Powles [2013] FCWA 54 before Walters J contained the following facts. The mother of children aged 13, 12 and 11 contested with the father’s former de facto partner (Ms Powles) where the children should live. The father did not participate. Upon examining the evidence as to ‘the benefit to a child of a meaningful relationship with both parents’ within the meaning of s 60CC(2)(a) of the FLA, Walters J said (at [181]–[183]): I accept that the children have a close and loving relationship with Ms Powles. Their relationship with the mother is more complex. The children (in particular, [S] and [J]) have suffered from abandonment issues where their mother is concerned, and I refer to and accept [family consultant] Mr Perkins’s evidence in this regard.

At times, there has been open conflict between the mother and [S]. The children’s relationship with the father is less conflicted than their relationship with the mother. The father has made it clear, however, that he does not seek orders to the effect that the children live with him. The mother and Ms Powles both advised the Court that the children should not be separated, and that they should all live in the same household. The only realistic choice for the Court, therefore, is between orders for the children to live with the mother or orders for the children to live with Ms Powles. His Honour continued (at [187]–[188]): I am conscious of the need to ensure that the children will have the opportunity to benefit from having a meaningful relationship with both of their parents. I accept that they would have such an opportunity if they were to live with either the mother or Ms Powles. If the children were to live with the mother, however, it seems likely that she would seek to terminate their relationship with Ms Powles; indeed, the mother seeks orders to this effect. But to terminate such a relationship would not be in the children’s best interests, given the closeness of their relationship with her and the evidence to the effect that she has been ‘the most consistent person to care for them’ (according to Mr Perkins). I recognise the importance of the fact that the mother is a parent of the children, and I understand how deeply she regrets some of her past actions and how strong is her current wish to have them live with her, but it is the best interests of the children that comprise the paramount consideration in these proceedings — not the mother’s best interests, or her heartfelt desires.

Upon considering the evidence as to all s 60CC matters it was ordered that all three parties have equal shared parental responsibility and that the children live with Ms Powles.

Children born of a surrogacy arrangement 5.22 In general terms a surrogate is a person appointed to represent or act on behalf of others. In the normal course of events such a position rarely engenders either legal or ethical dilemmas. In contrast, surrogate motherhood, the arrangement where one woman bears a child to be relinquished at birth to another person, is endlessly complex. The cases following expose some of the legal complexities which of themselves raise ethical questions. [page 183]

In Dudley and Chedi [2011] FamCA 502 at [1]–[2] Watts J described the issues before him as follows: Mr and Ms Dudley [Queensland residents] have brought three baby boys back from Thailand to Australia. This application relates to two of them, L1 and L2 (‘the children’) born in August 2009. The boys were artificially conceived by using Mr Dudley’s sperm and donated eggs from a Thai woman. Another Thai woman, unrelated to the egg donor, carried and gave birth to the boys. She is named as the respondent. The anonymous egg donor is not a party to these proceedings.

Yet another Thai woman was impregnated with a third zygote produced by Mr Dudley’s sperm and the same egg donor. This resulted in the birth of another child, L3, who was the subject of a separate judgment by Stevenson J delivered on 22 February 2011. Her Honour made orders similar to the orders sought before me. [A previous judgment has been reported using the pseudonym ‘Dennis and Anor & Pradchapet [2011] FamCA 123’. Mr and Ms Dennis are the same persons as Mr and Ms Dudley.] The birth mothers placed all children into the sole care of the applicants soon after the birth of the children and consented to a parenting order being made in favour of the applicants, the children being allowed to enter Australia on a ‘sub class 101 visa’ issued by the Australian Embassy in Bangkok (citizenship based on descent was denied as the surrogate mother retained parental rights under Thai law). Watts J said (at [7]): At all relevant times it has been illegal for a resident of Queensland to enter into surrogacy arrangements as Mr and Ms Dudley appear to have done. Watts J discussed the illegality of the arrangements (at [13]–[15]): In very recent times Australia has been moving towards a uniform position in relation to the legality of surrogacy arrangements [a proposal for the national regulation of surrogacy cited] and all places in Australia, except Tasmania and the Northern Territory, now have laws about surrogacy arrangements. State laws have aimed to protect women and children from what the legislature has seen as abusive practices which potentially surround the commercialisation of surrogacy. At this date, all State laws that have been enacted authorise altruistic surrogacy and make illegal

commercial surrogacy [s 8 of the Surrogacy Act 2010 (NSW) cited as an example]. In the present application before me, all relevant acts done by the applicants were done at a time when the now repealed Surrogate Parenthood Act 1988 (Qld) (‘SPA Qld’) was in force. Watts J set out the provisions of that Act which ‘prohibited the applicants … from doing what they have done [commercial surrogacy] and made it a criminal offence’ (at [16]). His Honour referred to the ‘starkly deficient’ material before him as to the financial arrangements between the applicants and all those involved (in relation to L1 and L2) and the little evidence as to any ‘safeguards … in place to protect the surrogate mother from emotional or financial harm’ (at [17]–[18]), adding this (at [19]): I note in passing that Queensland has now passed the Surrogacy Act 2010 (Qld) which has repealed the previous Act as from 1 June 2010. It legalised altruistic surrogacy in Queensland, while maintaining the illegality of commercial arrangements. In doing so, protections have been put around the process, such as a surrogacy guidance report prepared by an independent and appropriately qualified counsellor (s 32). What the applicants did would still have been illegal under the new Queensland law. [page 184] The penalties relating to commercial arrangements under the new law are the same as under the old. [Queensland [having] the largest penalty … of up to three years of imprisonment and/or a fine of 100 penalty points [$10,000]] Referring to the child L3, Watts J said (at [23]–[24]):

Stevenson J in her judgment in respect of L3, found that Mr Dudley is a ‘parent’ of L3 for the following reasons: 1.

He and the surrogate mother both say on their oath that he provided his genetic material to fertilise the anonymously donated egg in the IVF process;

2.

DNA testing has established that he is the children’s biological father;

3.

He is registered as the father on the children’s Thai birth certificates and ‘House Registration’ documents;

4.

He assumed the role of father to the children almost immediately upon their birth;

5.

He intends, jointly with his wife, to provide ongoing care and support for the children; and

6.

The surrogate mother and, obviously, the anonymous egg donor intend to play no role whatsoever in the children’s lives.

The issue arises as to whether or not the first applicant is a parent of the children in the current proceedings. I need to consider whether I make a similar finding to that of Stevenson J. I note that despite the applicant’s legal representatives providing lengthy submissions about whether the first applicant is a ‘parent’, the applicants have not specifically asked to make any determination of the status of L1 and L2 nor their parentage. I am simply being asked to make a confirmatory order as to where they will live and who will have responsibility for them. Watts J referred to the surrogate mother’s evidence that she had never married or been in a de facto relationship, saying (at [27]– [30]): The reason these facts are important is because it

means that the current provisions of s 60H FLA [Family Law Act] are not enlivened in this case (see in comparison Re: Michael — Surrogacy Arrangements [2009] FamCA 691). The twins are therefore not precluded from being the children of the applicants, by virtue of s 60H(1)(d) FLA (I have previously referred to the potential conflict between s 60H FLA and s 60HB FLA in Re: Michael). The FLA contains no definition of the term ‘parent’. The equivalent of what the new Queensland Surrogacy Act 2010 now calls a ‘parentage order’ can be applied for in all places in Australia except Tasmania and the Northern Territory [the statutory provisions in those states and the ACT were cited]. These State laws have been prescribed [noted as FL Reg 12CAA] for the purposes of s 60HB FLA. Once a State order is made about who is a parent, the federal law will recognise it. By enacting s 60HB FLA, the Federal Government resolved any issue as to whether or not the transfer in the 1980s by the States of powers relating to children created any issue as to whether or not laws about parentage in relation to surrogate children should be made at Federal or State level. Section 60HB FLA provides that State law will govern the determination of parentage and that State law will be recognised by Federal law. Had the current State Queensland law regarding parentage applied to the applicants in this case, they would not have been able to get a parentage order. A number of sections in the Surrogacy Act 2010 (Qld) preclude a State parenting order in the applicants’ favour including the requirements that: an application be made within 6 months of the

[page 185] children’s birth (s 21(1)(a)); all parties undertake counselling (s 22(2)(e)(ii)); and most importantly, the agreement is not a commercial surrogacy agreement (s 22(2)(e)(vi) and s 23(1)). The Status of Children Act 1978 (Qld), which is otherwise applicable (see s 17 Surrogacy Act 2010 (Qld)) also does not assist, with an irrebuttable presumption that the surrogate mother is the parent (s 23(2)(a)), and the first applicant, who has provided the sperm, is not (s 23(4)). I note that Status of Children acts are generally more applicable to the protection of a sperm or egg donor in more conventional assisted reproductive procedures. Watts J concluded as to parental status as follows (at [32]): Notwithstanding the possible advantages [listed at [22]] to L1 and L2 in making a finding that Mr Dudley is a parent of L1 and L2, I decline to make that finding for the following reasons: 1.

Applicable State law made what he did illegal;

2.

There was at that time no provision in State law that would allow the recognition of any relationship between the twins and Mr Dudley;

3.

Had the surrogacy arrangement been altruistic, there is now such a provision that would allow such recognition;

4.

Mr Dudley may seek a remedy through adoption legislation; and

5.

The orders that are sought in this case can be made without recognising Mr Dudley as the father of the twins.

As to the applicants’ standing to apply for parenting orders,

Watts J (at [33]) confirmed that s 65C(c) provided such standing ‘without [the court] making a finding that Mr Dudley is a parent of L1 and L2’, the applicants being found to be ‘persons concerned with the care, welfare and development of [the] children’. His Honour (at [35]) also waived the requirement under s 65G for the parent and non-biological parent to discuss the matter with a family consultant, finding that such discussion ‘would be futile’ as the surrogate mother lived in Thailand and had relinquished all rights to the children. Upon reviewing the best interests of the twins, an order was made that they live with the applicants who were ordered to have equal shared parental responsibility for them. Watts J, however, concluded (at [44]): It appears that what the applicants have done in this case is illegal. I will direct the Registrar to send a copy of these reasons for judgment to the Office of the Director of Public Prosecutions, Queensland for consideration of whether a prosecution should be instituted against the applicants under s 3 Surrogate Parenthood Act 1988 (Qld).

In the matter following, Watts J again discussed the illegality of the surrogacy arrangement.

In Findlay and Punyawong [2011] FamCA 503 Watts J made orders for parental responsibility in respect of twins who were born by surrogacy arrangement in Thailand. His Honour found it appropriate to make the orders in the best interests of the children, but on the basis of the illegality of the applicant parents’ actions under the Surrogate Parenthood Act 1988 (Qld) and the Surrogacy Act 2010 (Qld), the judgment was referred to the Queensland Director of Public Prosecutions.

[page 186] As already noted the word ‘surrogacy’ involves considerations of ethics, morality, human rights and increasingly, the exploitation, or some might argue enrichment, of women who are poor and willing to carry and give birth to a baby for those who can afford to pay for the service: in other words, a commercial rather than an altruistic arrangement. Whatever the various ethical, legal and other ramifications of commercial surrogacy there is a very human element that cannot be overlooked. The surrogate has a baby or babies with whom she will have little or no contact once the fee is paid and that child is placed with their new family. In the ordinary course of events such transactions are relatively private but not the matter following. For many reasons the media took an extreme interest in what became colloquially known as the ‘Baby Gammy case’. Baby Gammy and his twin sister Pipah were born in Thailand in December 2013 to surrogate mother Pattaramon Chanbua, using the sperm of Australian man David Farnell and donor eggs. Gammy was born with the genetic condition Down syndrome. In February 2014 the Farnells returned to Australia with Pipah. Gammy remained with his birth mother, Ms Chanbua. Subsequently Ms Chanbua sought orders from Western Australia’s Family Court to have Pipah returned to her. In addition, to use the modern vernacular, there was an ‘elephant in the room’. It became public knowledge that Mr

Farnell had served a prison term for convictions relating to paedophilia involving 15 charges of indecently dealing with two young girls. He served a further 18 months imprisonment for similar crimes.

In Farnell and Chanbua [2016] FCWA 17 the facts are set out in a judgment of Thackray CJ. This is, however, a hugely complicated matter with applicants, respondents and intervenors and there is space here only for a truncated version of the whole judgment. This is a matter, however, that deserves a full reading of all the facts and findings of his Honour. In what can only have been a very onerous task for his Honour, he brought down a judgment of considerable clarity. I have decided Pipah should not be removed from the only family she has ever known, in order to be placed with people who would be total strangers to her, even though I accept they would love her and would do everything they could to care for all her needs. In reaching my decision, I have primarily taken into account the strong attachments that Pipah has now formed with the Farnells and many others in Bunbury, as well as the quality of the care she is receiving. While it is a matter of grave concern to leave any child in the home of a convicted sex offender, I have accepted the expert evidence that while there is a low risk of harm if Pipah stays in that home, there is a high risk of harm if she were removed. I have also taken into account the measures that can be put in place to ensure Pipah is kept safe. [at [66]–[67]] … I conclude that s 60H(1) has no application to children born as a result of a surrogacy arrangement, and that s 60F(1)(b) similarly has no application. Pipah is therefore

not a ‘child’ of a marriage’, and the State Act applies. [at [309]] The statutory presumption in favour of equal shared parental responsibility does not apply to the Farnells because they are not Pipah’s parents; however, it is not in dispute that they should have parental responsibility if an order is made for Pipah to live with them. [at [498]] [page 187] Examination of the advantages and shortcomings of each option has led me to conclude that Pipah’s interests will be promoted by remaining with the Farnells. The destruction of all of the attachments she has made with the Farnells and others in their circle could cause incalculable harm. This could only be justified if the risk of her being abused in the Farnells’ home was higher than the evidence suggests it is. [at [517]] In my view, it would not be in Pipah’s best interests to mandate any form of contact between her and Mrs Chanbua and Gammy … I also do not intend to make orders requiring the Farnells to send photographs or school reports to Mrs Chanbua. Although I can see the advantage to Gammy of having photographs of his sister and can readily understand why Mrs Chanbua would like to have photographs, I am concerned about the photographs and reports falling into the hands of the media and about Pipah’s privacy being invaded by them being reproduced. [at [538], [543]] … I have concluded that Pipah’s best interests will be advanced by having the same name as Mr Farnell, who she will regard as her father (and noting that the name is

also sometimes used by the woman she regards as her mother). [at [553]] [The Human Rights Commission drew attention] to s 191(1) of the State Act, which deals with presumptions of parentage arising out of a finding made by a court. It was argued that if I declared Mr Farnell to be Pipah’s parent, ‘this may have implications in other circumstances which are relevant to the human rights of [Pipah]’. Even if I accepted the validity of all the submissions made by the Commission on this topic (which I do not), they would not be such as to authorise me to confer on Mr Farnell a status which the law expressly denies him. [at [569]] I accept the Attorney General’s submission that the only persons who should be noted as Pipah’s parents on the Register are Mr and Mrs Chanbua, who I have found to be her parents for the purposes of Western Australian law. However, s 49 of the Births, Deaths and Marriages Act provides that in addition to containing ‘the particulars of each registrable event’, the Register can contain ‘further information if its inclusion is considered appropriate by the Registrar’. Although the matter has not been the subject of submissions, as presently advised, I consider that my power to direct the Registrar is limited to directions in relation to the inclusion of information about the identity of the child’s parents and concerning the child’s name. However, in the unusual circumstances of this case, it may be in Pipah’s best interests for the registration to make some reference to the legal authority pursuant to which she is under the care of the Farnells. I would therefore invite the Registrar to consider whether it is appropriate to include a notation on the Register to the effect that an order has been made under the State Act conferring parental responsibility on the Farnells. [at [632]] While the evidence suggests it is probable that Pipah will

come to no harm if she remains with the Farnells, I do not consider that the possibility she might come to such harm can be sensibly ignored. In arriving at that conclusion, I have had regard to all of the evidence and to the likely devastating impact on Pipah if she were to be abused. [at [726]] … I intend to apply the ‘no order principle’ and will dismiss the application for a protection order. This decision has one further, albeit modest, advantage. The orders proposed are already long enough and complicated enough without having the added layer of one set of conditions attaching to a protection order, and another set attaching to the residence order that would only come into effect when the protection order expired. [at [732]] This matter highlights the difficulty in achieving a balance between the right of the public to learn of the full background to an important case while ensuring that the best interests of the children involved are protected. Families involved in proceedings in this court normally have their anonymity protected, but for reasons previously stated, the parties here will be exposed to the full glare of public scrutiny. My concern is to ensure [page 188] that the order permitting publication of the proceedings will not cause further upset to Pipah. The previous invasion of the Farnells’ privacy by some elements of the media caused great anxiety and anguish and, in my view, severely impinged on their ability to provide proper care for Pipah. [at [741]] I am concerned about the impact on Pipah of the further

stress, expense and public humiliation for her carers that would be the inevitable result of criminal proceedings. Ordinarily, I would not consider this a matter of great relevance; otherwise, parents would be given carte blanche to ignore the law because of the impact on their children of being punished for their wrongdoing. However, in the present matter, the Farnells have already suffered great humiliation and enormous stress for things they did not do. [emphasis in judgment] [at [751]] In my view, courts refer papers because illegal conduct has come to light in the proceedings that may not otherwise come to the attention of the prosecuting authorities. In this case, the fact that the Farnells lied is already known to the Attorney General, the first law officer of the State. If the Attorney sees fit, it is open to him to ask the DPP to look into the matter. Ultimately, it is not my function to determine who should and should not be prosecuted. I will therefore do no more than direct that the papers be made available for inspection by the police or the DPP on request. [at [753]] Thackray J, in very compelling language, went on to express his views on surrogacy: It should be apparent that I have approached this dispute from the perspective of what would be best for Pipah. The decision should therefore not be interpreted as indicating any form of approval of commercial surrogacy … The appalling outcome of Gammy and Pipah being separated has brought commercial surrogacy into the spotlight. Quite apart from the separation of the twins, this case serves to highlight the dilemmas that arise when the reproductive capacities of women are turned into saleable commodities, with all the usual fallout when

contracts go wrong. The facts also demonstrate the conflicts of interest that arise when middlemen rush to profit from the demand of a market in which the comparatively rich benefit from the preparedness of the poor to provide a service that the rich either cannot or will not perform. This case should also draw attention to the fact that surrogate mothers are not baby-growing machines, or ‘gestational carriers’. They are flesh and blood women who can develop bonds with their unborn children. It is noteworthy that no evidence was provided about the long-term impact on mothers of giving up children they carried, and there was no evidence of the impact on the children themselves. Nor was there any expert evidence of the impact on the other children of birth mothers who would have seen their mother pregnant, and perhaps felt the baby move in her belly, only to find that the baby never came home from hospital. [at [755]–[757]]

The concept of ‘parental responsibility’ 5.23

Section 61DA(1) of the FLA provides:

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

This presumption of equal shared parental responsibility is a result of the amendments made to the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Equal shared parental responsibility must not be

confused with the notion of each parent spending precisely equal time with the child. [page 189]

In Marvel and Marvel (No 2) [2010] FamCAFC 101 (Full Court of the Family Court of Australia), before Faulks DCJ, Boland and Stevenson JJ, a question arose as to whether the trial judge erred by failing to address s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAA (court to consider the child spending equal time or substantial and significant time with each parent in certain circumstances) in relation to interim parenting procedures. This was an appeal from interim parenting orders made by Cohen J (who conducted a review of a decision of Loughnan JR). Ms Marvel applied on an interim basis for parenting orders which would have allowed the child to live primarily with her, and for the child to spend short (and effectively supervised time) each week with the child’s father. Loughnan JR made orders by consent with respect to the times nominated by Ms Marvel, but did not order any supervisory conditions upon Mr Marvel’s time with the child. Ms Marvel applied for a review of Loughnan JR’s orders. Cohen J heard the review and determined that the child spend time with the father for an alternate overnight weekend stay unsupervised. Cohen J made these orders in the context of Ms Marvel’s claims that there was an unacceptable risk of sexual or physical abuse to the child if orders were made allowing the child to spend time with Mr Marvel. Ms Marvel appealed Cohen J’s orders on the grounds that his Honour had not properly applied the relevant provisions of Pt VII

of the FLA. Ms Marvel argued that Cohen J had purported to exercise jurisdiction to make a parenting order without having determined whether or not the presumption of equal shared parental responsibility was applicable. Ms Marvel argued that as Cohen J had not considered the presumption of equal shared parental responsibility he had not consequently considered the requirements of s 65DAA of the FLA. In her submission, this meant that the orders were vitiated. The Full Court allowed the appeal. The Full Court determined that s 61DA of the FLA required Cohen J to consider whether or not the presumption of equal shared parental responsibility should have applied, including in interim proceedings. His Honour’s failure to do so constituted an appealable error.

5.24 Section 61C(1) of the FLA stipulates that each parent of a child under 18 years has parental responsibility for that child. Section 61B defines parental responsibility to mean ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. The term takes its origins from the Children Act 1989 (UK) and, subject to court orders, it is ongoing despite changes to the marital relationship: s 61C(2). The employment of the word ‘each’ in s 61C(1) tends to indicate that parental responsibility may be exercised severally as well as jointly with only fundamental issues, such as those previously covered by guardianship, requiring consultation: B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755. This definition of parental responsibility can be distinguished from that contained in the Children Act 1989 (UK) in that it does not make reference to ‘parental rights’. This is a feature that also

distinguishes the FLA from the UN Convention, which recognises that parents have rights. Under s 61B of the FLA, [page 190] parental responsibility means all the duties, powers, responsibilities and authority that parents have, by law, in relation to their children. According to s 61C of the FLA, both parents of a child aged less than 18 years have parental responsibility (subject to court orders) for their child. This responsibility continues, despite any changes in the nature of the parental relationship of a child (that is, parental responsibility will not change if a child’s parents become separated, or if one or both parents remarry). A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) expressly provided for in the order; or necessary to give effect to the order. 5.25 The FLA does not specify what these responsibilities and duties are; it was accepted, however, by the Full Court in B and B as probably amounting to a sum of the former concepts of guardianship and custody, which cover decisions relating to both the long-term and day-to-day care, welfare and development of the child. Further assistance may be obtained from Bromley’s Family Law which indicates that parental responsibility includes providing a home for the child, having contact with the child, determining the child’s religion and education, consenting to medical treatment and protecting, maintaining and disciplining the child: 7th ed,

Butterworths, London, 1987. Sections 1 and 2 of the Children Act 1995 (Scotland) define parental responsibility in similar terms. 5.26 The exercise of parental responsibility may be modified by agreement between the parties by filing a parenting plan or by court order (s 61C(3) of the FLA) and ceases on the child reaching the age of 18 years: s 61C(1). It is clear from s 61D(2) that parental responsibility is affected only to the extent that is expressly required by the order or is necessary to give effect to the order. The High Court has endorsed the view that the power and authority embodied in the concept of parental responsibility dwindle as the child’s maturity increases: Department of Health and Community Services (NT) v JWB and SMB (1992) 15 Fam LR 392; FLC ¶92-293; 175 CLR 218; P and P (1995) 19 Fam LR 1; FLC ¶92615 (Marion’s case).

This principle stems from the House of Lords’ decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402. In this case Mrs Gillick requested from the Area Health Authority an assurance that her daughters would not receive contraceptive advice or an abortion without her consent. A majority of 3:2 held that contraceptive advice could be provided to the minors, without their parents’ knowledge or consent, if they had the capacity to make decisions about their own health care. The High Court in Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 15 Fam LR 392 at 401; FLC ¶92-293; 175 CLR 218 adopted the ‘mature minor’ or ‘Gillick competent’ test employed by Lord Scarman in Gillick. The test stipulates that the child’s capacity to make his or

her own decisions increases as the child matures and parental authority diminishes accordingly. [page 191] The majority held (at 401): … [that] parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child … 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’. Implementing this principle, the majority further held that parental authority to determine whether or not the child will undergo medical treatment terminates if and when the child ‘achieves sufficient understanding and intelligence’ to enable him or her to understand fully the proposal. While both Gillick and Marion’s case were decisions relating to medical treatment, the broad statements of principle are considered to apply beyond this context. As Deane J held (at 441): The most important influence making it inevitable that the extreme view of parental authority [which is that parental authority continues until the child is 18] would yield to the common law’s traditional recognition of the gradual development of the legal capacity of a young person to decide things for herself or himself has, however, undoubtedly been the social fact of the increasing independence of the young. … The effect of the foregoing is that the extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending

the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person. Conversely, the authority of parents with respect to a young person of less than 18 years is limited, controlled and varying.

5.27 Thus, it is not exactly clear what level of understanding the child must display in order to be considered a ‘mature minor’. It is clear that a meaningful decision about medical treatment, for example, would necessitate the ability to understand the information provided and appraise the available options and their consequences. It is also likely that the more independent the child is from parental support, the more likely it is that the child will be considered ‘Gillick competent’. Nevertheless, this ability of the ‘mature minor’ to make decisions for herself or himself is subject to the ‘best interests’ principle: Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC ¶95-598.

Guiding principles when deciding parenting orders 5.28 To some degree — despite the passing of time — the courts and practitioners are still exploring the possibilities of the amended Act, but Goode and Goode (2006) 36 Fam LR 422; 206 FLR 212; [2006] FamCA 1346 (below) provided and continues to provide considerable guidance. Almost every case to come before the Family Court since the findings in Goode and Goode reflect the judgment brought down by the Family Court in that matter.

[page 192]

Goode and Goode (2006) 36 Fam LR 422; 206 FLR 212; [2006] FamCA 1346 was the first case to be heard by the Full Court of the Family Court after the 2006 amendments to Pt VII of the FLA came into force. In this matter, the parties were married in July 1996 and separated for a time in 1999. A final separation occurred in late May 2006 when the father left the matrimonial home. There were two children of the marriage, T aged eight years and J aged two years at the time of the trial. Initially, following separation, the children remained living with the mother and spent time with the father each alternate weekend. The mother submitted to the trial judge that these arrangements occurred by agreement. In contrast, the father alleged that the mother was restricting the time the children could spend with him to these times. The mother made an application for final parenting orders that the children live with her and spend time with their father. She agreed that both parents have joint responsibility for decisions affecting the children’s long-term care, welfare and development. The application was filed prior to the terminology of the amending legislation. In response, the father sought orders on both an interim and final basis for an equal shared care arrangement and also sought orders for joint long-term decision-making responsibility. In response to the father’s interim application, the mother sought orders that the children live with her and spend time with the father on alternate weekends, for half the school holidays and in relation to the older child, for two additional days each week. There was little real dispute about the parties’ respective abilities to appropriately care for the children. The mother raised allegations of domestic violence during the relationship, including that the father pushed her to the floor

when she was pregnant, pushed and slapped her with an open hand, physically abused her and threw her around the bedroom. The father denied these allegations. The trial judge found he was unable, on the untested evidence before him, to make a finding about whether there had been family violence. He determined, however, that it was not appropriate to apply the presumption of equal shared parental responsibility. The judge, at first instance, relied upon the discretion not to apply the presumption in interim proceedings under s 61DA(3). Having regard to the principles enunciated in A M Cowling and J H Cowling [1998] FamCA 19, his Honour concluded that there was nothing in the evidence to suggest that the arrangements that were in place several months prior to the hearing did not meet the needs of the children. The trial judge did not specifically consider the matters under s 60CC. The father appealed. On appeal, the Full Court (Bryant CJ and Finn and Boland JJ) summarised and gave guidance as to the application of the relevant sections of Pt VII of the FLA. It was confirmed that the best interests of the children remained the paramount consideration in parenting matters. The presumption in s 61DA is to be considered even where no orders for equal shared parental responsibility are sought and that the status quo, and many of the principles enunciated in Cowling, are no longer applicable. The Full Court held that the trial judge was correct in determining that the presumption in s 61DA ought not to apply, but that he erred in failing to properly consider the relevant s 60CC factors when reaching a decision to maintain the status quo in terms of the arrangements for the children.

[page 193]

Retrospectivity is not applicable 5.29 An important aspect of the legislative change was the intention of the legislators that the amending provisions of the Act be prospective only. Two cases illustrate this intention.

In the matter of Vanderhum and Doriemus [2007] FamCA 478, the Full Court of the Family Court of Australia considered an appeal by a father against orders made for the two children of the marriage to live with the mother and spend time with the father. The initial hearing of the matter occurred in a trial before a single judge in late 2005 and early 2006. One aspect of the appeal was a submission made by the father that the trial judge was in error by failing to take into account the provisions of the pending legislative change to the FLA. Stated simply, the father argued that the provisions of the pending Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ought to have been applied retrospectively to the matter heard in 2005/2006. The Full Court dismissed the appeal, saying in effect that it was the intention of the legislators that the new provisions were to apply only to matters heard after the precise date on which the provisions were to enter into force (1 July 2006). The Full Court noted that there was no indication that the legislature intended the Family Law Amendment (Shared Parental Responsibility) Act to have retrospective effect, and that in fact there were clear indications in the legislation to the contrary. In following Vanderhum and Doriemus, the Full Court dismissed the appeal. The father sought to have an appeal of last resort heard by the High Court of Australia. To do so he needed the permission of the High Court. He did not succeed. On 14 December 2007, the High Court refused special leave to appeal.

Therefore the matter could go no further. The decisions of the trial judge and Full Court stood. See also Kendling v Kendling (contempt) (2008) 40 Fam LR 134; [2008] FamCAFC 154 and Oakely and Read [2007] FamCA 1520.

The appellant father in Guiness and Guiness [2008] FamCAFC 10 fared no better. In that matter the question to be decided by the Full Court of the Family Court was whether the trial judge erred by failing to take into account provisions of the FLA yet to commence. The father submitted that the trial judge erred in making parenting orders on 30 June 2006 without taking into account the amendments to Pt VII of the Act which came into force on 1 July 2006. The Full Court dismissed the appeal, saying in effect that the intention of the legislators was clear with regard to the precise date on which the amendments fell to be applied and this was 1 July 2006.

5.30 In Goode and Goode (2006) 36 Fam LR 422; 206 FLR 212; [2006] FamCA 1346, the Full Court provided the following summary of the effect of the amendments made to Pt VII of the FLA by the Family Law Amendment (Shared Responsibility) Act 2006 (Cth). The decision states, in summary, the amendments have the following effect (at [65]): 1.

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the

[page 194]

child’s parents has parental responsibility for the child. ‘Parental responsibility’ means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties. 2.

The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

3.

If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of making an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

4.

The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

5.

When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

6.

The Act provides guidance as to the meaning of ‘substantial and significant time’ (s 65DAA(3) and (4)) and as to the meaning of ‘reasonable practicability’ (s 65DAA(5)).

7.

The concept of ‘substantial and significant’ time is defined in s 65DAA to mean: (a) the time the child shares with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends and holidays; and (b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events which are of special significance to the parents.

8.

Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

9.

The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

10. Where the presumption of equal shared parental responsibility does not apply, the Court is at large to consider what arrangements will best promote the

[page 195] child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with 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. 11. The child’s best interests remain the overriding considerations.

The actual facts of the matters following are not important for our purposes other than to provide an outline of the manner in which the Family Court approaches matters in relation to with whom a child lives, spends time and/or communicates. The encompassing principle of Pt VII is the obligation that the court must consider the best interests of the child as the paramount consideration. When reaching a decision in relation to the parenting and best interests of children, the judges of the Family Court are obliged to follow a strict schematic approach as laid down in Pt VII of the FLA.

In Leach and Leahy [2014] FCCA 1178 at [20], Lucev J declared: In exercising jurisdiction to make parenting orders the Court must, and has in this case: (a) followed the defined legislative pathway under the

FL Act, being aware of the overarching objects and underlying principles therein; (b) been mindful of the requirement imposed by s 60CA of the FL Act that the best interests of the Children are the paramount consideration, but not the only consideration; (c) given proper weight to the primary, additional and other considerations under s 60CC of the FL Act, and (d) had regard to the statutory presumption that it is in the Children’s best interests for parents to have equal shared parental responsibility, which relates to major decision-making, not time spent with each parent by the Children.

In Ellershaw and Survant [2013] FamCA 510 at [31]–[37] Kent J set out in detail the path he must follow in reaching a decision in the matter before him: Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1); and the principles which underlie those objects (s 60B(2)). [Section] 60B(1) provides: (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful

involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and [page 196] (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act identifies the ‘primary considerations’ (s 60CC(2)) and the ‘additional considerations’ (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4). Section 65D of the Act provides the source of the Court’s power to make a ‘parenting order’. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have

equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, 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 (s 61DA(4) of the Act). If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents (s 65DAA). Section 68B of the Act is the source of power for the Court to make orders or grant injunctions appropriate to the welfare of the child in proceedings under Part VII. The power is discretionary and injunctions can be granted on terms.

Equally, in the matter of Sheffield and Oakes [2013] FamCA 183 before Benjamin J the legislative pathway which follows that of Kent J is particularly thorough. His Honour stated (at [38]–[41]): Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children. Section 60B of the Act sets out the objects and underlying principles to make sure that the child’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.

In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence. [page 197] In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part VII of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said [at 87]]: Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: (i) Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U [2002] HCA 36; (2002) 211 CLR 238) (ii) Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and

make findings about each of the ‘best interests’ considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo [[2010] FamCAFC 53]) (iii) Consideration of and findings about the s 60CC considerations will result in findings one way or the other about ‘abuse’ and ‘family violence’ within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g), (k) and s 60CC(2)(b)). (iv) In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 at [142]). (v) Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to ‘abuse’ or ‘family violence’ (s 61DA(2)) and the findings on ‘best interests’ considerations (s 61DA(4)). (vi) If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.

(vii) If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider: i.

Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,

ii.

Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time. [page 198]

(viii) The questions about ‘best interests’ posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b), (c) and (d) above. (ix) To answer the question of ‘reasonably practicable’ regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR [2010] HCA 4; (2010) 240 CLR 461] s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of

equal time respectively.

or

substantial

and

significant

time

His Honour continued (at [42]–[46]): I have considered and adopt the pathway suggested by Kent J. The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides: (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests): (a) children have the right to know and be cared

for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act. [page 199] There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in the abuse of the child or family violence the presumption does not apply.

If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

Source of ‘best interests’ principle 5.31 Section 60CA of the FLA sets out the fundamental rule that, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: see also s 65AA.

The procedure for making parenting orders 5.32 In proceedings for a parenting order in relation to a child, the court may, subject to s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAB (parenting plans), make such parenting orders as it thinks proper: s 65D of the FLA. In addition, and subject to the same restrictions, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. As stated above, the paramountcy principle in applications pursuant to Pt VII of the FLA is the best interests of the child. Once the court has identified this essential premise, it must consider the relevant primary and additional considerations in s 60CC in light of the s 60B objects. Once the relevant s 60CC factors have been identified, they must be weighed to determine which proposal achieves the best interests of the child in the particular case: B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755; Marriage of R (1998) 23 Fam LR 456; FLC ¶92-820.

5.33 While s 4 defines ‘interests’, in relation to children, to include matters relating to their care, welfare and development, and s 60CC sets out the relevant factors in this regard, how is the court to measure whether the proposal meets the requisite standards of the best interests of the child?

The predecessor to the ‘best interests’ test, from which there has been no qualitative departure, was considered by Fogarty J in Marriage of Horman (1976) 5 Fam LR 796 at 797; FLC ¶90024: The test of the welfare of the child has to be determined having regard to contemporary social standards, that is, it cannot be a totally subjective test based upon the views or [page 200] standards of the individual parent, but objective at least in the sense of falling within the wide range of existing social standards. The child’s happiness has also been held to be a factor when determining the child’s best interest: Marriage of K and Z (1997) 22 Fam LR 382; FLC ¶92-783.

5.34 Further, when considering what amounts to the best interests of the child, each case must be ‘approached on its own facts, bearing in mind the paramount status of the best interests of the child’. No case has attempted to define the

precise meaning of ‘the best interests of the child’ and, as such, in this highly discretionary area, a great deal depends on the court’s assessment of the facts in the particular case before it. In the matter following, a mother successfully appealed against a judgment of a primary judge. On appeal the Full Court spoke of the need for proper expert evidence rather than relying on website advice. The Full Court was also of the opinion that the primary judge failed to follow the correct legislative pathway obligatory under the FLA when making parenting orders.

In Jackson and Macek [2015] FCCA 1656, on 3 June 2015, the matter came before the primary judge, Myers J, on an application by the mother after the father failed to return the baby to the mother’s care. At that hearing Myers J raised the issue of the mother’s breastfeeding in relation to evidence that she was taking medication to assist post-natal depression. The mother had also used cannabis on one occasion in the past two years and four weeks ago had been tattooed. His Honour was concerned that the mother would continue to breastfeed and declined to return the baby on that day. The matter was adjourned until 5 June 2015. At that hearing the mother presented test results to the court that indicated that she did not have hepatitis or HIV, with the caveat that a test taken less than three months after exposure would not exclude the risk of acquisition of HIV. The judge relied on documents from the websites of Hepatitis Australia and the Australian Breastfeeding Association and was satisfied there remained a risk of the transmission of HIV to the baby if the mother were to continue breastfeeding. An order was made stopping her from doing so. Myers J inter alia made interim orders that:

(1) The mother be prevented by injunction from breastfeeding the child X born (omitted) 2014. … (4) The child spend time with the father at all times as agreed between the parties and failing agreement from 9.00am until 3.00pm each Sunday, Monday, Wednesday and Friday. … (10) The parties are restrained from having X in their presence while they partake in any criminal activity. … (12) The mother is injuncted and restrained without admission from the child attending upon the maternal grandmother’s home. [page 201] (13) Subject to Order 14 below the mother is injuncted and restrained from allowing the child to come into contact with the maternal grandmother or her partner Mr T. (14) The injunction with respect to the maternal grandmother coming into contact with the child shall apply unless the maternal grandmother is at all times in the presence of the maternal great grandmother. In reading these injunctions it is impossible not to feel anxious about the future of X when danger appears to be ever-present. In addition orders were made in relation to the parents’ drug use and testing for illicit substances. The successful appeal by the applicant mother was heard in the Full Court of the Family Court in Jackson and Macek [2015]

FamCAFC 114 before Ryan, Aldridge and Hannam JJ who were unanimous in allowing the appeal: (1) The appeal be allowed. … (3) That orders 13 and 14 of the Orders made on 5 June 2015 be set aside to the extent that those orders restrain the mother from permitting the child to be in contact with the maternal grandmother. (4) The question of the child’s time with the father be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Myers. (5) Pending the re-hearing referred to in the above order or further order the child shall spend time with the father on two occasions each week for five hours as agreed between the parties and in default of agreement from 10:00 am to 3:00 pm each Wednesday and Sunday. In relation to the judge’s reliance on documents from the websites of Hepatitis Australia and the Australian Breastfeeding Association, Aldridge J said (at [46]) of his reasons: This, of course, highlights the need for expert opinion evidence to be given by persons who actually have expertise in that field as opposed to those who do not. Judges must not mistake their own views for being either facts not reasonably open to question or as appropriately qualified expert evidence. That those views may have been obtained by the judge searching the internet compounds rather than alleviates the difficulty. The judge was also found to have erred by failing to consider the benefits to the baby, both emotionally and physically, of continued breastfeeding and any negative effects of its sudden cessation.

The Full Court also held that the primary judge did not properly consider the matters the Family Law Act 1975 (Cth) requires to be taken into account in determining the amount of time the baby should spend with its father.

Determining the ‘best interests of the child’ under s 60CC 5.35 Section 60CC creates primary and additional considerations that the court must take account of in determining what is in the best interests of a child (paramount principle). The primary considerations are contained in s 60CC(2). They include: the benefit to the child of having a meaningful relationship with both parents (see Sutton and Anderson [2014] FamCA 215 for an analysis of the ‘meaningful relationship’ in circumstances where there was intense family violence); and the protection of the child from physical and psychological harm. [page 202] The objectives of the FLA on the one hand aim to promote a meaningful relationship with both parents, however, the threat of violence may interfere with this objective. Section 60CC(2A) clearly states that the court is to place a greater weight on the issue of violence. Protection from harm: s 60CC(2)(b)

5.36 This section obliges the Family Court when making a parenting order to be alert to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Both historically and currently, in all too many matters before the Family Court allegations of violence are prominent. Despite legislative efforts to end this violence, to date little has succeeded. This is particularly disturbing in circumstances where a child is the object of the violence, or indeed is a witness to violence. It takes little imagination to understand that where there is family violence or sexual abuse, keeping the child safe will have particular relevance. Although we have discussed the Family Law Amendment (Family Violence and Other Measures Act) 2011 (Cth) in prior paragraphs, here we will consider the definition of violence in s 4AB of the FLA and the impetus for enlarging the definition to be more in keeping with a modern understanding of aspects of violence. In simple terms, the focus of the amendments to the FLA is to ensure that parenting orders reflect the best interests of the child, including the protection of the child from harm by addressing and reporting violence. In the matter of Christie and Holden [2013] FamCA 1009 there were competing applications for parental orders by the paternal and maternal grandmothers. The parents of the children had ceased to play any part in the proceedings concerning with whom their children were to live, spend time and/or communicate. In bringing down a judgment that the children live with the maternal grandmother and spend time with the paternal grandmother, Tree J referred to the danger of violence in the home of the paternal grandmother. There was no suggestion that the paternal grandmother had been violent

but rather members of the surrounding community. Tree J cited the definition of violence and related subsections (at [40]–[43]): ‘Abuse’ is defined in s 4 of the Family Law Act in the following terms: Abuse, in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child. Neither the term ‘neglect’ nor indeed ‘serious neglect’ appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The

[page 203] relevant definition of the word ‘neglect’ in the Macquarie Dictionary is ‘to be remiss in care for or treatment of’. ‘Family violence’ is defined in s 4AB(1) of the Family Law Act

in the following terms: 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 … or causes the family member to be fearful. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

5.37 Less simple, but perhaps of equal or greater importance, is the considerably broadened definition of behaviour that may constitute violence. Often victims of violence find it difficult to articulate the conduct that coerces them or causes them to fear for their safety. Accordingly, the non-exhaustive list of downright violence or coercive conduct in s 4AB(2) and (4) may give the victim a greater awareness and ease of explanation regarding the harmful behaviour to which they have been subject. Refer to s 4AB in its entirety.

In Mazorski and Albright [2007] FamCA 520 at [2], Brown J said: The provisions in the Act relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC.

See also Rushby and Bilsberry [2014] FamCA 286; Ramirez and Ramirez [2014] FamCA 153; Howard and Lipschitz [2014] FamCA 272; Fell and Hartell [2014] FamCA 111; Elvin and Daking [2014] FamCA 218.

5.38 Section 60CC(2)(b) of the FLA is closely related to s 61DA(2) and the provisions in Pt VII Div 11, in that all refer to any family violence that involves the child or a member of the child’s family. Family violence is, and should be, a factor of great importance in assessing the best interests and welfare of children. It is now well established that family violence may harm children even when it is not directed at them. The witnessing of violence between adults, whether the children are involved or not, can cause great fear, stress and damage. Similarly, violence between family members can have a very detrimental effect on the health and development of a child in a variety of ways. Apart from the physical and mental consequences, the use of violence to achieve an objective provides a very poor role model for a child. From the perspective we now have on family violence, it is shocking, rather than merely surprising, to read the finding in the following case. [page 204]

In Marriage of Chandler (1981) 6 Fam LR 736 at 737; FLC ¶91008 Nygh J said: [T]he court should refrain from making any finding,

unless absolutely necessary, which adversely reflects upon the self-esteem or integrity of each of the parties. A number of matters were placed before me which, it was alleged, were relevant to the issue of custody. One was the allegation that the husband was a violent man. Whatever may or may not have been the relationship between the parties themselves, as I have indicated in the course of the hearing, I am only concerned with the acts and conduct of the parents in so far as these directly affect the welfare of the children. There was no evidence of violence directly affecting the children, even if the wife’s allegations were accepted as true. … In this case unfortunately the emphasis in the evidence as it developed has been more on what the parents did to each other than on the behavioural patterns of the children vis-à-vis each parent. Perhaps my views may lead to reform in the attitudes of the legal profession in this regard — a realisation that a concentration on the faults of the other side is to a certain extent selfdefeating and in another sense extremely costly to the parties, both in time, in funds and in emotion.

These remarks were considered in Marriage of JG and BG (1994) 18 Fam LR 255; FLC ¶92-515, in which Chisholm J concluded that to the extent that these remarks support those propositions, they are inconsistent with the paramountcy of the child’s welfare and do not represent the present law. Obviously such propositions are inconsistent with recent case law and with the provisions of the Family Law Reform Act 1995 (Cth) and the 2006 amendments. In this case, the applicable principles were

summarised as follows and in the terminology of the time (at 263–4): 1.

In proceedings relating to custody, guardianship and access, evidence of family violence is relevant in so far as it assists the court in determining what orders will best promote the welfare of the children.

2.

The court will have regard to the fact that family violence may be directly or indirectly relevant to the children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.

3.

So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children.

4.

Where the evidence permits the court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child’s welfare, the court will make the findings.

5.

Where the court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the court to refrain from making the findings. If such a discretion exists, the court will exercise it on the basis of a consideration of whether the children’s welfare is most likely to be promoted by making or declining to make such findings.

[page 205]

Allegations of child abuse 5.39 In the leading case of M v M (1988) 12 Fam LR 606; FLC ¶91-979, the High Court provided authoritative guidelines as to the proper approach of the court in matters where there are allegations of sexual abuse of a child. The High Court’s statements would appear to apply also to other forms of alleged abuse. In the judgment of the High Court, it was emphasised that the essential task of the court in this type of matter is not to determine the truth of the allegations in the way a criminal court must do, but to treat the best interests of the child as the paramount consideration: see also Marriage of N and S (1995) 19 Fam LR 837; (1996) FLC ¶92655; Marriage of Irvine (1995) 19 Fam LR 374; Re Andrew (1996) 20 Fam LR 538; FLC ¶92-692; WK and SR (1997) 22 Fam LR 592; FLC ¶92-787; Marriage of A (1998) 22 Fam LR 756; FLC ¶92-800. The approach in M v M has been followed in subsequent decisions. In Lindsay and Baker [2007] FamCA 1273, Bryant CJ, on appeal, noted that the trial judge was correct in applying the reasoning in M v M. In her decision, Bryant CJ quoted the trial judge (Carmody J) (at [3]): The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court’s formulation in M v M [(1988) FLC ¶91-979; 166 CLR 69], where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding

that there is no unacceptable risk to the child if supervised contact is ordered. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.

See also Talbot and Wayans [2013] FMCAfam 84. The matter below concerned allegations of unacceptable risk of sexual/physical abuse by the father if the children spent time with him without supervision. In addition, the mother sought an order that she and her children be allowed to relocate to another state.

Partington and Cade (No 2) [2009] FamCAFC 230; (2009) 42 Fam LR 401; FLC ¶93-422 was heard by way of an appeal in the Full Court of the Family Court before Bryant CJ, Warnick and Boland JJ. This was an appeal from orders of Burr J. His Honour ordered that Ms Partington have sole parental responsibility for the children and that the children primarily [page 206] reside with her. Burr J did not make a positive finding that Mr

Cade had abused either of the children; however, his Honour did find that there was an unacceptable risk to the children if they spent unsupervised time with Mr Cade. Burr J also found that there was a significant and meaningful relationship between Mr Cade and the children. Burr J ordered that the children spend time with their father each alternate weekend in a supervised setting for a period of two hours (increasing to six hours in six months time subject to satisfactory reports from the supervisory staff). Burr J also refused Ms Partington’s application to relocate to New South Wales with the children and ordered that she return to Hobart immediately. The mother had left Tasmania with the children and had resided in New South Wales since December 2006, and subsequently re-partnered with Mr Bande. Ms Partington appealed Burr J’s orders for time to be spent between the children and Mr Cade and the orders requiring her relocation to Tasmania from New South Wales. The Full Court allowed the appeal. The Full Court stated Burr J had carefully, diligently and substantially considered the issues in relation to the matter. The Full Court determined that Burr J had not assessed Mr Cade’s parenting capacity in light of his underpinning conclusion of ‘unacceptable risk’. The Full Court considered this question to be highly relevant to Mr Cade’s parenting capacity and to the likely nature of the longer term relationship between the children and Mr Cade. The Full Court determined that Burr J should have addressed the significance and the implications of the possibility (as opposed to probability) that Mr Cade had sexually abused one of the children when assessing Mr Cade’s parenting capacity. The Full Court stated that in assessing unacceptable risk in the future, both probabilities and possibilities of risk can be taken into account, as long as the degree of likelihood of risk and the assessment of the likelihood of risk is properly taken into account in a reasoned manner by a judicial officer. The Full Court also determined that Burr J had not considered

the impact of the mother relocating from a well-established situation in New South Wales when the prospects of regular and unsupervised time between Mr Cade and the children and the benefits of such a time had not been properly assessed. The Full Court noted that it may be possible to avoid making a finding about whether or not abuse has occurred if the best interests of the child can be determined without the need to make such a finding. The Full Court also determined that a finding of unacceptable risk may be sufficient to found orders directed to the paramount consideration of the best interests of the child. The court noted that a finding of ‘unacceptable risk’ can in certain circumstances impede progress to a parent spending time with a child other than on a strictly supervised basis. The question of the mother’s relocation to New South Wales was sent back before a judge other than Burr J. The Full Court concluded that supervision on an interim basis of two hours was appropriate until the matter could be determined on rehearing, albeit with the father to attend in New South Wales rather than Tasmania for the purposes of spending supervised time with his children.

[page 207] In the following matter the evidence is shocking, but nevertheless the court must follow the legislative path laid down by Pt VII of the FLA in considering the ‘best interests’ of the child in question.

In Fan and Napoli [2011] FMCAfam 761 Altobelli FM introduced the matter as follows (at [1]–[11]):

During cross-examination the father explained … that he lived a ‘second life’ in cyber space. It was an online fantasy life in which he engaged in what he called ‘cyber-sex’, often assuming the persona of a woman. He became addicted to adult pornography and on-line chat rooms of a sexual nature. The father says that one day he clicked on a web link contained in an email sent to him expecting to see adult pornography. Instead there was child pornography. This case is about the consequences of these actions. [X], known as [X], is 5 years old. Her mother, a 45 year old [occupation omitted], lives in the [omitted] region of NSW, is the Applicant in this case. [X]’s father, a 46 year old [occupation omitted] living in Sydney, is the Respondent. [X] lives with her mother and currently neither spends time with her father nor communicates with him. This case is about whether, and if so to what extent, [X] should spend time and communicate with her father. The mother’s proposal, consistently held throughout this case, is that she should have sole parental responsibility, that [X] should live with her, and there be no contact or communication. The father’s proposal is contained in his Amended Response, filed 28 April 2011. The precise terms of this are reproduced in the first schedule to these reasons. In short he proposes equal shared parental responsibility, that [X] live with the mother, and that she spend time with her father initially on a supervised basis for gradually increasing periods of time, and eventually becoming unsupervised at age 9. The Independent Children’s Lawyer’s [ICL’s] proposal was, quite appropriately in this case, formulated at the conclusion of the evidence. The ICL proposed sole parental responsibility to the mother, that [X] live with her

mother, and have supervised time with her father for 4 hours 6 times yearly, such supervision to occur at a supervised contact centre. This is a complex case with substantial lay, expert and documentary evidence. Each parent and the Independent Children’s Lawyer was very capably represented. This case is ultimately a risk assessment exercise. Like many cases where it is alleged that a child is at risk from a parent, there are multiple layers of ambiguity in many aspects of the evidence. It becomes important, therefore, to carefully analyse all of the relevant evidence and to consider how this evidence all fits together. The mother’s case is that the father is a paedophile and that the risk to [X], even from supervised contact, is that she will be groomed by her father. Her case is that the father’s possession of child pornography was not inadvertent, and that he has greatly minimised before the court the nature and extent of his paraphilia (which Dr Q explained was relying on other than the normal range of sexual stimuli, and which included paedophilic fantasies and paedophilia). The father’s case is that even though he was addicted to adult pornography and to chat sites of a sexual nature on the internet, the receipt by him of child pornography was inadvertent, and the 518 images of child pornography found on his computer was not placed there by any deliberate action he took. The father appreciates the impacts of his past addiction on the mother and [X], but considers himself rehabilitated, and strongly believes he presents no danger to [X]. He longs for the restoration of the previously good relationship he believes he had with [X].

[page 208] The ICL’s case is that there is an unacceptable risk of abuse to [X] if she has unsupervised contact with her father. The mother is also highly anxious with the risk that [X] will be exposed to this. In these circumstances [X]’s relationship with her father can be supported by supervised contact several times a year. The parents married in September 2005 and separated in November 2008. Quite apart from the event described in these reasons, the marriage appears to have been a turbulent one. The mother has remarried, and her husband gave evidence. The father currently lives with his parents. Proceedings commenced in this court in early 2009. There ensued a series of interim orders including for supervised time. That order was ultimately suspended and the father has had no contact with [X] for over a year now. [X] was represented by her ICL, Ms Temelkovska. Associate Professor Q (henceforth called Dr Q or the expert) was appointed by the court as the expert in this case. The father was charged but not convicted of possessing child pornography. I propose to set out what I understand to be the applicable law relating to unacceptable risk of abuse, and as to what is in the best interests of a child. I will then examine the evidence in some detail. Under the heading ‘Applicable law’ his Honour said (at [12]): In determining parenting matters under Part VII of the Family Law Act the court must regard the best interests of the child as the paramount consideration: s 60CA. His Honour then examined in turn the provisions under ss 60B(1)

(a) and (b), 60CC, 60D, 61DA, 64(1)(a), 65DAA(1)(b) and (2)(d), 69ZT(3), 69ZV of Pt VII of the FLA and the objects and principles to be applied under those provisions. In setting the pathway to be followed in relation to the decision before him his Honour referred to several cases in which relevant principles had been established. Of major importance was the question as to whether allowing (x) to spend any time with the father (supervised or otherwise) would pose an ‘unacceptable risk’. In this regard his Honour referred to several cases in which ‘unacceptable risk’ was discussed in detail. His Honour stated (at [19]): In so far as this case is about unacceptable risk of abuse, a comprehensive statement of the applicable law is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892; (2005) FLC ¶93-235; (2005) 34 Fam LR at paras 92– 115. …: The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in [Briginshaw v Briginshaw (1938) 60 CLR 336] (now s 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’)) is discharged. Unacceptable risk test (a) What is meant by ‘unacceptable risk’? In his submissions before us counsel for the father has referred us to recent decisions of this court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a

[page 209]

dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC ¶92-655 at 82,709 his Honour said: (i)

The reality of sexual abuse

The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise. … It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour … said: [C]ourts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M: In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (s 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352 at pp 364–365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the

[page 210] child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463–464. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wideranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said: ‘The seriousness of an allegation made, the inherent

unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’ His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is wellfounded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all,

[page 211] in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental

matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (‘the Reform Act’) demonstrate some of the practical difficulties in applying the principles enunciated in M and M. In B and B [B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755] the trial Judge was found by the Full court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said: The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: ‘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. (at p 77,081) The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. … It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s 64(1)(a) of

the Family Law Act and Brown and Pedersen (1992) FLC ¶92–271.’ Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not ‘preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered’.

[page 212] One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J [(1996) 20 Fam LR 930] at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995–1996 through its Family Relationship Service Program. In K and B [(1994) FLC ¶92-478] the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967: With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account. In N and S and the Separate Representative [(1996) FLC ¶92-655] allegations of sexual abuse of a 4 year old child were made with the

child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows: Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in para 96) and said: Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.

[page 213] In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term ‘unacceptable risk’ and reviewed earlier authorities concluding ‘it is inevitable that Courts will have to make some effort to quantify the relevant risk’. He then said at 82,714: In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects

exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child? This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows: There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. The Full court in WK and SR [(1997) FLC ¶92-787] (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held: … In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at para 56 as follows: Accordingly it was put by Mr [M] that any finding that the

father had in fact been involved inappropriately with these children, or might have

[page 214] been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence. The Full court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the ‘concept of unacceptable risk is one that is far from settled in its application to many family situations’. May J, having found that the evidence in the case, ‘objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised …’ then referred to the difficulty associated with long term supervised contact and said ‘the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests’. Her Honour then said: Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in para 105,

do provide a structure or framework which may assist a trial Judge to assess future risks to a child. (b) The contact issue In Re W (Sex abuse: standard of proof) [[2004] FamCA 768; (2004) FLC ¶93-192] at 93,192 and in TF and JF at para 53 the court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship ‘ought, in most cases, be the course of last resort’. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full court in B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at 84,213–84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests. The practical difficulties in assessing an unacceptable risk are highlighted by May J at para 74 of TF and JF. Further, at para 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is

[page 215] not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that ‘long term supervision may not be in a child’s best interests’ and place emphasis on the need to move to ‘self management’ by parents and others availing themselves of the present restricted services. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the

circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

In WK and SR (1997) FLC ¶92-787; 22 Fam LR 592, the Full Court emphasised the standard of proof that applies in these cases at para 47: In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768; FLC ¶93-192, in referring to WK and SR the Full Court observed at paras 18 and 19: In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full court in WK and SR where the court emphasised the very high standard by which a court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error. 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 … remain conscious of this imperfection at all times.

[page 216]

In that same decision, the Full court made some important comments about expert evidence in the context of these cases, at paras 38 and 39: In Re W Abuse Allegations; Expert Evidence (2001) FLC ¶93-085 Nicholson CJ and O’Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 ‘… there are grave dangers in reliance upon expert evidence given in such circumstances’. Whilst much of their Honours’ rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.

His Honour then turned to the further evidence before him and stated (at [23]): There is no dispute between the parties that 518 images were found on the father’s computer which are classified as child pornography. Those images were not in evidence … There was, however, in evidence a description of the offending material (at [23]): 1.

Indicative: Non-Erotic and non-sexualised pictures showing children in their underwear, swimming costumes, etc, from either commercial sources or family albums; pictures of children playing in normal settings, in which the context organisation of pictures by the collector indicates inappropriateness;

2.

Nudist: Pictures of naked or semi-naked children in appropriate nudist settings and from legitimate

sources; 3.

Erotica: Surreptitiously taken photographs of children in play areas or other safe environments showing either underwear or varying degrees of nakedness;

4.

Posing: Deliberately posed pictures of children fully, partially clothed or naked (where the amount, context and organisation suggests sexual interest);

5.

Erotic Posing: Deliberately posed pictures fully, partially clothed or naked in sexualised or provocative poses;

6.

Explicit Erotic Posing: Emphasising genital areas where the child is either naked or partially or fully clothed;

7.

Explicit Sexual Activity: Involves touching, mutual and self-masturbation, oral sex and intercourse by child, not involving an adult;

8.

Assault: Pictures of children being subject to sexual assault, involving digital touching, involving an adult;

9.

Gross Assault: Grossly obscene pictures of sexual assault, involving penetrative sex, masturbation or oral sex involving an adult;

10. Sadistic/Bestiality: (a) pictures showing child being tied, bound, beaten, whipped or otherwise subject to something that implies pain; and (b) pictures where an animal is involved in some form of sexual behaviour with a child. In examining the police prosecution of the father in relation to the images found on his computer his Honour said (at [28]): Exhibit A6 is the transcript of the proceedings before Local court Magistrate [omitted] on 22

January 2010 being the last day of the criminal prosecution of [page 217] the father. The father was charged with possession of child pornography. The learned Local court Magistrate found that in accordance with the decision in Clark v R [2009] NSWCCA 112, the prosecution was unable to establish that the father ‘possessed’ child pornography. This much was conceded by the prosecution. The charge was dismissed. A detailed understanding of why the charge was dismissed is not necessary in the present context. In short there appeared to have been deficiencies in the prosecution case. There was no evidence of where the deleted images came from. There was no evidence of who deleted them or when. There was no evidence that the father arranged the images on the computer. The transcript of the evidence does create the impression that further enquiries could have been undertaken in the police investigation but, for some reason, this did not take place. An impression is not a finding of fact. The fact is that the charges were dismissed. An important aspect of the matter before Altobelli J was the question of whether in the event that the father was allowed contact with the child there was a danger of ‘grooming’ her in a sexual manner. In that context his Honour said (at [36]–[39]): The mother does not believe supervised contact will protect [X] from being groomed by her father, indeed

from being inappropriately, and sexually, touched. The mother is clearly well-informed about matters of sexual abuse of children as a result of her employment. Being informed, of course, does not necessarily make one objective. The mother was deeply concerned about a dress that the father purchased for [X] for her birthday last year. At the same time the father also purchased for [X] a handbag and a long-sleeved t-shirt. She was crossexamined about this. And in relation to her birthday present, it was a dress? — Yes. And a handbag? — Yes. … You thought it was inappropriate? — Absolutely … The dress is made of satin. It’s halter neck and backless. It’s sexualised. It’s not appropriate for a five year old who normally wears cotton dresses with little round necks. It’s a glamour — glamour outfit. It’s not appropriate for her. … grooming … apart from a sexualised satin halter neck, backless dress. But isn’t that just how you interpret this? Did [X] like the dress? — It’s not just how I interpret it. I would not buy that kind of dress for [X] [sic]; she’s only five years old. Little girls — this is a part of an industry that over-sexualises little people. She wears little cotton dresses that cover her up. She doesn’t need a V-neck, sexy, backless, halter neck thing that will show her little breasts or whatever they’re called at that age. It’s not appropriate for her. I wouldn’t buy it; no member of my family would buy it for her. It was not appropriate. The fact it came with a handbag, it was almost like, you know, you’re going to put her in a beauty pageant somewhere, okay?

When Counsel for the Independent Children’s Lawyer cross-examined the mother on this issue the following exchange occurred: Now, do you suggest that your former husband sent, via the

independent children’s lawyer, to [X], a dress that he must have known was deliberately seductive, if that’s what you’re suggesting?

[page 218] — I actually think that it’s his lack of awareness of it that’s the problem. All right, so you’re saying it’s not that he thinks that this is a form of grooming her but, rather, that he doesn’t pay enough attention to the gifts that he gives or the way he behaves. Is that your —? — I would like to think that it was ignorance. And that he — because if it were that he was deliberately trying to groom [X] by sending her the dress or sending her a dress that was deliberately seductive, it would be a very stupid thing to do, wouldn’t it, to send it via the independent children’s lawyer. Do you agree? — Yes, it would, yes.

His Honour had his own opinion of the dress. He said (at [39]): The mother had previously confirmed that the gift had been approved by the Independent Children’s Lawyer. Indeed the dress was brought to court and I inspected the same. It is a polyester halter neck dress but I find that it is not ‘a sexualised satin halter neck, backless dress’. Whether the mother has over-reacted to this incident is very much linked to whether the mother’s concerns about the father are reasonable. That depends on other evidence. Altobelli J then considered evidence from numerous experts in the field of psychiatry, psychology, sexual deviancy and other experts. For the most part their evidence was damning in relation to the ability of the father to turn his attention from viewing child pornography and the impact of this on the child. Altobelli J turned his mind as to whether his decision with regard to any order made should reflect supervised time or no time of the child with the father. He said (at [158]–[159]):

Having regard to the assessment of risk I have made above, should [X]’s time with her father be supervised, and if so, how and when, or should there be no contact at all? Supervision is certainly the most that I would countenance for the time being. The father’s proposal is not in [X]’s best interests because it contemplates eventual unsupervised contact. Having asked the question, his Honour first turned his attention to what was described as the mother’s ‘histrionic’ personality. His Honour stated (at [160]): … based on my own observations of the mother over six days — she has histrionic personality traits and is highly distressed. Having regard to the findings I have made about the father, her distress is entirely understandable. Whilst the mother’s own psychologist suggests she will eventually cope in an emotional sense with supervised contact, this may well be an optimistic assessment and may well have been predicated on an assumption that the mother’s concerns had no objective basis. The mother is concerned that the father is grooming [X]. She will hardly be reassured by the findings I make. Whilst I find little evidence to support a finding that the father has been grooming [X], I cannot rule out the risk that it will happen. His Honour then turned to an assessment of the father (at [161]): The risks to [X], even of supervised contact, are directly proportionate to the risk that the father’s interests in child pornography will progress. I believe that risk is real and substantial. Quantifying it is, of course, impossible. I am satisfied from all the evidence that he has, at the very least, minimised his interest in child pornography.

At most, he was completely dishonest about it. I do not accept his explanation about how 518 [page 219] images of child pornography came onto his computer. I do not accept that it was inadvertent, or limited to one occasion only. He does not accept that he has an issue with child pornography beyond accepting that he is fearful that he will be tempted. Without acceptance of the problem there is heightened risk. Clearly he has not received any therapeutic treatment for this, because he does not believe he has a problem. In the same way as Dr Q believes that the father is not dealing with issues relating to his sexuality frankly, I find that he is not dealing with the issue of child pornography frankly. This means that the risk of harm to [X] is so unacceptable that, together with the other matters to which I have referred, there should be no contact at all. The following orders were made: (1) The Mother has sole parental responsibility for the child, [X], born [in] 2006. (2) The child live with the Mother. (3) The Mother is restrained from making critical, negative or derogatory remarks about the Father or members of his family in the presence or within hearing of the child and the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of the Father’s family in the presence or within hearing of the child. (4) The Mother is to provide the necessary authorities

to the Principal of any school attended by the child to ensure that the school forwards to the Father copies of the child’s school reports as they fall due. (5) The Mother is to keep the Father advised of important medical issues and emergencies in relation to the child.

Henley and Beauman [2011] FMCAfam 340 before Coates FM considered allegations of inappropriate behaviour by a grandmother of a child. The judgment was a very short one, but Coates FM made it plain that it was one which would suffice until a proper trial with all relevant evidence could be arranged. In June 2010 parenting orders were made by consent for the children of the marriage, (X) born in 2000 and (Y) born in 2004. Under those orders the children were to spend time with the father each alternate weekend after school from Friday to Monday and each alternate Wednesday. On 17 March 2011, the mother filed an application in a case seeking an injunction restraining the father from bringing the children into contact with the paternal grandmother, Ms B. His Honour stated (at [4]–[7]): The mother alleged that on or about 23 January 2011, [X] began making disclosures about sexual matters in that the grandmother had: a)

Made him sleep in her bed;

b)

Bathed him and washed his genitals;

c)

Taken him into the shower and washed herself between the legs;

d)

Told him to get down and do a ‘nudie crawl’;

e)

When at the clothes line, ordered him to take his dry clothes off so that she could hang them on the line and then to run to the laundry to wait for her; [page 220]

f)

Would sleep with her hand on his thigh;

g)

Forced him to look at her undressed; and

h)

Has placed her fingers inside the elastic of his underpants and wriggled her fingers up and down and that then threatened the child with words or words to the effect ‘don’t even think about telling anyone about this bold boy or there will be trouble big time’.

The mother also states the child has revealed that the grandfather has stated to the grandmother when the child has been in the bed that ‘this is sick’. It is also alleged the grandmother has told the child not to complain and ‘nothing will happen anyway, your mother’s useless, your father’s under my control and Pop won’t say a word’. The allegations are strongly denied by the father and the grandmother. Evidence was given that the matter was in the hands of the police, but the matter was ongoing and no conclusions were available to the court on the day of the interim hearing. In relation to the lack of concrete evidence before the court Coates FM stated (at [29]–[30]): While I am to resolve on the evidence what the risk is and what the magnitude of that risk is, on occasions, when for example a police investigation is underway

such as appears to be the case here, I am not in possession of all relevant evidence. If I knew with certainty that a police investigation had ceased and if I knew the outcome of that investigation I would be in an informed position to assess the risk to the child, if any. The mother’s case was that the child could spend time with the father pursuant to the existing orders, only if the father gave an undertaking to keep the child away from the grandmother. Coates FM considered M and M (1988) 166 CLR 1235 and the risk to the child and stated (at [33]): Because I do not know the state of the investigation and because I do have to assess a risk and the magnitude of a risk I intend adjourning the matter for a period and appointing an Independent Children’s Lawyer.

The court was in no doubt as to the risk posed to the children in the matter following wherein the Independent Children’s Lawyer was appointed until children aged nine and seven reached the age of 18 — an unprecedented situation and a quite extraordinary decision.

The matter of Stacey and Woden [2015] FamCA 1107 before Benjamin J concerned the parenting arrangements for nine-yearold G and his seven-year-old sister D. The child G lives with his father and spends time with his mother occasionally. The child D spends equal time with each of her parents. There were allegations that the children were at risk of sexual abuse in the unsupervised care of their father. The Child Protection Services (CPS) had completed their

enquiries and reported to the mother: ‘Based on the information provided to CPS during our investigation and [page 221] information from police investigation, [we have] substantiated that the children are at risk in their father’s care’ (at [46]). Under the circumstances, the mother’s submissions to the court, expressing that ‘the arrangement [unsupervised time] has worked well and I have not any concerns for the welfare of the children whilst this arrangement has been in place’(at [49]) appear very odd and not in keeping with the evidence before the court. She also said she believed the children were safe in the father’s care. The evidence of the mother was untested by cross-examination. Despite both parties consenting to the current parenting arrangements continuing, Benjamin J considered the concerns regarding the father to be ‘a justiciable controversy requiring the court’s intervention’ (at [66]). The optimistic views of the mother were strongly contradicted by the evidence of Dr L, an expert in the area of child sexual abuse. His Honour said (at [40]–[41]): … Dr L went on to express concern that the parents had recommenced unsupervised time. She noted risk factors, including multiple disclosures by D that her father had abused her, sexual behaviour exhibited by the children, a cluster of psychological symptoms consistent with childhood sexual abuse trauma. She noted the father’s self-reported high libido, interest in teenage partners, teaching sexual pleasure and his reported high use of pornography. She made some concerning observations of the father’s patterns of behaviour. Dr L recommended that the contact between the children and their father remain supervised until D

reached an age where she can better articulate her thoughts and emotions and has the capacity to selfprotect. It is against this background the father applied to the court seeking to have all parenting orders discharged and proceedings dismissed. The mother ceased to participate in the proceedings and instructed her lawyers to seek leave to withdraw. The Independent Children’s Lawyer, however, sought injunctive orders protecting the children from unsupervised time with their father. He submitted ‘that it was open to the court to make a finding that one or both of the children are at risk of sexual abuse in the unsupervised care of the father’ (at [12]). To bring the proceedings to a close would continue the existing arrangements that involve both children spending extensive unsupervised time with the father. The following order was couched in wide terms: 6.

The continuing powers of the Children’s Lawyer’s shall include:

Independent

(a) informing the children of this order within twenty one (21) days from the date of this order; (b) liaising with the children’s schools and medical practitioners, including providing them with a copy of this order and the reasons upon which it was based; (c) forwarding a copy of this order and the reasons upon which it was made to State Welfare authorities and liaising with and if necessary further reporting to State Welfare authorities; and (d) requiring (if necessary) the children to be interviewed by the Independent Children’s Lawyer or such other person deemed

appropriate to the Independent Children’s Lawyer. Given the evidence regarding the risk of sexual abuse of the children, Benjamin J was satisfied that unsupervised time with the father presented an unacceptable risk [page 222] of abuse of the children. His Honour also noted that the evidence is untested, and that he was not satisfied that the children are necessarily at risk of sexual abuse by the father. He noted, however, the court’s obligation to protect the children from potential harm. In order to fulfil this obligation the court made a series of protective orders. Restraining orders were implemented forbidding the parties from abusing the children or exposing them to pornography. An injunction was made precluding the exercise of parental responsibility by the father. The Independent Children’s Lawyer was permitted to continue to carry out his obligations to ensure the children’s continued protection from harm. The court discharged the previous interim orders as they were ignored by the parties. In a profound statement relating to the protection of children generally, Benjamin J said (at [4]): Each and every member of the community and each and every organisation are or should be obliged to report, protectively respond and protect children from abuse. That community obligation applies to all, including parents, relatives, health care professionals, teachers, churches, social groups, and Independent Children’s Lawyers; it must include State and Federal Courts and Tribunals.

And (at [8]): Where a Family Court observes a risk to a child caught between the two systems it should not turn away from such children in the hope the State child protection system will intervene. It should, within the limited jurisdiction and powers which the Australian Constitution and Commonwealth Parliament have given to it, provide a level of protection. In addition, it should use the authority of the Court through the voice contained in its reasons to urge State child protection authorities to engage and maintain ongoing long term monitoring and supervision of particular families, such as this one. See also Enmore and Smoothe [2014] FamCAFC 131; Gahen and Gahen [2014] FamCAFC 122; Mertens and Mertens [2014] FamCA 475; Carpenter and Carpenter [2014] FamCAFC 100; Dover and Dwight [2014] FamCA 346; Phitzner and Hollas [2014] FamCA 344.

Whenever family violence is alleged, the person making the allegation must file a notice of risk on the prescribed court form pursuant to s 67Z of the FLA. The court must take prompt action when such allegations are made: s 67ZBB. The court may consider whether or not to request a report and the intervention of the state’s welfare agency: s 69ZW. See Chapa and Chapa [2013] FamCAFC 52; Gastana and Mohammed Salah [2013] FamCA 113; Kitson and Black [2014] FCCA 1332; Becker and Becker [2014] FCCA 1154. Family violence orders 5.40 Section 60CC(2)(b) of the FLA requires the court, in making decisions about children, to consider the need to

protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, neglect or family violence. Section 60CC(3)(k) requires the court to have regard [page 223] to any family violence order that applies to the child or a member of the child’s family, if: the order is a final order; or the making of the order was contested by a person.

In Marriage of CW (1998) 22 Fam LR 750; FLC ¶92-802, the trial judge had made a residence order in favour of the father of two children aged five and seven years. This order was made because the mother was living in a de facto relationship with a man who had been violent to her. The trial judge, Morgan J, had explicitly taken into account the former s 68F(2)(g) and (i). Nicholson CJ repeated her Honour’s statement (at 754): Sub-paragraph (i) requires me to consider any family violence involving a child or the member of a child’s family. While there is no evidence of actual violence inflicted upon the children, I am satisfied on the balance of probabilities on the evidence before me that there is an unacceptable risk that these children will be exposed to violent behaviour on the part of Mr H if they remain residing with the wife. I propose to order that the children until further notice reside with the husband. The Full Court, Nicholson CJ, Fogarty and Baker JJ, dismissed

the mother’s appeal, with Nicholson CJ expressing particular agreement with the trial judge’s view and comments.

Deiter and Deiter [2011] FamCAFC 82 concerned an appeal before Finn, Thackray and Strickland JJ in the Full Court of the Family Court. The mother was 24 years old and the father was 26 years old. Neither had paid employment, although the father had been receiving workers’ compensation for many years. The mother with children aged five, three and one years of age unilaterally relocated interstate due to the father’s violence. The mother alleged that on the day of their return to Sydney after spending Christmas with the mother’s parents in Perth the parties had had an argument, ending in violence witnessed by the children. The mother was granted an interim apprehended domestic violence order and the father was charged with assault. On 20 January 2010, the mother took the children back to Perth. Thereafter, the father sent her numerous text messages, which Kaeser AM described as ‘innocuous to strange, loving, pleading and threatening’. The mother commenced proceedings in Western Australia on 3 March 2010. The matter at first instance was heard in Western Australia by Kaeser AM. Judgment was delivered on 21 July 2010. The orders, which were the subject of this appeal, were as follows (at [14]): 1.

The children … live with the [mother] in Sydney.

2.

The [mother] have a period of 28 days from the date of these orders to relocate the said children to Sydney.

[page 224] 3.

These proceedings otherwise be transferred to the Federal Magistrates Court in Sydney, with the proceedings to be listed for hearing at the first available opportunity.

The mother appealed to the Full Court against an interim parenting order made by Kaeser AM requiring the mother to return the children to Sydney and live there until the final hearing. The Full Court said (at [51]): … we are of the view that consideration should have been given to the likely delay in setting the matter down for a final hearing in either Perth or Sydney, including the prospects of an expedited final hearing. Given the advantages his Honour identified as being associated with the children remaining in Perth, the outcome might well have been different if the final hearing could be brought on without great delay. The Full Court next took up the issue (at [56]) that the decision ‘to require the mother to live in Sydney pending a trial in Sydney was made in the absence of important context’, being a specially convened hearing to first deal with the mother’s allegation of violence. The court said (at [55]): No consideration appears to have been given to conducting a discrete hearing to deal with the allegations of violence before determining the application for the return of the children or the secondary issue concerning the venue of the final hearing. The mother argued that the Acting Magistrate gave insufficient weight to her allegations of family violence and to the need to protect the children from physical and psychological harm from

being exposed to family violence. The Full Court said (at [60]– [61]): … his Honour should have placed much more weight than he ultimately did on the mother’s evidence. In our view, his Honour needed to do this in order to attempt to assess the risks to the mother and children if the mother was required to take up residence in closer proximity to the father (and placed in a position where potentially she had to facilitate eight handovers every week). The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements — the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court. The court then referred to the Full Court’s approval in Goode and Goode (2006) 36 Fam LR 422; 206 FLR 212; [2006] FamCA 1346 of a statement made in Cowling and Cowling [1998] FamCA 19; (1998) FLC ¶92-801 that at some interim hearings ‘it may also be necessary to consider child protection issues’. The court added this (at [72]): Whilst we accept that Ms B’s evidence had not been tested, in giving consideration to the risks involved, we consider some weight should have been placed on evidence given by a witness who the father himself thought sufficiently reliable to approach to provide an affidavit …

The Full Court examined both the uncontested and contested evidence before the Acting Magistrate and said (at [87]): In our view, given the uncontested evidence, unless and until the mother’s evidence had been tested and discounted, it would not have been appropriate to consider any [page 225] arrangement for the children which would involve the mother coming into contact with the father. On the contrary, it was most important that any interim orders be crafted to preserve the mother’s safety, not only for her protection, but also to ensure the children were not exposed to family violence. The Full Court concluded as follows (at [90]): [H]is Honour erred in deciding that because the mother was proposing unsupervised time, it was not necessary to make orders to protect the children from family violence. We further [conclude] that his Honour erred in failing to place any real weight on the evidence of the mother as to the issue of violence. Had proper weight been given to that evidence, his Honour may have considered that it outweighed the other benefits he saw as being associated with the return of the children to Sydney. The court added (at [96]) that ‘it would have been open to his Honour to find that the father could move to Perth pending the final hearing’ and (at [102]) that there was ‘merit in the mother’s complaints about the priority afforded to the father having a meaningful relationship with the children pending a final hearing’. The court continued (at [102]):

It was possible the father had a good relationship with the children, and it is possible that there would be an adverse impact on the children of being further separated from him. However, these could not be taken as given, in the way his Honour clearly did.

When there is evidence that violence has been committed by both parents and there are apprehended violence orders against both, the task of the Family Court in making parenting orders is made more onerous. In the following matter the court made orders inconsistent with family violence orders. This was said to be necessary in promotion of the best interests of the child in question.

In Brainard and Wahlen [2011] FamCA 610 Austin J heard parenting proceedings in a Magellan case where parenting orders would be inconsistent with the terms of family violence orders each party had obtained against the other. Austin J determined (at [106]–[114]): … family violence orders are in existence. One protects the father from the mother, and the other protects the mother from the father. The child is protected under both orders. One part of each family violence order is inconsistent with the existing interim parenting orders, the current informal parenting arrangement reached by the parties, and also the final parenting orders proposed by the parties and the Independent Children’s Lawyer in these proceedings. Paragraph 5 of both family violence orders provides as

follows: The defendant must not approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.

The ‘defendant’ is of course the party respectively bound by the order. [page 226] The ‘protected persons’ are, in each case, the party protected by the operation of the order and the child. The family violence orders preclude the parties from contacting one another to discuss issues relevant to the child because they are only permitted to contact one another at all via their legal representatives. Although the orders permit the parties to communicate directly pursuant to orders made under the Act that is only for the limited purpose of ‘counselling, conciliation, or mediation’. The parties can communicate directly in writing, but only by agreement, and the parties would breach the family violence orders by contacting one another in order to try to reach such agreement. The family violence orders even preclude the child from living, spending time, or communicating, with the parties. That is because the child is designated as a protected person under each of the orders, and the parties are bound by the same restrictions upon their interaction with the child as they are with one another. The literal terms of the family violence orders are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence

orders and explain how those parenting orders will operate, as required by s 68P(2)(a), (b) of the Act. Consequently, the following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c), (d) of the Act: a.

The parenting orders are inconsistent with paragraph 5 of the family violence orders because they require the mother and father to contact and approach one another, and for the child to approach and contact each parent.

b.

It is necessary to make parenting orders which are inconsistent with paragraph 5 of the family violence orders in order to promote the child’s best interests.

c.

The child’s best interests are promoted by her living, spending time, and communicating, with the parties. That will be aided by the mother and father having contact with one another, in person, by telephone, and in writing, to ensure that occurs.

d.

The parenting orders set out how the child is to live, spend time, and communicate with, the parties.

e.

The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), 3, 11, or 12 of the two family violence orders, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence orders may be consistently obeyed.

f.

Contravention, variation, or revocation of the family violence orders will be dealt with by prosecution or application in the Local Court of NSW.

g.

Contravention or variation of the parenting orders will be dealt with under the terms of the Act.

The effect of past violence by the father was an important aspect of the following case. On the one hand it may be in the best interests of a child to have a relationship with a formerly violent parent, but on the other hand the parent who is the victim of violence may suffer mentally. Although the mother did not disagree that the child and father should have a relationship when the child was older, there were questions raised as to the effect that would have on the mother’s mental state. [page 227]

In Zamojski and Hale [2011] FMCAfam 647 Sexton FM reviewed the law and issues relevant to a parenting application in respect of a seven-year-old child by a father who had not seen the child since the child was 11 months old. Nor had he paid child support in that time. Those issues included the likely impact of reintroduction on the mother’s emotional state; the father’s capacity to sustain a parental role if reintroduced to the child; his capacity to manage reintroduction sensitively; and relevant s 60CC issues (under the FLA). The father’s application for an interim order was granted, the order setting out a program of consecutive monthly meetings with the child under the supervision of a contact centre; and a number of incidental orders, including the father’s attendance on a clinical psychologist at least fortnightly during the period of the adjournment. In reaching a decision Sexton FM examined some of the issues in question. Her Honour stated (at [24]–[25]): [X] does not know the Father. He has not spent any time with him since he was 11 months of age. [X] is living in a happy and stable family situation with the Mother and

Mr L and progressing well. The question in this case is whether it is in [X]’s best interests to be reintroduced to the Father at this time. If the answer is yes, then the parties agree that [X] would spend time with the Father initially on a monthly basis, under supervision in a contact centre. On the question of whether time should start, the evidence raises a number of critical questions: a.

Would orders requiring [X] to spend time with the Father so seriously affect the Mother’s emotional state, that [X] would be adversely affected? One of the issues here is whether or not the Mother is capable of and/or willing to support [X]’s reintroduction to the Father.

b.

Is the Father likely to sustain a regular supervised time arrangement, and if not, what is the likely effect on [X]?

c.

Does the Father have the capacity to behave in a sensitive and restrained manner towards [X] and towards the Mother?

Evidence was given (at [28]–[29]) on behalf of the mother by a psychologist who reported that as a result of the father’s past violence to her she suffered from: i.

Decreased and interrupted sleep; nightmares and high anxiety when trying to sleep.

ii.

Intrusive memories regarding her experiences which cause strong reactions including: shaking, heart racing, shortness of breath when recalling scary experiences when living with the Father.

iii.

Intense physiological reactions when talking about the Father and heightened fear at his possible motive and reactions to her if [X] should have

access to him. iv.

Hypervigilance to perceived danger. Unwilling to engage in meeting unfamiliar men as feels cannot trust them.

The mother was referred to a second clinical psychologist, Ms B, who reported (at [29]): [The Mother] presented for assistance with symptoms of post-traumatic stress related to a past abusive relationship. These include re-experiencing symptoms (such as recurring distressing dreams and intense emotional and physiological responses to reminders of her ex-partner), persistent avoidance of reminders of the relationship (such as thinking or talking about it), increased arousal (such as disrupted sleep, diminished concentration, and hypervigilance). [page 228] The precipitants of these symptoms include recent contact with her ex-partner [the Father]. In relation to the suitability of the father as a parent, her Honour said (at [75]–[76]): The Father deposes to dramatically changing his lifestyle approximately four years ago. He claims to have given up drinking to focus seriously on guitar playing and to establish a relationship with [X]. He says he has been helped by becoming involved in the Restitution Ministry of the Seventh Day Adventist Church. He believes he has matured. The Father has completed a Triple P parenting course, an 8 week Anglicare parenting programme, a course in Anger Management, and a Parenting After Separation course.

… I accept the Father’s evidence that his attitude has changed and that he would like now to have the chance to contribute to [X]’s life in a positive way, though I am highly critical of his failure to meet his financial obligations towards [X]. When discussing whether the father would be sensitive to the issues raised by the grant of time with his son, her Honour said (at [39]–[40]): The Father makes no secret of the fact that he believes the Mother to be deceptive and manipulative. In a questionnaire provided to the Independent Children’s Lawyer in December 2009, the Father says: I am very concerned that whilst [Ms Hale] is a good mother in terms of structure — sleep patterns, bathing, feeding, clothing, playing with him etc however [Ms Hale] builds a web of lies and deceit — she misrepresents everything and only tells the truth occasionally when it serves her purpose.

In his interviews with Mr O [a Senior Family Consultant], he made a number of derogatory remarks about the Mother. However, he reassured Mr O that he would not make [X] aware of his opinion of the Mother. The Independent Children’s Lawyer submits that the Father is insensitive, has failed to accept responsibility for his own actions, and has shown no restraint when talking about the Mother in interview with Mr O or in oral evidence.

Section 60CF — informing court of relevant family violence orders 5.41 Section 60CF of the FLA sets out the responsibility of the parties to the proceedings to inform the court of any relevant family violence order. Section 60CF(1) provides:

If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order. [emphasis added]

In contrast, if a person having the knowledge of the family violence order is not a party to the proceedings, that person may inform the court of the family violence order: s 60CF(2). In spite of s 60CF(1), it is interesting to note, however, that under s 60CF(3) a failure to inform the court of a family violence order will not affect the validity of any order made by the court, unless it is inconsistent with the family violence order. [page 229] Court to consider risk of family violence: s 60CG 5.42 Section 60CG requires the court to ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence. The court must do so to the extent that it is possible, consistent with the child’s best interests remaining the paramount consideration. Section 60CG(2) provides that the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order. The Magellan Program 5.43 Many of the cases that the Family Court has to decide at a hearing involve serious allegations of abuse, and it has become something of a child protection court. It is extremely

important to all the parties concerned that these matters are properly investigated and resolved. To deal with them, the Family Court has developed the Magellan Program, which requires both intensive management of cases by the court and cooperation from the Department of Community Services. When an application for parenting orders is filed and there are allegations of serious physical and/or sexual abuse the case is given to the Magellan Registrar who considers listing the matter in the Magellan Program. Each registry has a team made up of a judge, a registrar and a family consultant who deal with Magellan cases. In 2007 an evaluation of the efficacy of the Magellan Program was carried out by the Australian Institute of Family Studies. A statement from that study encapsulates the worth of the Magellan Program to children suffering abuse: In family law disputes, the importance of Magellan is that it is an integrated case-management system that works to reduce trauma for children and that keenly focuses the evidencegathering and trial processes on ensuring the best outcomes for children who may have been abused or may be at risk of abuse.2

Additional considerations: s 60CC(3) 5.44 There may be some instances where these additional considerations may outweigh the primary considerations. For example, the court may have a case of a teenage Indigenous child who wants to keep living with a parent to maintain their connection to traditional culture. The other parent who lives far away and is unable to travel regularly also seeks an order that the child lives with them. They also have demonstrated that they will not facilitate connection with culture. In such a circumstance, the court may well decide

that, for that particular child, the additional considerations may effectively outweigh that consideration and that it would not be in the best interests of that child to change the parent with whom they live. The court may consider other ways in which the child and parent can maintain a meaningful relationship. [page 230] Brown J in Mazorski and Albright [2007] FamCA 520 provides a very useful synopsis of cases discussing that which may constitute a ‘meaningful relationship’ between parent and child. The matter before her Honour dealt with a successful application by a parent to relocate with her child, but the definition of ‘meaningful relationship’ contained therein has a very broad application under Pt VII of the FLA. Only those paragraphs from her Honour’s judgment directly discussing a ‘meaningful relationship’ are included below.

Her Honour stated (Mazorski and Albright [2007] FamCA 520 at [15]–[26]): Before me no counsel submitted that the legislative changes have introduced an onus on the party seeking to relocate a child’s residence, or that the ultimate test is other than the best interests of the child. There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application,

require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim. In W and S [2006] FamCA 1094 Faulks DCJ considered an application by a mother to relocate a child’s residence from ACT to NSW. Faulks DCJ outlined what he saw as the proper approach to be undertaken in relation to relocation cases under the amending legislation. In his Honour’s view, the approach to be followed in dealing with ‘children’s matters’ had become more complicated as a result of the amending legislation; he made clear his view (at para 24) that: … the law has changed enough it seems to me to warrant a departure from the well trodden path that he so skilfully documented and signposted.

His Honour was referring there to a decision by Carmody J in Walls and Robinson [2006] FamCA 25; (2006) FLC ¶93-251 where his Honour carefully analysed a raft of decisions relating to relocation cases. Having considered Carmody J’s findings about the desirability of maximising contact between a child and both parents, and his discussion of whether the relationship with a contact parent can still be maintained at a ‘good and functional level’, Faulks DCJ went on to consider the relevance of that decision to the definition of ‘meaningful relationship’ contained in s 60CC(2)(a). At para 27, after noting that the term ‘meaningful relationship’ must necessarily be a relative one, his Honour said: Nevertheless, it is a word deliberately inserted by the legislature and it is a word inserted after (emphasis in the original) his Honour’s decision had been made. Although it is somewhat naive to express it so (except in a legal sense) the legislature could be taken to have had notice of the way in which the law had been interpreted previously. It could therefore be assumed that the word ‘meaningful’ means something other than his Honour’s phrase of

‘good and functional’ otherwise those words might reasonably have been used instead of ‘meaningful’. This bears upon my decision in this matter.

With respect to Faulks DCJ, I cannot agree with that analysis. I can find no authority to support the proposition that the legislature should be deemed to have notice of a (or indeed all) decisions of trial judges in which legislative provisions are discussed and should be deemed to have intended that knowledge to inform its choice of words in a bill. Clearly, if legislation is drawn, and stated to be drawn (as it sometimes is), to [page 231] overcome a particular judicial finding or implement a judicial recommendation made in a judgment, the situation would be different. However, I can find no reference to Carmody J’s finding (about a good and functional relationship in Walls and Robinson) being relevant to the definition of ‘meaningful relationship’ in the second reading speech, the recommendations of the House of Representatives Standing Committee on Legal and Constitutional affairs which considered the exposure draft of the bill or the explanatory memorandum or revised explanatory memorandum which accompanied it. In C and T [2006] FamCA 1198 Strickland J determined a case involving a proposed relocation from Australia to the United Kingdom. His Honour found, at para 116, that the changes brought about by the Family Law (Shared Parental Responsibility) Act did not alter the approach to be taken to these cases and that the assessment of the competing proposals of the parties must still be carried out by reference to Part VII of the FLA. However, his

Honour noted that the object, principles and factors to be taken into account in determining what is in a child’s best interest, and the presumption of equal shared parental responsibility, may very well affect the outcome in individual cases. In summary, his Honour found (at para 223) that: It is imperative that these objects, principles and considerations (in s 60B) be given appropriate weight, but they do not raise a presumption against relocation, and the best interests of the child remains as the paramount consideration.

In a subsequent judgment, M and W [2006] FamCA 1414, Faulks DCJ referred briefly to the definition of ‘meaningful relationship’ saying (at para 35): The question of what constitutes in the circumstances a meaningful relationship is one not defined by the Act. The definition of substantial time with a parent is one that relates to significant times, rather than to the amount of time, and does not provide any particular assistance in determining what a meaningful relationship is.

In H and M [2006] FamCA 1071 Strickland J touched on the meaning of ‘a meaningful relationship’ when he said, at para 101: There is no issue here that a meaningful relationship with a mother and the father will benefit the child. The child will of course live with the mother and spend time with the father, and although the dispute centres around the extent of the time that the child should spend with the father, that alone does not determine whether there will be a meaningful relationship or not. Other important factors include how the time is spent and the input of the parent during that time.

The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of

children and encourage a child-focused approach. The paragraph continues: The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words ‘meaningful involvement’. At para 128 discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting: [page 232] The Government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

… The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 1993) defines ‘meaningful’ as ‘full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system’. ‘Meaning’ is defined as ‘having intention or purpose; chiefly with a

qualifying adverb (as well-meaning)’. A second definition is ‘conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive’. These definitions are repeated and further fleshed out in the Oxford English Dictionary (Second Edition, Clarendon Press, Oxford 1989). It defines ‘meaning’ (‘in generalised use’) as ‘significance’. The examples provided take the matter no further. The Macquarie Dictionary (Fourth Edition, Macquarie, 2005) defines meaningful as ‘full of meaning; significant’. Within the definitions of meaning, the relevant one defines the word as ‘expressive or significant: a meaning look’. What these 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.

Aboriginal peoples and Torres Strait Islanders are referred to specifically in s 60CC(2)(h) of the FLA. The subparagraph provides that the court must take into account the right of an Aboriginal or Torres Strait Islander child to enjoy his or her

culture, and the likely impact that any proposed parenting order will have on that right. This paragraph supports recommendation 4 in the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. Views of the child: s 60CC(3)(a) 5.45 Section 60CC(3)(a) provides that in determining what is in a child’s best interests, the court must consider, among other factors, any ‘views’ expressed by the child and any other factors that the court thinks are relevant to the weight it should give to the child’s ‘views’. Unlike the previous consideration of the child’s [page 233] wishes, the amendment recognises that a child may not necessarily want to express a ‘wish’ about which of his or her parents the child will live with or spend time with. It is intended that ‘views’ will also capture a child’s perceptions and feelings, and will allow for any decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live with or spend time with. It is intended that references to a child’s ‘views’ will not exclude a child expressing his or her ‘wishes’. Replacing references to a child’s ‘wishes’ with a child’s ‘views’ is also consistent with the wording in Article 12 of the UN Convention. Children are not required to express their views if they do

not choose to do so: s 60CE.

In Aiken and Aiken [2011] FMCAfam 910 Harman FM (as he then was) granted leave for a 16-year-old child, the eldest of three children, to attend court with his parents in the following terms (at [2]): Before the court at the time of judgment are each of the parents and their Counsel and with the consent and agreement of each parent their eldest child [X] who is 16 years of age. Leave has been granted for him to be present and arising not only from his age but his statement to the Family Consultant, who these young people have seen this morning, that he ‘wants to have the reasons for the decision explained’ to him. That would appear entirely appropriate having regard to both his age and level of understanding and consistent with the obligation created by Art 12 of the International Convention on the Rights of the Child being: a)

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.

b)

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.

In a recent matter, Sandford and Cobb [2016] FamCA 11, Forrest J ordered a 10-year-old boy and his eight-year-old sister to have contact and counselling with their father. Both children were adamant in stating a view they did not want to see their father

with whom they had spent little time from a young age. The mother had never supported or encouraged the children’s relationship with the father and had moved the family away several times. In addition, the mother had remarried and the children referred to their stepfather as ‘Dad’ and the father by his first name. The father wished to spend time with the children but during the family report session at the court, both children told the family report writer that they did not want to spend time with their father, and the mother did not support the children having any time with the father. [page 234] The report writer suggested that both caution and therapeutic counselling be the best approach in persuading the children to resume a parent/child relationship with their father. In the opinion of the report writer (at [33]): Due to their strong alignment with their mother, [it] is likely that both children would refuse to spend time with their father, even if Orders were made. This would put the children in a position of high anxiety. Any attempt to assist them to rebuild their relationship with [their father] needs to be planned and carefully implemented. It needs to include a therapeutic element. Forrest J said (at [38]): [T]he best interests of the two children require what might be described as ‘a cautious robustness’ to the reintroduction of the children to spending time with their father. Immediate therapeutic counselling is in their best interests. Reintroduction to their father, through that therapeutic process, is also in their best interests, as recommended. However, I am very concerned that an open-ended time frame, coupled with the mother’s clear

view that the children should spend no time with their father, will result in no actual progress towards the children spending time with their father being made in the six-month period suggested, before orders providing for time are made. The real risk of the children becoming completely estranged from their father … demands a fairly robust approach. If the children do not start spending time with their father soon, it could very well be too late. At the same time, there is a need to be mindful of the need for reintroduction in a way that ensures the children’s physical safety and emotional wellbeing are appropriately secure.

There are some matters that take on aspects of a longrunning saga played out under various Parts of the FLA and in repeated applications to the Federal Circuit Court, the Family Court and the Full Court of the Family Court. In rare cases — with special leave of the High Court — a matter may be heard in that court and finally settled, at least in a judicial sense. The following is such a case but the hearing in the High Court was merely a further step in a matter in which orders of the Family Court were appealed and cross-appealed over several years. The High Court in essence was concerned only with one aspect of the ongoing matter, that being whether the father of two boys should return those boys aged 15 and 17 from New York to Australia as ordered by the Family Court. By retaining the boys in New York the father was in breach of an order made by the primary judge Watts J that the boys be returned to Australia and a decision made as to with whom and where they should ultimately live. The father appealed the decision of Watts J, but the decision of the lower court was upheld by the majority of the Full Court

of the Family Court. Thus the appeal by the father to the High Court. The age of the boys as well as their stated wishes to remain with the father were complicating factors. In addition, the elder of the two boys was bitterly estranged from the mother. In considering this matter, bear in mind several important elements at play: the ages and views of the boys on the one hand (one almost an adult), but on the other the breach of a court order by the father and the judicial disapproval likely to be engendered by that breach. [page 235] To this may be added the importance of the boys’ schooling, whether in the USA or Australia. Finally, there is the fact that the boys (certainly the elder boy) would be most unlikely to live with the mother, thus leaving open the question of with whom they would live in the interim — leaving the Family Court to ponder the ramifications of ‘benevolent volunteers’ without standing in the proceedings being, in effect, placed in a position of loco parentis to the boys. In the circumstances it is unlikely these people would satisfy the court in the capacity as ‘any other person concerned with the child’s care, welfare or development’ (FLA s 65C).

Bondelmonte and Bondelmonte (No 4) [2016] FamCA 939 concerns the living arrangements of two teenage sons, R and S (‘the boys’) of the appellant father (‘the father’) and the

respondent mother (‘the mother’). When this Full Court matter was heard the boys were living with the father in New York. Until mid-January 2016, however, they lived with him in Australia, while their sister, T, lived with the mother also in Australia. Here the Family Court findings were in relation to R and S. T was not involved in these particular proceedings. All of the children of the parties, however, are the subject of very fluid parenting orders dated 25 June 2014, Order 2 of which enables each child to decide with whom they would like to live. Therefore the three children were granted considerable autonomy. When the parties separated in 2010, the children were aged 11, nine and five years respectively. The children remained in the mother’s day-to-day care but regularly spent time with the father. It was not contemplated at the time of the parenting orders that one of the parties would move overseas. With the consent of the mother, the father arranged for the boys to join him on a two-week holiday to New York in mid-January 2016. On 29 January 2016, however, the father’s solicitor informed the mother that the father had decided to remain in the USA indefinitely and, as the boys had elected to remain with him, they would not be returning to Australia in accordance with the parties’ agreement of 25 June 2014. The mother filed an urgent application for orders that the boys be returned to Australia and, pending further order, that they live with her. The mother acknowledged that the boys may not want to live with her, and put forward proposals of family friends who had agreed to house them. The trial judge found it was in the best interests of the boys for them to return to Australia pending a determination about whether they would continue to live in Australia or move to the United States. On 8 March 2016 the matter came on for hearing before Watts J in the Federal Circuit Court. Watts J made orders that required, inter alia, that the boys be

returned to Australia. Those orders also envisaged a scenario whereby the boys would be accommodated with family friends (‘the benevolent volunteers option’). This would be in circumstances whereby either or both of the boys did not wish to live with the mother upon their return, and whereby the father decided to stay in New York. The benevolent volunteers option was the idea of the mother and was raised at the hearing before Watts J. [page 236] The father appealed the decision of Watts J to the Full Court of the Family Court before Ryan, Aldridge and Le Poer Trench JJ: Bondelmonte and Bondelmonte [2016] FamCAFC 48. His submissions included that the trial judge failed to consider and evaluate relevant statutory considerations, failed to give appropriate weight to the views expressed by the boys, and erred in his consideration of the future of the boys if they were returned to Australia. The appeal was dismissed, Ryan and Aldridge JJ stating (at [93]): We do not accept the proposition that his Honour failed to expose his reasoning, including in relation to matters of weight, in the manner required. … Their Honours said (at [102]): It does not follow that because his Honour did not make orders consistent with the boys’ views in favour of remaining in New York with the father, that those views did not carry considerable weight. It is explicit in his Honour’s reasons that the boys’ views were taken into account … in a very real way, even although their desire was to remain in New York or, as senior counsel for the father more correctly described it, wherever it was the

father chose to live. It is also clear that their views did not carry as substantial weight as might otherwise have been the case or to other aspects of their stated views. As we have already explained, his Honour was entitled to take this approach. However, this invites consideration of his Honour’s reasons for not giving full effect to every aspect of the boys’ views and whether, as is contended for by the father, he ought to have obtained a report (in New York) before he diminished the weight given to that particular aspect of the boys’ views. Their Honours added (at [125]): We are satisfied that, seen as a whole, the orders made by the primary judge are firmly focussed on the best interests of the children. In the dissenting judgment of Le Poer Trench J it was evident that his Honour was not satisfied that the views of R and S were fully considered in the question whether they should be returned to Australia. He stated (at [209]–[212]): I have concluded that given the onerous responsibility cast upon a judge who is required to make a parenting order which is in the best interests of a child, it was incumbent upon the primary judge in this case not to make any return order on 8 March 2016 but rather require further evidence, sufficient for him to have a clearer understanding of the views of the boys on each parent’s proposals for them and a clear understanding of what might befall each of these children were the Court to make a return order as sought by the mother. Additional evidence would also inform the making of an order which the Court may construct of its own motion [U v U (2002) 211 CLR 238; 29 Fam LR 74; [2002] HCA 36]. …

In my view there was a failure to obtain any view of children, whose age dictated their views could be given significant weight, in relation to a proposal which effectively was a residence order in favour of a person who was not a natural parent of either child, nor was there any evidence that either of the subject benevolent volunteers had ever stood ‘in loco parentis’ to either child in any circumstance. … … The Court must acknowledge that there may be cases where the Court has to act with such urgency, having regard to the circumstances of a child that it is unable to obtain [page 237] the views of a child before making an interim parenting order. However, in my view, this was not such a case. The father sought special leave to appeal the decision of the Full Court to the High Court. On 14 October 2016 special leave was granted to the father to appeal the decision from Ryan and Aldridge JJ. The appeal Bondelmonte v Bondelmonte [2017] HCA 8 was heard before Kiefel, Bell, Keane, Nettle and Gordon JJ. The father’s appeal was lost. The father’s contention was that the primary judge Watts J had erred in discounting the boys’ expressed preferences to remain in New York, forming an adverse view of the father’s actions. The High Court disagreed, and held that the boys had been influenced by their father and therefore that should be taken into consideration when giving weight to the children’s views. The High Court stated that s 60CC(3)(a) only requires that the

views which have been ‘expressed’ by a child be considered; ascertaining the boys’ views was not statutorily mandated: at [41]. The High Court went on to say that as s 64C permits parenting orders to be made in favour of a parent of a child ‘or some other person’, the orders for the alternative living arrangements could be made in favour of the mothers of the boys’ respective friends: at [50]–[51].

In the matter following, the children involved did not seek to be within the court when a judgment was brought down in relation to a proposed parenting order, but their views were seen as sufficiently relevant to persuade Benjamin J to meet them in person.

Painter and Morley [2007] FamCA 283 before Benjamin J is an example of how judicial interviews can work well in practice. The father and mother in this matter had eight years of litigation before the Family Court. In addition, the father had several restraint orders issued against him and convictions for animal cruelty. In considering the criminality and credibility of the father as a witness, his Honour observed (at [57]–[58]): The father said he was convicted of an assault in relation to the mother. That conviction is of significance in terms of the mother’s understandable reluctance to travel to the father’s remote property. The father had three convictions in July 2004 in respect to acts causing injury to animals. He was fined $1,000.00. The father gave an explanation to these events and said the children would support him in respect of it and said

it was trivial. He entered a plea of not guilty but was convicted. I infer that he minimises and trivialised the animal cruelty matters. This evidence has relevance in regard to credit. The long history of the litigation and the extreme level of conflict between the parties resulted in an order being made that the interests of the children in the matter before the court should be safeguarded by an Independent Children’s Lawyer (ICL). This appointment was made. [page 238] In relation to submissions from the ICL, his Honour said (at [134]): The Independent Children’s Lawyer made preliminary submissions with which I agree:

two

(i)

The children are drowning in a sea of litigation which shows no sign of abating;

(ii)

The bitterness of the parents seems to be greater than their love of the children.

As with any matter involving children before the Family Court it is incumbent upon the court to ascertain the views of the children involved. Section 60CC(3) provides that this includes: (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; In discussing the possibility that the children be allowed to make their views known directly to the court, his Honour stated (at [139]): During the course of the trial it was clear that the elder

children had views that they had expressed to the family reporter and previously the father had expressed an interest in the children expressing their views direct to the court. After some discussion between the independent children’s lawyer, counsel for the mother and the father, I determined that the children ought to be given that opportunity to express these concerns to the court. If such an opportunity was given to one of the four children the subject of the proceedings it was appropriate that all four children should be entitled to express views. In discussion with counsel the process was arranged in that the interview with the children would take place in the court so that it could be recorded. The only people present would be the family reporter, Mr C, the counsel for the independent children’s lawyer and myself. Questions would generally be asked by the family reporter and it would be in the form of having the children confirm what they said to the family reporter in the last report and confirming their views. The interview with the children took place in the courtroom and was recorded. The only people present were the family consultant, counsel for the ICL and the judge. Questions were generally asked by the family consultant and were in the form of having the children confirm what they said to the family consultant in the last family report. The children were informed that they did not have to be in court if they did not want to; they did not have to express any view and there would be no difficulties if they did not do so; that the decision was that of the judge and not of the children; and that it was simply an opportunity to ascertain their views if they wished to give them. At the conclusion of the interview, the family reporter gave evidence of what had occurred and what was said. A transcript of the interview was also available to the court and the parties.

5.46 The court may inform itself of the views of the child in any way it deems fit, subject to s 60CD(2). This includes anything contained in a report made to the court by a family consultant pursuant to s 62G(2). A child’s views may also be expressed through an Independent Children’s Lawyer appointed pursuant to s 68L. 5.47 In many matters that come before the Family Court parents make competing applications in relation to with whom a child is to live, spend time and communicate. Each parent may have the benefit of legal representation ‘to [page 239] fight their corner’. Equally, children involved in family law matters may have need of legal representation so that their best interests may be presented to the court in a way that is independent of the parents. Section 68L gives the Family Court power to make an order for independent representation of a child’s interests. In Re K Appeal [1994] FamCA 21 before Nicholson CJ, Fogarty and Baker JJ, their Honours laid down a non-exhaustive set of circumstances in which independent legal representation for children should be the norm (at [93]– [107]). Their Honours were also mindful that ‘the Court may well benefit from the independent appraisal which a separate representative can bring to such a case’ (at [105]). The types of matters calling for such legal representation are where: there are allegations of child abuse whether physical, sexual or psychological;

there is an apparently intractable conflict between the parents; the child is apparently alienated from one or both parents; there are real issues relating to cultural or religious differences affecting the child; the sexual preference of either or both of the parents or some other person having significant contact with the child is likely to impinge upon the child’s welfare; the conduct of either or both of the parents or some other person having significant contact with the child is likely to impinge upon the child’s welfare; there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child; on the material filed by the parents, neither seems a suitable custodian; a child of mature years is expressing strong views, giving effect to which would involve changing a longstanding custodial arrangement or a complete denial of access to one parent; one of the parties proposes that the child will be either permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child; it is proposed to separate siblings;

none of the parties are legally represented and custody is at issue; and in applications to the court’s welfare jurisdiction relating in particular to the medical treatment of children the child’s interests are not adequately represented by one of the parties. Interestingly, in light of the fact that this matter was heard in 1994, the court discussed adherence to the UN Convention by saying (at [111]): In developing these guidelines, we have had regard to the provisions of the United Nations Convention on the Rights of the Child and in particular to Articles 9 and 12 thereof.

[page 240] The Full Court did not, however, reach a conclusion as to the role to be played by the UN Convention in appointing separate legal representation for a child. See also Janssen and Janssen [2013] FCCA 2281; Malone and Malone [2013] FCCA 1243; Musgrove and Panshin [2014] FCCA 1680; Tipper and Todd [2014] FCCA 1544; Abbey and Walburn [2014] FCCA 1440; Bingham and Montgomery [2014] FCCA 197; Ferguson and Monte [2014] FCCA 838.

The court in Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC ¶95-598 adopted the ‘Gillick competent’ test, holding that the weight accorded to the expressed views of the child will depend, among other things, on the strength, duration and basis for the views, and the child’s level of maturity and appreciation

of the matters at issue: see also Central Authority v Perry (1995) 20 Fam LR 380; Brear and Corcoles-Alfaro (1997) 22 Fam LR 219; FLC ¶92-768; Marriage of K and Z (1997) 22 Fam LR 382; FLC ¶92-783.

In B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755 it was held that while real weight must be accorded to the expressed views of the child, ultimately the best interests of the child are the determinate and in this regard other s 60CC (formerly s 68F(2)) factors may take precedence, as in the case below.

In Irish and Michelle [2009] FamCA 66 at [217]–[222] Benjamin J, in making an order that the children live predominantly with the father (rather than as formerly with the mother), discussed the views of the children thus: Enormous efforts have been put in place over the three months in 2008 to encourage the children, in particular B, to have a positive relationship with their father when the arrangements broke down. This includes a number of endeavours through Children’s Contact Service, the father and Ms K and in recent times the mother which seem to have been successful. However, I am mindful that whilst the evidence is that B’s behaviour has improved and changeovers now occur with minimal fuss, I am not satisfied, this will continue once the proceedings have come to an end. Sadly this is a case where the children may be at unacceptable risk of psychological harm if they remain with the mother as their primary carer. The evidence

earlier this year whilst things are better I am not satisfied, on balance that has completely turned around. One of the factors I have considered is the age and maturity of the children in relation to their views. The children are strongly aligned with the mother and want to remain in H. At para 27 of the fourth report the family consultant says: [J] is aware that his father is seeking that [he] and [B] move to Melbourne to live with him … [J] explained that he liked visiting his father and enjoyed travelling to Melbourne, but stated that he only wanted to spend time with his father for short periods of time. He does not want to leave [H], his school, friends, mother and grandparents. [J] spoke of experiencing homesickness during the long stay with his father and he missed his mother ‘very much’. During his time

[page 241] in Melbourne, [J] would often climb into bed when he was upset and missing his mother …

She goes on to say at para 43: [B]oth children … have consistently maintained that they wish to continue living with the mother and maternal grandparents, and they continue to identify their mother as their primary emotional support. As much as the children enjoy spending time with their father, both the children verbalised that they become distressed and miss their mother when they are separated from her for extended periods of time.

I accept they are deeply held views of the children and are reflected in the expressions which the family consultant noted about the homesickness of the children (particularly B). I have had significant regard to the views of the children and the consequences of the change in parenting. It should not be underestimated in terms of the children. The children have a close and intimate relationship with

the mother and want to be with her. She has been their primary carer since birth and since the parties’ separation. Both children miss their mother and are homesick when they are in their father’s care. I note that when the children are in Melbourne and are under stress that they look to each other for comfort and not the father. See also Brear and Corcoles-Alfaro (1997) 22 Fam LR 219; FLC ¶92-768 and Korban and Korban [2009] FamCAFC 143.

In the following case Bender FM acknowledged the views of the children, but also tried to put in place intervention designed to allow the father to play some part in the lives of his daughters.

In Nhan and Young [2010] FMCAfam 989 the father’s rigid parenting approach had led his daughters of 11 and 13 years to refuse to see him. Bender FM decided to order that the mother have sole parental responsibility, saying (at [96]–[97]): In the circumstances of this matter, having regard to the entrenched conflict between the parties, particularly in relation to education, the husband’s ongoing refusal to accept the advice of [Z]’s school in relation to his educational needs and where the husband is currently estranged from [X] and [Y], an order for equal shared parental responsibility cannot be seen to be in the children’s best interests. Further, given the complete lack of communication between the parties and as [X] and [Y] at this time are spending no time with the husband, the husband would

not be able to participate in making decisions for and about either of [X] and/or [Y]. Following a review of s 60CC matters, Bender FM referred to the desirability of therapeutic intervention (at [148]–[149]): This matter comes before the court in the context of a highly conflicted parental relationship, the breakdown of the relationship between the father and his two eldest daughters as a result of his rigid and obsessive approach to parenting and his children’s education, and the need to ‘fine-tune’ the arrangements for the time the parties’ youngest son [Z] spends with his father. [page 242] To their credit, the parties were able to agree to engaging in therapeutic intervention in the hope that this would facilitate the repairing of the relationship between the husband and his daughters [X] and [Y]. Bender FM made an order for the father to spend time with his daughters as agreed between the parties after taking into consideration those children’s expressed views, and to spend regular specified time with his son.

Relationship of the child with others: s 60CC(3)(b) 5.48 Section 60CC(3)(b) of the FLA requires consideration of a child’s relationship with his or her parents and other significant persons, including grandparents and other relatives. The Full Court in Marriage of Brown and Pedersen (1988) 12 Fam LR 506; FLC ¶91-967 recognised that the importance of the child maintaining ties with each natural

parent was a factor to be taken into account in determining the best interests of the child. The reforms to the FLA introduced in 2006 emphasise the benefits of regular contact with both parents, and the principles enumerated in s 60B provide a basis for interpreting s 60CC(3)(b): B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755. While this, unlike the 2006 amendments, did not introduce any presumptions, the high priority goal of preserving the child’s relationship with his or her parents and other relationships has been emphasised in the past by the courts. In particular, the Full Court in B and B held that the absence of a relationship with a parent might have a significant negative impact on the child.

In Re C and J (1996) 20 Fam LR 930; FLC ¶92-697, the Full Court recognised that to deprive the child of a strong bond with its parent and paternal grandparents would be contrary to the best interests of the child despite the mother’s concerns relating to sexual abuse by the father. In relation to the difficulty presented by evidence, Fogarty and May JJ stated (at 939): [In] the cases of this type which go through to trial the evidence is always conflicting and likely to be less than exact or overwhelming. The nature of sexual abuse is that it is committed in secret. Children are at times regarded as inexact or unreliable witnesses, admissions by an abuser are rare, and often there is an absence of corroborative evidence. Almost by definition, cases which come through to trial and appeal represent the most acute end of that graduating scale. Cases where investigation or other evidence indicate that the allegations are without foundation or they indicate the

likelihood that they have validity are likely to fall out of the system at a much earlier point. For those cases which proceed through to trial, the evidence in support of the allegations is often constituted by evidence of the parent or other person of statements made by the child, statements made to subsequent investigating personnel and the opinion of experts. So far as the alleged abuser is concerned, it is rare that he or she is able to produce positive evidence negativing the allegations. He or she can usually do little more than [page 243] deny the assertion and make himself or herself available for the inevitable investigation and cross-examination. There is no objective way of identifying a sexual abuser; they come in all shapes and sizes and from all strata of society. These problems are not unique to Australia. They have been grappled with in courts of most comparable western countries. … See Taylor Black and Vasser [2008] FamCA 335; Stapleton and Hayes [2009] FamCA 437; Zammit and Zammit [2009] FamCA 265; and Oakley and Cooper [2009] FamCAFC 133.

In M and M (1988) 82 ALR 577 at 582; 166 CLR 69; 12 Fam LR 606; FLC ¶91-979 in a joint judgment Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ of the High Court held: In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is

true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Parents’ participation in the life of the child: s 60CC(3)(c) 5.49 The fact that parents no longer live together or may never have lived together does not absolve either parent from nurturing the child or making parental decisions in respect of the child. The importance of participation by a parent in the life of a child cannot be overvalued. In simple terms these are the expectations engendered by s 60CC(3)(c). See Tranmere and Cleaver [2014] FCCA 1827. Extent to which each parent has fulfilled their obligations to maintain the child: s 60CC(3)(ca) 5.50 In accordance with the demands of s 60CC(3)(ca), part of the responsibilities of a parent is to make sure that their child is looked after physically and financially. The court would take into consideration the extent to which a parent has contributed to the ongoing maintenance of a child. The Family Court is particularly critical of parents who shirk their duty to contribute to their upkeep of a child. Likely effect of any changes in the child’s circumstances: s 60CC(3)

(d) 5.51 Relocation cases are a good example of the application of the factor that it is to the benefit of a child to maintain strong ties with each parent and their siblings. Both pre- and post-reform cases have placed close relationships ahead of plans to [page 244] relocate. Taking this to its logical conclusion, the closer the child’s relationship with the parent with whom the child is to spend time, the greater the harm that will result to the child by disrupting that bond: B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755. To the extent that restrictions are imposed on parents in relocation cases, it is invariably on the parent with whom the child lives. E Mills and J McConvill, in ‘A Theory of Injustice: The Flip Side of the Relocation Coin in Australia’ (2004) June IFL 99, note that ‘there is no case-law where the contact parent has been prevented from relocating away from the resident parent and child to avoid responsibility. Also, no case has been found where the court has determined that a contact parent should relocate to be near the resident parent and child. At the same time, there are a number of cases in which the resident parent (being the mother) has been prevented from relocating’.

In Marriage of Skeates-Udy and Skeates (1995) 19 Fam LR 557 at 572–3 and 576; FLC ¶92-626, Kaye and Hase JJ held that it

was important for the children to continue their close relationship with their father which had been established by his undertaking of home duties and generally taking care of the needs of the children for sustained periods while the wife studied and worked. In other cases where one parent’s relationship with the child was not particularly strong due to a demanding career, plans to relocate by the primary residence parent were considered to be in the best interests of the children: see also B and B; Marriage of Holmes (1988) 12 Fam LR 331; FLC ¶91-944.

Before the 2006 amendments, consideration of the relocation issue by the High Court occurred in the case of U v U (2002) 191 ALR 289. The facts of the case and its implications are set out below in the excerpt from the paper by Mills and McConvill, ‘A Theory of Injustice: The Flip Side of the Relocation Coin in Australia’ (2004) June IFL 99: The facts of the case — largely derived from Patrick Parkinson, ‘Developments and Events: Relocation’ (2002) 16 Australian Journal of Family Law 15 — are as follows. Both the mother and father came from Mumbai, India. They married in 1989 and the child was born in Australia in March 1994. In July 1995, the mother moved with the child to Mumbai. The father travelled to Mumbai many times to see his daughter. In 1998, the mother returned to Australia to attempt reconciliation. However, reconciliation did not work. The mother sought to leave Australia with the child but was prevented from doing so due to the child being placed on a ‘watch list’. During the court hearing, the mother sought to return with the child to India and proposed contact arrangements with the father on a regular, albeit infrequent, basis. The father proposed that he become the primary residence parent and that the mother should remain in the Sydney/Wollongong area and have frequent contact with the

child. The evidence presented in court clearly established that the child’s primary attachment was to the mother, yet the child had a close relationship with both parents. The Family Court made a parenting order in favour of the mother, but

[page 245] required her to reside in the Sydney/Wollongong area. The mother unsuccessfully appealed to the Full Court of the Family Court.

The appeal largely turned on the trial judge’s treatment of a concession made by the wife during cross-examination by the father’s barrister as a ‘third proposal’ made by her. The mother’s concession was that, if the child was not permitted to be removed from Australia, then she would, albeit reluctantly, remain in Australia with the child. This was, essentially, the husband’s alternative proposal should he not succeed in becoming the primary resident parent. He sought that she be restrained from moving her residence outside the Sydney/Wollongong area. A majority of the High Court, comprising Gummow and Callinan JJ, with whom Gleeson CJ, McHugh J and Hayne J agreed, found no appealable error and accordingly dismissed the mother’s appeal. As there was nothing to suggest that the trial judge incorrectly interpreted the criteria in the FLA, or gave inadequate consideration to one or both of the proposals presented by the parties, the majority felt obliged, in accordance with the doctrine of judicial restraint, to uphold the decision at first instance. In dissenting, Gaudron and Kirby JJ (in separate judgments) found that the appeal was

made out, the effect of which would be that the mother be allowed to relocate to India with the child. Gaudron J was particularly critical in her judgment of the fact that no consideration was given to the possibility that the father could move to India to avail himself of regular and frequent contact with his daughter. Gaudron J commented (at 296): [I]t is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father’s origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not. Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.

Interestingly, although Hayne J was part of the majority in upholding the reasoning and findings of the judge at first instance, his Honour agreed with Gaudron J that consideration should be given to the possibility of the contact parent relocating to be near the child. His Honour said (at 327):

It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must

[page 246] not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.

In AMS and AIF [1999] HCA 26; (1999) 24 Fam LR 756; 199 CLR 160; 163 ALR 501 Hayne J drew attention to the complexity of both family law and human frailty. His Honour said (at [204]–[205]): The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order — usually an order that says yes or no to some application. ‘[A] complicated mass of human experience has to be reduced to the simplest possible terms. [W Gibson, ‘Literary Minds and Judicial Style’ (1961) 36 NYULR 915 at p 916].’ Because the problems are human problems, because they are as varied and complicated as they are, the legislation speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the

legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning. Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in the future but also of what will be ‘best’ for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.

See also Burke and Burke [2009] FMCAfam 984 at [83].

Post-2006 amendments 5.52 In Morgan and Miles (2007) 38 Fam LR 275; [2007] FamCA 1230, Boland J heard an appeal from the Federal Magistrates Court in which the Magistrate had made an order that a mother return with her children to the town some 140 kilometres from the place to which she had relocated. The mother appealed. His Honour brought down a judgment in which several aspects of the former and current legislation were discussed. His Honour stated (at [53]–[92]): First, there is no presumption of equal shared care to be found in the Act. The presumption, which does not apply in situations of child abuse and family violence, and may be rebutted if not appropriate in the circumstances of the case, is in respect of equal shared parental responsibility not equal shared care (see s 61DA), ([his Honour’s] emphasis). As explained in Goode and Goode (2006) 36 Fam LR 422; FLC ¶93-286; [2006] FamCA 1346 (Goode) and in Newlands v Newlands (2007) 37 Fam LR 103; [2007] Fam CA 168, if the

presumption applies and an order is made for equal shared parental responsibility, this triggers the requirement for a judicial officer determining an interim or final parenting application to consider whether spending equal time with both parents is in the best interests of a child, and whether the child spending equal

[page 247] time with both parents is reasonably practical, and to consider making an order to that effect (s 65DAA(1)). If the court does not made an order for a child to spend equal time with each parent, to consider whether the child spending substantial or significant time with either of his or her parents is in the child’s best interests, and whether spending substantial or significant time is reasonably practicable, and to consider making an order for the child to spend significant or substantial time with the child, or make other orders. Secondly, on one reading of the submission, it assumes a ‘right’ to relocate. There is nothing in the legislation which provides that a parent who has an existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). While such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

… The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application [to] obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made. It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it [significantly] more difficult for that child to spend time with the ‘left behind’ parent. If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally. The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the ‘left behind’ parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent. Section 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner. In considering whether the child should live with the parent who proposes to relocate a court: Must be satisfied the parties have, unless an exclusionary

circumstance applies, genuinely attempted to resolve the dispute.

[page 248] Make orders having regard to the child’s best interest as the paramount, but not the sole consideration. Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child. If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child. In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing. When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects [of] parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide: – that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent; – that the child lives with the non-relocating parent and spends time with, and communicates with, the other parent; – that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale; – the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent. Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. It follows from my exposition of the legislation, that earlier core principles: that the child’s best interests remain the paramount but not sole consideration; that a parent wishing to move does not need to demonstrate ‘compelling’ reasons;

[page 249] that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement, remain valid. What the legislation now requires is: consideration of the competing proposals against the criteria now in s 60CC informed by s 60B; if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility; but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders. … It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application[s] involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

I have noted above that cases before the introduction of [the] amending Act generally applied principles enunciated in [Cowling and Cowling (1998) FLC ¶92-801], and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent. The cases demonstrate that, sensibly, judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII. In [Goode and Goode [2006] FamCA 1346] the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly at para 22 in Cowling which talks about a ‘well settled environment’. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. While lengthy, it aids understanding to set out the relevant passages from Goode [at [71]–[73]]: The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to

[page 250]

the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time. In our view, 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 wellsettled 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). 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. 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. … … This appeal does not raise issues relevant to an international or interstate move and I have not had the benefit of argument on those issues. It is not necessary or appropriate to consider the issues germane to such applications on this appeal against an interim parenting order. It would be a rare case that a parenting order providing for an international relocation would be made following an interim hearing. The focus in this appeal has been on what may be described as a ‘local’ move of approximately 144 km and whether this constitutes ‘a relocation’.

[page 251]

The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. 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. Sensibly, the legislation does not seek to define ‘local’, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.

In Australia, we are proud of our multicultural population and, in a geographical sense, the extraordinary breadth and depth of the country. Taken together this may explain why there is a great deal of movement by families, both in Australia and overseas regions. Since the inception of the FLA in 1975, controversy about the power or otherwise which the Family Court of Australia has to prevent or allow a separated/divorced parent to set up a home a distance from

the other parent has created enormous difficulty. This is whether the parent plans to relocate intrastate, interstate or overseas. If anything, the 2006 amendments have wrought further angst — some of it public. The Family Court Bulletin is a publication of the court providing a forum allowing the Chief Justice of the Family Court to publicly address a large number of those who are vitally interested in the various aspects of family law making — whether participants or practitioners in the court process. In the July 2009 publication, the Chief Justice of the Family Court, the Hon Diana Bryant, drew attention to two judgments, discussed below, relating to the relocation of either one or other parent. Judgments of interest It has been recently argued that the 2006 amendments to the Family Law Act resulted in a new class of cases — those designed to prevent one parent moving out of reasonable range of the other parent. It has been suggested that a child’s right to a meaningful relationship with both parents is something the legislation protects and the judges will preserve, making it more difficult for a parent to obtain the Court’s permission to relocate with the child. The Court has the power to prevent a child from being removed from a particular location if, in so doing, the child receives the benefit of having a meaningful relationship with both parents. However, the purpose of the order is to advance the best interests of the child, not to dictate to the parent where they will live. In cases where a parent does not wish to be separated from their child, the order can

[page 252]

indirectly therefore restrict the parent’s freedom and movement and appear to direct it. The most common situation arises when the primary care giver wants to relocate and the other parent seeks to prevent the move on the basis that it will jeopardise their relationship with the child. Less common are the cases in which a judge orders that the child live closer to the other parent which therefore requires the primary carer to change their residential location or, if not prepared to do so, for there to be a change in the child’s primary residence. Two cases which demonstrate the difficulties that judges face and the complexities of the decision making are summarised below to illustrate these points. The summaries also correct the false impression created by the newspaper coverage of these cases. Hartnett and Sampson [2009] FamCA 106 The couple lived in Sydney and had a stormy relationship lasting about seven years from first meeting to separating. During the marriage one child was born and another was born some months after the couple separated. At the time of the birth of the second child, the mother had moved to Geelong where she had family and a support network. The mother, while acknowledging the role of the father in the life of the first child, had a different view in relation to his role in the life of the second child. She did not tell him when she was due to give birth, registered the child with her surname and arranged a christening without referring to the father or telling him the date. At other times when both parents and children were in the same city, she made no attempt to provide the father with an opportunity to see his second child. After some efforts on the part of the father to establish and sustain relationships with his children, including travelling to Geelong and setting up a home away from home in a motel, the parenting matter was brought to court.

The father sought orders that the children live in Sydney with him and the mother sought orders that they live in Geelong with her. Neither parent suggested that the other should move or that they should all live in the same city. At the conclusion of the trial, the judge ordered that the children’s residence be established in Sydney and that the parents were to share parental responsibility. The judge found that the wife had not and would not do all she could to facilitate the children’s relationship with the father if they lived in Geelong. The children had a half brother living in Sydney and the judge considered that the affectionate relationship the siblings shared could not exist unless they all lived in Sydney. The wife was not ordered to relocate to Sydney but the orders were unworkable if she did not. The wife appealed to the Full Court which set aside the order that the children live in Sydney and remitted the parenting issues to the first instance trial judge for further consideration. Two of the judges felt that the trial judge had not sufficiently explored other options for shared care and had not allowed for a sufficiently gradual increase in the time the children should spend in the care of the father. This is significant given that the younger child was born after separation and, having never lived with the father, had an under-developed relationship with him.

[page 253] The Full Court found that the trial judge had not properly addressed the practicalities of relocating the children to Sydney from the point of view of either the mother’s resources or the father’s capacity to assist. It was felt that only in

circumstances of significant wealth could the practicalities of such a move be excused from close analysis. The trial judge subsequently excused herself from hearing the matter on remit from the Full Court on the basis that further appeals might be lodged if she were thought to have a predetermined view about a party or situation when rehearing the case.3 … Rosa and Rosa [2009] FamCAFC 81 The Full Court dismissed an appeal from the mother against orders that she continue to live in a remote North West Queensland town after separating from her husband. At trial, the Federal Magistrate heard argument from the mother that she should be allowed to live in Sydney, her home town, where she had close family, a support network and good employment prospects. The mother’s evidence was that were she to continue to live in the remote town, her financial situation would be poor and she would be emotionally and physically isolated. The mother further argued that as the family had only been in the North West Queensland town for a short time before separation, she and the daughter were not established in the town and life would be better for them in Sydney. In fact, immediately after separation, the mother and daughter had returned to Sydney and the father applied to the Court for equal shared parental responsibility and that the child live with each parent on a week-about basis. The father argued that they should all live in the remote North West Queensland town where he had a good job, the reason for their presence there in the first place. He refused to consider living elsewhere because his job was ‘interesting’. The Federal Magistrate also found that the father’s career

ambitions included concerns about his future capacity to provide for the child. The mother told the Court that she would not consider leaving the child and, as the Federal Magistrate was convinced that a meaningful relationship with the father could only be maintained through personal contact on a regular basis, he ordered the child to live in the remote town. He did not make any orders about the mother’s residence and did not constrain her freedom of movement. However, if she chose not to live in the remote town, the Federal Magistrate would order that the child live with the father and spend time with the mother. This was based on the view that

[page 254] the mother would not encourage the relationship with the father and that she failed to appreciate the physical and financial costs of the child shuttling between Sydney and North West Queensland. The case was appealed and the Full Court upheld the original decision that the child’s best chance of sustaining a meaningful relationship with the father was for the child to remain in the town. The judges found no error of law and, contrary to media reports, there was no obligation on the mother to stay in a town where she had little support. Nevertheless, her sense that she had no option is easily understood.

With respect to her Honour, it seems somewhat disingenuous to state ‘contrary to media reports there was no obligation on the mother to stay in a town where she had little support’. Certainly the mother was free to leave the town — without her child. Hardly a choice for this mother to

willingly make. The following outline of Rosa and Rosa [2009] FamCAFC 81 gives a greater exposition of the facts.

The applicant mother and the respondent father married in 2000 and their child was born in 2002. In early 2007, the family moved from Sydney to a town in north-west Queensland in order for the respondent father to take a position as an engineer. In August 2007, the parties separated and some time after that the applicant mother and the child moved back to Sydney. The respondent father then commenced proceedings in the Federal Magistrates Court for orders in relation to parenting arrangements. At the time the matter was heard before Coker FM, the parties were living in north-west Queensland, with the child living with each parent on a week-about basis. Both parents sought orders that they have equal shared parental responsibility. The applicant mother sought orders that this be achieved by her and the child living in Sydney with the child to spend time with the respondent father for specified periods in north-west Queensland or in Brisbane, or that she remain in the town and the child live primarily with her, or that both she and the respondent father live in Sydney with the child living primarily with her. The Magistrate noted the respondent father’s evidence that he was not prepared to live in Sydney due to his employment, and the applicant mother’s evidence that if the child were to live in Queensland, she would not move to Sydney. The Magistrate made orders that the child remain in north-west Queensland living week-about with each parent but that in the event that the applicant mother was not living in Queensland then the child was to remain living there with the respondent father and spend agreed time with the mother. The Full Court of the Family Court (Finn, May and Benjamin JJ) in a unanimous judgment dismissed the applicant’s appeal. The court rejected the applicant mother’s argument that the Magistrate erred in failing to have regard to and give specific

reasons on the matters referred to in s 65DAA(5) of the FLA concerning whether it is reasonably practicable for a child to spend equal time with each parent. The court held that although the Magistrate did not explicitly address the matters specified in s 65DAA(5), those matters were considered by the Magistrate in his Honour’s consideration of s 60CC or in his Honour’s review of the evidence at the commencement of his reasons. [page 255] The mother successfully sought leave to appeal to the High Court of Australia: MRR v GR [2010] HCA 4. The questions of law said to justify a grant of special leave to appeal included: whether the Full Court of the Family Court erred in failing to find that the Federal Magistrate’s failure to make explicit findings on the reasonable practicability of an order for shared parental responsibility and on the factors specified in s 60DAA(5) of the FLA was ameliorated by consideration of the matters specified in s 60CC of the Act; whether the Full Court erred in considering the issue of relocation by focusing on whether one parent should be permitted to remove the child instead of properly considering and assessing the proposals of the parents in dispute (see N Berkovic, The Australian, 3 October, 2009). In considering whether the child should live with the parent who proposes to relocate, a court: –

must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute;

–

must make orders having regard to the child’s best interest as the paramount, but not the sole, consideration;

–

must be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects, including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child;

–

if making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child;

–

in making an order for equal shared parental responsibility, must have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing;

–

when dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects of parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made;

–

will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, the court

may make such order which may provide: [page 256] *

that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

*

that the child lives with the non-relocating parent and spends time with, and communicates with, the other parent;

*

that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

*

the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent and spends time with the other parent; because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. See Taylor and Barker [2007] FamCA 1246; McCall and Clark [2009] FamCAFC 92; Twiner and Field [2009] FamCA 212; Champness and Hanson [2009] FamCAFC 96. (In the latter case, the mother and two children were permitted to relocate from Australia to Ireland.)

The matter following illustrates the difficulty of making a

decision in relation to relocation where the separation from a parent is likely to cause the child distress.

In Harding and Crawley [2011] FamCA 581 the mother of a fiveyear-old child sought to relocate with the child to New Zealand. The mother, of Aboriginal heritage, met the respondent at school in North Queensland when both were 15 years old. Their child was born a year later. The mother began facilitating contact between father and child, which developed into an arrangement for the father to spend time on alternate weekends. The parties never cohabited. After her mother moved from Queensland to Western Australia, the mother sought to relocate to New Zealand for the support of her father who lived there with his new partner and their three children. After holidaying twice there, the mother relocated there without the consent of the father. The father then issued Hague Convention proceedings which led to the mother’s return with the child. Kent J described the mother’s conduct as ‘reprehensible’ (at [32]). After reviewing the legislation and case law relevant to ‘relocation’, Kent J (at [63]) first dealt with the question of parental responsibility, finding no evidence of family violence or abuse to rebut the presumption that it was in the child’s best interests for her parents to have equal shared parental responsibility. His Honour (at [170]) held, having regard to his findings as to FLA s 60CC factors, that neither equal time not substantial and significant time with each parent would be in the child’s best interests nor reasonably practicable. It was ordered that the child live with the mother in New Zealand and spend time with the father there during New Zealand [page 257]

school holidays and in Queensland during any visits there by the mother. In relation to the best interests of the child J in the long term, Kent J stated (at [159]): Given that J is yet to turn six, and the prospect that at the young age of her parents, there may well be substantial changes in their respective circumstances in the future, it is to my mind in J’s best interests that shorter term rather than longer-term considerations ought carry more weight in considering her best interests.

In the following case the Full Court of the Family Court overturned an order of a lower court that a pregnant woman be compelled to return to Townsville from a relocation to Wagga Wagga.

In Iris and Cohen (No 2) [2011] FamCAFC 120 a mother who was ordered at an interim hearing by Coker FM to return to Townsville from Wagga Wagga where she had relocated before the birth of the child appealed against the order. Pending the appeal, May J set aside Coker FM’s refusal to grant a stay. As to the appeal, the Full Court (May, Ainslie-Wallace and Young JJ) concluded (at [25]–[28]) as follows: In the circumstances of this case we are of the view that the appeal should be allowed. The Federal Magistrate was provided with inadequate material, especially in the mother’s case and there was no explanation given for such inadequacy. No application was made for an adjournment nor was the Federal Magistrate told of the limited certificate provided by Legal Aid (NSW) … No doubt the Federal Magistrate would have adjourned the matter if such an application had been made accompanied by full information of the circumstances. The appeal should be allowed because the orders required on an interim basis the mother and the child to return to Townsville in circumstances that are clearly impracticable on the evidence before the Federal Magistrate. In an endeavour to make arrangements for the father to have a relationship with the child the Federal Magistrate failed to give proper attention to the other matters as required by s 65DAA(5) of the [Family Law] Act, which provides as follows: (5) In determining for the purposes of subsections (1)

and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to: (a) how far apart the parents live from each other; and (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant. The Federal Magistrate did not properly consider all of the circumstances of the child and her best interests. His Honour erred in elevating the father’s concerns and [page 258] proposals above that of the child and the mother, and gave undue weight to the orders sought on behalf of the father. At this early stage of the proceedings it was wholly inappropriate to have required the mother and child to return to Townsville, particularly given the physical, emotional and financial circumstances that would

confront each of them as a result of order 1 of the interim orders of 18 February 2011. The impact of that arrangement was never fully considered by his Honour. See also Mitchell and Sadko (No 2) [2014] FamCA 377; Jurchenko and Foster [2014] FamCAFC 127; Nada and Nettle [2014] FamCAFC 123; Orpheus and Orpheus [2014] FamCAFC 70; Wheedon and Gomer [2014] FamCAFC 141.

The separation of siblings 5.53 It goes without saying that matters which come before the Family Court, by the very nature of its jurisdiction, create dilemmas. One of these is the separation of siblings. It is generally assumed that children will benefit from remaining with their siblings, and the court will normally be reluctant to separate siblings unless this appears, in all the circumstances, to be for their welfare: Marriage of Heidt (1976) 1 Fam LR 11,576; FLC ¶90-077. As with other issues, it is clear that there can be no legal presumption or onus in dealing with this issue. Whether siblings should remain together or be separated depends simply on an assessment of where their best interests lie in the light of the facts and circumstances of the case. In the majority of cases, it will be clear that the welfare of siblings is best promoted by their remaining together. Thus, where all the children of the marriage remain with one or other parent after the breakup, the court will be greatly reluctant to order that they be split up between the parents: Marriage of Heidt (1976) 1 Fam LR 11,576; FLC ¶90077; Marriage of Bennett (1990) 14 Fam LR 397; (1991) FLC ¶92-191. As with notions of the maintenance of the status quo, the historical reluctance of the court to separate children

of a family will undoubtedly be bolstered again by the provisions of s 60CC(2)(a). 5.54 Separation of siblings does, however, sometimes occur. In Marriage of Cattanach and Leavens (1977) 3 Fam LR 11,276; FLC ¶90-246, a boy and his young sister had been in the custody of their mother since their parents’ divorce and there was no doubt that the mother took very good care of the children. A combination of factors, however, caused the court to order that the custody, as it was then, of the boy go to his father. The mother had remarried and proposed to go with her new husband and the children to the United States, thus precluding the regular and frequent access the father and his new wife had had to the children. The siblings were very close to each other but agreed among themselves that one should live with her mother and the other with his father. The boy had a very strong attachment to his father and his relatives in Australia and the girl was equally attached to her mother and wished to continue living with her whether in Australia or in the United States. The outcome in the following case, however, reaffirms the pre-2006 position of the importance of maintaining the status quo, unless exceptional or compelling reasons dictate otherwise. [page 259]

In Marriage of Bennett (1990) 14 Fam LR 397; (1991) FLC ¶92191, the Full Court upheld an appeal by the wife against an order awarding custody (as it then was) of one of the children of the marriage to the husband. In contested custody proceedings, the

trial judge had ordered that the husband have custody of the son, E, born 9 January 1980, and the wife have custody of the daughter, A, born 6 February 1981. The parties had separated in June 1983 and the children had since lived with the wife. In allowing the appeal, Nicholson CJ, Simpson and Finn JJ held (at 397) that: It was unsafe to allow the trial judge’s decision to stand … The separation of the two children so close together in age was a most serious step which could only be justified in compelling circumstances … It was unclear why a long-established status quo in relation to the two children was disturbed or why the children were separated. See Fotherdell and Stadley [2009] FamCA 606; Canning and Canning [2013] FCCA 2019; Deacon and Castle [2013] FCCA 691; Hodgson and Hodgson [2013] FamCA 1020; Ibbott and Chaconas [2014] FamCA 73; Mitchell and Sadko [2014] FamCA 300; Symons and Symons [2014] FCCA 1550; Tinto and Dawhurst [2014] FamCAFC 16.

The cost of spending time and communicating with a child: s 60CC(3)(e) 5.55 The right of children to spend time and communicate, on a regular basis, with both their parents and with other people significant to their care, welfare and development is sacrosanct under the FLA. This right, however, is not absolute, for it is subject to the best interests of the child and in some circumstances the best interest principle may be overridden by what appears to be simply practicalities. For example, s 60CC(3)(e) of the FLA requires the court to consider 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. In B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 736; FLC ¶92-755, it was said that one of the important considerations in whether a child would be allowed to relocate was the feasibility and cost of travel in order that the child have contact with the non-resident parent: see also Brear and Corcoles-Alfaro (1997) 22 Fam LR 219 at 239; FLC ¶92-768. The capacity and conduct of the parties: s 60CC(3)(f) 5.56 In applications concerning with whom a child lives and spends time, the capacity of each parent to provide for the child’s needs and the approach of each to the responsibilities of parenthood may be a pivotal factor in any decision of the court. By far the most common situation is where both parents claim the major role in the life of the child by an application for with whom the child is to live and with whom they will spend time. In these circumstances, the court will examine each of the competing environments. There is no presumption under the FLA that one parent is necessarily a better care provider than the other. Placement of the child must be determined in accordance with what the court perceives to be the [page 260] best interests of the child on the basis of a considered appraisal of the competing situations, and not from any

preconceived notion in favour of one or other parent: Marriage of Sanders (1976) 1 Fam LR 11,433; FLC ¶90-078; Carlson and Bowden [2008] FamCA 1064; Flacks and Chatburn [2014] FamCA 428.

A matter concerning a very young baby — still breastfeeding — tested the oftimes apparent clash between the vital welfare of a child under the FLA and the promotion of a meaningful relationship between parent and child. Farmer and Rogers [2009] FamCAFC 117 concerned the mother Ms Farmer, C an eightmonth-old child (at the time of the first hearing), and the father Mr Rogers from whom the mother had separated some time before the birth of the child. The father made an application to the Family Court for an order under s 67Q(a)(1) of the FLA for the return of the child to the north coast of Queensland. The application was heard on 15 May 2009 by Federal Magistrate Coates. On this date the mother was living in South Australia where she had lived since 18 or 19 March 2009. She took part in the proceedings by telephone. Coates FM made the following orders (at [3]): (1) That the mother do all acts and things necessary to return the child [C] born September 2008 (‘the child’) to [the north coast] in the State of Queensland, by no later than Friday, 29 May 2009. (2) That the mother be restrained from removing or relocating the child from [the north coast] in the State of Queensland without written agreement of the parties or an Order of this Court. Living arrangements — Child (3) Should the mother not return to [the north coast] then the child live with the father pending a further interim hearing or final hearing of the matter.

(4) Otherwise, the child spend significant and substantial time communicating and living with the father as may be agreed between the parents and failing agreement as follows: (a) From 30 May 2009 the child lives with the mother and spends the following time per week with the father in his care until age 12 months; (i)

Tuesdays and Thursdays — 2.00 pm to 7.30 pm.

(ii)

Saturdays — 11.00 am to 7.30 pm.

(b) From age 12 months to 18 months the child primarily lives with the mother and spends the following time per week with the father in his care; (i)

Tuesdays and Thursdays — 2.00 pm to 7.30 pm.

(ii)

Saturdays — 10.00 am to Sundays 10:00 am.

Counsel for the mother made a submission to Coates FM saying in effect that the child was being breastfed and also slept the long hours to be expected of a baby so young. It was also submitted on behalf of the mother that the rigidity of the timetable ordered by Coates FM was unrealistic for a baby at such an early stage of development. [page 261] The matter was reconsidered by the Magistrate and at a further hearing (adjourned from 26 May 2009 to 5 June 2009) Coates FM in effect amended the original orders as follows (at [12]–[13]):

First, the mother continued to be required to return the child ‘to within 10 minutes drive from the father’s residence in the State of Queensland, by no later than Monday, 15 June 2009’. Secondly, the orders for time with the father were altered to be as follows: On Tuesdays, Thursdays and Saturdays for a period of 4 hours to be made up of two (2) – two (2) hour sessions with a one (1) hour break in the middle with the mother to telephone the father once the child wakes from her morning sleep to commence such time and the father will collect the child at the commencement of time for each session and return the child at the conclusion of time for each session from the mother’s residence.

As mentioned, the mother was restrained ‘… from residing any further than 10 minutes drive from the father’s residence’. Orders were made that the mother file material ‘in a proper form’ by no later than 8 July 2009. The matter has been adjourned, it is assumed for mention only, to 15 July 2009. It is important to note that the orders made by Coates FM were of an interim nature with the intention of Coates FM to set a trial date where all contentious matters could be fully exposed and adjudicated. Coates FM quoted Boland J in Morgan and Miles (2007) FLC ¶93-393 where his Honour observed (at [23]): It appears to me that the very difficult issues involving a relocation make it highly desirable that except in cases of emergency the arrangements which will be in a 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. Coates FM referred to the need for final orders to be made only after such a trial (in so far as final orders in relation to a child can be made) but he indicated that in so far as the recovery order

was concerned it was in the best interests of C to return to live close to Mr Rogers. The mother sought that all matters before Coates FM be adjourned until she could present written evidence in affidavit form. His Honour refused to consider such a request. The mother appealed to the Full Court of the Family Court. The appeal was heard by May J on 9 July 2009. His Honour made, among others, the following orders: (1) The appeal in relation to the orders made on 15 May 2009 be allowed. (2) The applications of the parties’ be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Coates. (3) The interim orders made 5 June 2009 continue until the commencement of a re-hearing. It must be noted that the appeal was not conducted in any way related to the wisdom or otherwise of the orders made by Coates FM. Instead, the appeal in the Full Court was largely concerned with the procedural rules under the FLA with regard to whether the original hearing was conducted in such a way as to, in effect, qualify Ms Farmer as a valid appellant.

[page 262] When one parent appears to have very little interest in any aspect of the life of their child/children the Family Court will try to make an order reflecting the possibility that the uninterested parent may wish to remedy the situation at a later date.

In Blessington and Blunt [2016] FamCA 1094 before Thornton J a mother sought an order allowing her to relocate from Melbourne to Tasmania with a 13-year-old daughter. The father did not file a response, did not attend any court event and did not attend the hearing. Nevertheless, even when a parent has shown little interest in their children to the point of being uninvolved in Family Court proceedings, the court may make orders leaving the door open to belated participation by the absent parent. In allowing the mother and daughter to relocate Thornton J made orders reflecting the principle that it is in the best interests of a child to have a relationship with both parents. These orders were: (1) The applicant be granted leave to proceed on an undefended basis. (2) The final parenting orders made 3 September 2014 be discharged. (3) The mother have sole parental responsibility for X, born … 2003 (‘the child’). (4) The mother be permitted to relocate the residence of the child to Hobart, Tasmania. (5) The child live with the mother. (6) The child spend time with the father as agreed. (7) The mother do all things and sign all documents necessary to: (a) authorise the father to receive copies of school reports, school photographs and notices usually provided to parents, at the father’s expense; (b) immediately inform the father in the event that the child suffers any serious injury or illness requiring surgery;

(c) keep the father informed at all times of [the child’s] residential address, landline (if applicable) and mobile telephone number; and (d) provide a copy of these orders to any school, educational institutions or extracurricular service provider attended by the child. (8) Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to obtain a passport for X, born … 2003 in the absence of consent from the father. (9) The mother forward a copy of these Orders to the father’s last known postal and email addresses, being … (10) The father file any application to vary or set aside these orders pursuant to rule 11.03 of the Family Law Rules 2004 within 28 days of copy of the orders being sent to his last known postal and email address.

Zhin and Zou [2016] FamCA 1072 was again an undefended matter with regard to the one child of the relationship, B born in 2002 (‘the child’). There was also the question of a division of matrimonial property between Ms Zhin and Mr Zou, but here we are concerned only with the orders made in relation to the child. The father had been absent from Australia for six years. In April 2010 he was arrested and charged with various sexual offences against the child’s mother. He was granted bail and while on bail he fled Australia in late 2010 and had lived in China since that time.

[page 263] Johnston J had many telephone conversations with the husband during the course of the proceedings. It was stated by his Honour (at [3]): During those conversations I have urged the husband to return to Australia and present his defence in the District Court. He says he is innocent of the subject of the charges but refuses to return to Australia to have the matter properly dealt with. He says that he is afraid that on his return he will be arrested and imprisoned. It is the nature of legal proceedings in a common law country that justice is seen as less than perfect where only one party to the proceedings is heard. This is particularly so in the Family Court and affiliated courts when final orders are made daily and where the best interests of children are of paramount consideration. In this matter his Honour seemed particularly anxious that the father/husband ‘have his day in court’: I informed the husband at an early stage that unless he was prepared to present himself in person before the Court I would give leave for the wife to have her application heard on an undefended basis. The husband has continued to decline to return to Australia. I had previously indicated to the husband that I would be prepared to let him engage in some limited crossexamination of the wife and to make submissions. But I also informed him that in circumstances where he refused to appear at court and submit to crossexamination, I did not propose to read any material filed by him. [at [4]]

The case of Ray and Males [2009] FamCA 219 involved competing applications for residence of two children aged 15 (‘J’, a boy) and nine (‘Y’, a girl). Each child was represented by an Independent Children’s Lawyer. There were allegations that one of the children had been sexually abused by an uncle, that the mother had drug, alcohol and emotional problems and that the father had been violent to the mother during the relationship. The mother had taken out an intervention order against the father and just months prior to the proceedings an intervention order had been granted against the father to protect his new partner and the older child. The father was seeking sole parental responsibility and orders for supervised contact for the mother. Early in the proceedings, the judge formed a concern that both children were at risk of ‘emotional, physical and sexual abuse’ (at [24]) and that ‘it is possible if not likely that … none of the parties or available members of family are suitable to have parental responsibility’ (at [107]). Forming the view that a possible outcome of the proceedings may be an order for parental responsibility in favour of the Secretary of the Department of Health and Human Services (Tasmania), the judge invited him to intervene pursuant to FLA s 91B. The Secretary declined, and argued that the court would not have the power to make a parental responsibility order in his favour without his consent (at [24]). The judge nonetheless made an order joining the Secretary as a party on the basis of an analysis that the court had the power to do this and also to make orders for parental responsibility in favour of the Secretary. This decision was appealed and the Full Court upheld the appeal, finding that the FLA did not confer power on courts to make parental responsibility orders in favour of state child protection authorities in circumstances where the department did not consent: Secretary of the Department of Health and Human Services v Ray (Costs) [2010] FamCAFC 258.

[page 264] At the time of the proceedings in Akston and Boyle [2010] FamCAFC 56, the child (a boy) was 12 years old. At the time of his birth, both parents were drug addicts. They had both engaged in criminal activity to support their addiction: the father had criminal convictions and the mother worked as a prostitute. In a report by a Family Consultant it was said (at [47]): From birth to age five, [the child] was exposed to neglect, homelessness, severe financial issues, drug abuse and drug users. There has been a long child protection history that began from the child’s birth and relates to emotional and physical neglect. The child was born with severe drug withdrawal. When the child was about two, the father underwent rehabilitation as a condition of an intensive corrections order. The parents’ relationship broke up and the mother continued using drugs. The father continued using drugs sporadically and at the time of the trial was on a methadone program and admitted using marijuana. The mother became completely drug free when the child was about four. The child lived with the father from age two to age five. During this time, child protection authorities removed the child from the father’s care on three occasions, the last time for a period of 12 months under a two-year protection order. These interventions occurred as a result of concerns about neglect, emotional abuse and the father’s drug use and his mental health. When the child was six, child protection authorities arranged for him to be in the full-time care of his mother, who had re-partnered, had two other children and was living in stable circumstances. When the child was 10, the father applied for family court orders that would see the child’s time divided equally between the parents. The case involved ‘competing parenting applications … about a very vulnerable and needy child who had been exposed

to mistreatment, lack of proper hygiene and care, and who had for much of his life not received appropriate emotional nurturing’ (per Boland J [at [32]). The Federal Magistrate hearing the case made orders for the child to live week about with each parent with school holiday time being shared. The Family Consultant, who had reviewed the child protection department’s file, said (at [48]): Reading the subpoenaed material was a harrowing experience and the squalor and deprivation of [the child’s] living conditions throughout the time he lived with his father were abundantly evident. Nevertheless, the Family Consultant who interviewed both parents and the child recommended that he remain living with his mother and spend three days a fortnight with his father, with perhaps an increase of a day with his father. The mother appealed. The appeal was upheld, with an important conclusion of the appeal court being that the Federal Magistrate had failed to properly consider whether the father’s drug use, and the possibility that he may revert to the use of hard drugs, meant that the court orders would expose the child to an ‘unacceptable risk’. The matter was sent back to the Federal Magistrates Court for re-hearing.

Mallory and Alden [2009] FMCAfam 61 concerned a 56-year-old father and a 28-year-old mother. The maternal grandmother was 45 years old. They all lived in Orange and no-one was in paid employment. The maternal grandmother was employed until the end of 2007 when she left to look after the children. [page 265]

The mother and father commenced to live together in about May 2001 and they separated on 2 January 2007. ‘L’ was born in 2003 and ‘S’ was born in 2004. The mother had a history of mental health difficulties as a result of chronic schizophrenia and the father had a history of reliance on alcohol and illicit drugs. There were also a number of allegations that he had a history of family violence and sexual impropriety towards children. The mother had two other children: 11-year-old ‘D’ who was born in 1997 and ‘H’ who was born in 1999. H lived with her natural father and step-mother in the Hunter region. The father had nine children to various mothers. He maintained contact with some of his children. The father was not in a new relationship. Although the mother was in a relationship, she had no plans at that stage to enter into a live-in relationship. The maternal grandmother was not currently in any relationship. This case involved only the two girls, L and S, aged six and five. They were living with their mother, who had chronic schizophrenia, and her mother. The court was considering an application for contact by the girls’ father. Initially, both the mother and father had made competing applications for the girls to live with them. However, the Federal Magistrate hearing the matter, Lapthorn FM, had indicated neither of these applications had a prospect of success because of the mother’s mental illness and a range of issues relating to the father, including a history of drug and alcohol problems, a lack of suitable accommodation and allegations relating to family violence and child abuse. The girls involved in the case were the youngest of nine children the father had with various mothers. The Director General of the Department of Community Services (New South Wales) was an intervener in the case. By the time of the trial, the parties and the intervener had agreed that the orders for the children to live with the grandmother should be made. The main issues in the trial related to parental responsibility and the time

the children should spend with the father and whether it should be supervised. The judge found the evidence disclosed: a history of family violence perpetrated by the father upon the mother; the father’s criminal convictions for assault on a former partner; the father had pleaded guilty to assault occasioning actual bodily harm on the children’s elder brother who was fearful of the father and hyper-vigilant as a result of his treatment by him; the child protection department in another state had investigated an incident in which the father was alleged to have kicked the older girl and verbally abused her; and the mother had made allegations that the father had sexually abused the girls. In considering whether orders for contact would expose the girls to an unacceptable risk of abuse, Lapthorn FM noted (at [93]): [A]lthough in this case the mother has previously made allegations that the father has sexually abused the children they have never been substantiated. There appears to be suggestions that he has previously been spoken to by police in relation to complaints of a sexual nature involving children but there was no evidence to support any finding that he has in any way been sexually inappropriate towards children. [page 266] In considering the question of contact, his Honour took into account the evidence of an expert witness, a psychiatrist, about the father’s behaviour, his relationship with the children and the

circumstances in which any risks to the children arising from contact could be mitigated. He made orders that would see contact progress from limited supervised periods to unsupervised alternate weekends in four phases (at [118]–[119]): that contact occur for two hours every second Saturday at a contact centre for six months; then that contact take place from 10 am until 4 pm on Saturday on an unsupervised basis for six months; then contact was to be from 10 am until 4 pm on Saturday and Sunday every second weekend until the oldest child turned 11; and then, provided that the father had appropriate accommodation (of not less than two bedrooms with ‘all the usual facilities’), the children would stay from 10 am Saturday until 4 pm Sunday. The orders also restrained the father from consuming alcohol or illegal substances in the period 12 hours prior to, and during, his contact with the children. The parties were also ordered to attend the local office of the Department of Community Services to seek assistance. Orders for the maternal grandmother to have sole parental responsibility were also made, with the proviso that she consult the parents in relation to changes in arrangements for matters such as school and extracurricular activities. With respect to his Honour it is difficult to reconcile his finding that there was no evidence that the father posed an unacceptable risk of sexual abuse or violence to his daughters with the following evidence (at [74]): Further to the issue of violence there is a suggestion that the children may be at an unacceptable risk of sexual abuse if they were to spend unsupervised time with the father. The father was questioned about an incident in 1990 that led to proceedings in the Maitland Local Court concerning a child by the name of [J]. [J] was five or six

years of age at the time. It was put to the father that he had faced charges of a sexual nature. This was initially denied by him but he conceded that he had been spoken to about an incident whereby it was suggested he had fondled the child [J]. He said that he was given some paper work at court. It took some time under cross examination before he ultimately conceded that he was ordered not to go near the mother of [J]. In relation to violence against both the children and the mother, there was ample evidence of serious abuse. His Honour was aware of this when he said (at [64]): The records of the Department of Families South Australia show another disturbing incident that was said to have occurred on 1 November 2006. The neighbours of the father and mother reported to police that during the day the father and mother, who had been drinking, had a heated argument in the backyard. They alleged the father went up behind [L] and said to her ‘get inside you fucking little cunt’ and then kicked her so hard that she flew into the air landing on her back. They said that he then picked up a chair and threw it towards [D] but did not hit him. After the father and mother went inside the notifiers alleged they heard the mother say ‘put the knife down’. They did not see this however. The notes record other allegations of the father hitting [D] and pushing the mother’s head up against a cupboard in front of the children. When the police investigated they found a knife in one of the children’s bags.

[page 267]

In the matter of Kennedy and Leightons [2017] FamCA 71 before Cleary J, there was an abundance of evidence that the father of two children, B born in 2008 and C born in 2010, had sexually abused them. In addition the father disseminated child abuse material of which the children were the subject. The father was identified by name in the media by name and the nature of his crimes. At the time of the hearing the father was in jail convicted of the following charges: a.

disseminate child abuse material, s 91H(2) of the Crimes Act [1900 (NSW)];

b.

possess child abuse material, s 91H(2) of the Crimes Act;

c.

produce child abuse [material], s 91H(2) of the Crimes Act;

d.

cause a child to be used for production of child abuse material, s 91G(1)(b) of the Crimes Act;

e.

incite person to have sexual intercourse with a child under 10 years old, s 80G(1) of the Crimes Act. [at [3]]

Cleary J stated (at [4]) that the father would be released at the earliest 25 November 2019, at the latest, November 2021. His Honour also pointed out the burden being carried by the mother since mid-2015 when she learned from the New South Wales Police that the father was a paedophile and had used the children in making child pornography. The court found the father to be a threat to the physical, emotional and psychological wellbeing of the children and ordered the children spend no time with the father. The court further issued an injunction restraining the father from attempting to contact the children either in person; through a third party on

behalf of the father; by mail; by telephone; electronically; and otherwise by any means whatsoever. In relation to the surname of the children it was ordered that the mother could change that name without involving the father. Cleary J stated: [T]he mother may do all acts and execute all documents necessary to apply for the registrar of New South Wales Births, Deaths and Marriages, to amend the registration of the child’s birth to reflect the change of surname. See also Vaughn and Douglas [2011] FMCAfam 773.

5.57 In considering the capacity of a parent to provide adequately for the needs of the child, the court must consider the capacity of each party not only in the present, but also in the foreseeable future. One of the areas of conduct particularly frowned on by the court is the propensity to engage in derogatory and spiteful remarks about the other.

In Marriage of Smythe (1983) 8 Fam LR 1029; FLC ¶91-337, Marriage of Mills (1978) FLC ¶90-404 and Marriage of Keaton (1986) FLC ¶91-745, it was said in effect that the making of irrelevant or unfounded allegations can be highly disadvantageous. So much so, that the court will sometimes doubt whether a party irresponsible enough to make such allegations is responsible enough to have residence or contact with a child. See also Marriage of L and T (1999) 25 Fam LR 590; [1999] FamCA 1699.

[page 268] 5.58 In the matter following, an order that each parent attend a psychiatrist was made by recourse to the Family Law Rules 2004 (Cth).

In Salmon and Marin [2010] FamCA 1248, there was a parenting dispute where the children had lived with the father for several years. Both parties were ordered to attend for psychiatric assessment. The mother refused to attend, saying that she had ‘no need to’. O’Reilly J nevertheless made an order requiring her to attend, saying this (at [11]–[12]): If the mother does not attend, I will proceed pursuant to the Family Law Rules 2004, r 11.02(2) to dismiss her parenting proceedings on 14 March 2010, without more, unless in lieu of compliance with the court order the mother presents a report by a psychiatrist relating to recent psychiatric assessment. The court, of course, has a discretion not to hear applications by people in default of its orders in circumstances of demonstrated contempt. However, in this particular case, I would prefer to proceed pursuant to r 11.02(2).

The characteristics of a child and parents: s 60CC(3)(g) 5.59 In making a decision about the future of a child the Family Court is mindful of the characteristics of the child and/or the child’s parents. Characteristics may include the

level of maturity, special needs, talents, beliefs, traditions, physical, emotional and intellectual development or behavioural characteristics and even sexual orientation: Cannon and Acres [2014] FamCA 104. Religion 5.60 Article 14 of the UN Convention provides that: States Parties shall respect the right of the child to freedom of thought, conscience and religion. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

The religious beliefs of a parent or any other person are in themselves irrelevant to questions of with whom the child lives, first, because they are irrelevant to the child’s welfare and, second, because it is well established that the court should not assume that any particular religious beliefs are true, nor should it prefer one religion to another, or religious over non-religious beliefs. Religion is relevant to questions of with whom the child lives and with whom they spend time only because of its influence on the behaviour of the parents or others close to the children. It may be particularly relevant where the religious beliefs of a person require that person to adhere to an unusual lifestyle or approach to child rearing. The most commonly encountered problem is where a parent or person seeking that the child live with them proposes,

[page 269] in accordance with religious beliefs, to impose very tight control on the child or keep the child separate from other children or other members of the family. Equally it may be seen as detrimental to the child to have large amounts of time taken up in religious practices which conflict with the usual and normal activities of children. In such circumstances, the aspiration of the Family Court is to find the right balance between promoting the child’s welfare and maintaining strict neutrality between different religious views and practices: Marriage of N (No 2) (1981) 7 Fam LR 889; FLC ¶91-111; Marriage of Sheridan (1994) 18 Fam LR 415; FLC ¶92-517; Marriage of Morrison (1995) 19 Fam LR 662; FLC ¶92-639; Elspeth and Peter [2006] FamCA 1385.

In Elspeth and Peter [2006] FamCA 1385, in a decision by Benjamin J heard after the 2006 amendments, the mother, who was a member of the Exclusive Brethren (a very strict sect whose members live separately from non-Exclusive Brethren members), sought orders giving her sole parental authority for the three children of the marriage. In addition, she asked that there be no orders made requiring the children to spend time with their father. The father, who had left the Exclusive Brethren, made application that the three children of the parties live with him, that the parents have equal shared parental responsibility and that the children spend time with their mother. Benjamin J made orders that the parents should have shared parental responsibility, but that the children should live with the mother. In relation to the time the children were to spend with their father, his Honour ordered only that the children see their father on a regular basis. Benjamin J did not find it appropriate on the

facts of the matter that orders for substantial or significant time spent with the father were in the best interests of the children. His Honour stated (at [316]): Whether the opposition to children having a meaningful relationship with one of their parents arises from a particular view of an individual or a view of a community, it cannot stand in the face of Commonwealth laws which impose upon parents an obligation to ensure that the best interests of a child are generally met by having such a relationship with both parents. It is noteworthy that the children expressed a view that they should not see their father unless he returned to being a member of the Exclusive Brethren. Benjamin J declined to give weight to those views. The children were aged 16, 12 and eight years. With regard to the views expressed by the child of 16 years that she did not wish to spend time with her father, Benjamin J stated (at [333]): L is aged sixteen and has expressed strong views about seeing the father. Normally at that age, those views would not be departed from. However, in the factual circumstances of these proceedings as set out in these reasons, I believe that, whilst those views are given significant weight I ought not to be bound by them. Refer to Peter and Elspeth [2009] FamCA 551.

In Macri and Macri [2010] FMCAfam 662 McGuire FM heard a parental dispute as to the religious upbringing of children of eight and 10 years of age. The issues and the court’s decision were summarised at [45]–[47]. In bringing down a decision McGuire FM followed the path laid down in ss 60B, 60CA and 60CC of the FLA:

[page 270] The issue of religion is obviously important to each parent … The mother practises the Jewish religion. It is understandable that she would like to have her children follow her into that religion and enjoy the practice of the religion with her. It is clear from the evidence that she sees the Bar or Bat Mitzvah to be a fundamental step in that process. The issue of religion is also important for the father. He takes a more secular view and believes that the children should decide when they are sufficiently mature but importantly he advocates a fully informed decision. I prefer the view of the father in respect of this issue. Australia is a multicultural and secular society. These children are fortunate in that they have the opportunity to directly experience the culture and traditions of the religions practised by each of their parents. Neither parent seeks a prohibition on general attendance and enjoyment of religious observances and events. Essentially, the mother wants to commit the children now. The father’s view is that such a decision should be deferred. I have no evidence before me that the deferring of a decision even at the age of 13 or 12 would prohibit a later choice to enter the Jewish religion. Indeed, this is the very point given that the children are now only 10 and eight years of age. It may be, on the father’s case, that the children convince him at the age of 13 or 12 that they are sufficiently mature to make an informed and voluntary choice. For the moment, I prefer the position of the father that such a decision not be made for them at this stage. I intend to make the injunctive order sought by the father. McGuire FM was not prepared to disallow the mother from

taking the children to a Jewish youth group, saying (at [30]): I do not see that the children’s attendance at the Jewish youth group to be inconsistent with the father’s position or his ideological views. Indeed, the evidence suggests to me that the father’s quest for the children to receive a basic understanding of each religion to allow them to make an informed and mature choice is in part achieved by them attending a children’s youth group. It is for a period of two hours only. It will occur only every second Sunday. There is no evidence that it requires ongoing commitment to the Jewish religion or involves any formal ceremony or initiation. See also Morgan and Morgan [2012] FamCA 394; Peel and Hannan [2013] FCCA 196; Jollie and Dysart [2014] FamCAFC 149; Mertens and Mertens [2014] FamCA 475; Millson and Millson [2014] FCCA 247.

Aboriginal and Torres Strait Islander culture: s 60CC(3)(h) 5.61 Until recently the court has sought to adopt the position of neutrality, not considering Aboriginal culture as deserving of any special merit. If a case arose where the child was well established in an Aboriginal community, it was seen to be in the best interests of the child that he or she remain there on the basis of the status quo and other prevailing factors rather than Aboriginality. But now as a matter of policy the common law has extended its view. This has led to the adoption of the ‘Aboriginal Child Placement Principle’ which indicates that where it is possible to place Aboriginal children with members of their extended family or within other Aboriginal communities, it is important to do so. Subsections 60CC(3)(h) and 60CC(6) of the FLA confirm the

expansion of the common law in Marriage of McL (1989) 15 Fam LR 7; (1991) FLC ¶92-238 and B and R and the [page 271] Separate Representative (1995) 19 Fam LR 594; FLC ¶92-636 as to the relevance of the need to maintain a child’s connection with the lifestyle, culture and traditions of Aboriginal peoples and Torres Strait Islanders, when making decisions about their best interests. Aboriginal peoples and Torres Strait Islanders are now referred to specifically in the new para 60CC(2)(h). This provides that the court must take into account the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture, and the likely impact that any proposed parenting order will have on that right. This paragraph supports recommendation 4 in the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The objects contained in s 60B of the FLA give legislative voice to the depth of the importance to be accorded to culture and tradition. Section 60B(2)(e) states: (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

This objective is supported by s 60B(3) which provides: (3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his

or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture.

See also ss 60B(2)(e) and (3), 60CC(6) and 61F.

The case of B and R and the Separate Representative (1995) 19 Fam LR 594; FLC ¶92-636 concerned the custody of a twoyear-old child with an Aboriginal mother and non-Aboriginal father. The Full Court overturned the trial decision, which was made on the basis of the exclusion of evidence of the experience of Aboriginal children brought up in non-Aboriginal families. Fogarty, Kay and O’Ryan JJ held (at 623): By failing to recognise these uniquely Aboriginal experiences, its effect is to administer something less than equal justice to the Aboriginal people. By pretending that these experiences are not what they are — tragic, relevant and unique — this approach treats Aboriginal people as if they were not who they are. It recognises less than their complete identity and humanity. This is an effect which this court finds objectionable, and the approach taken is one which we reject. … Evidence of the type sought to be called in this case raised a relevant and potentially important issue in the

determination of the best interests or welfare of this child.

[page 272]

In Marriage of McL (1989) 15 Fam LR 7; (1991) FLC ¶92-238, it was held that the extended Aboriginal family was more positive than the European upbringing available if the children were to live with their father. Rourke J stated (at 24): It seems to me to be quite inappropriate to judge the standards of accommodation available at Birany Birany by reference to a European yardstick. Birany Birany is an Aboriginal community offering a lifestyle markedly different from that available in a conventional Australian community. For reasons associated with their Aboriginality it appears to me that the boys’ prospects of growing up as well adjusted individuals will be positively enhanced if they are allowed to live in a community in which they are already accepted as part of a caring extended family. See also M and L (Aboriginal Culture) [2007] FamCA 396; Oscar and Acres [2007] FamCA 1104; Davis and Spring [2007] FamCA 1149; Dunstan and Jarrod [2009] FamCA 480.

Thompson and Dean [2011] FMCAfam 1074 revealed a wonderfully compassionate and passionate judgment from Harman J. The matter before the court concerned two children, ‘X’ born in 2007 and ‘Y’ born in 2008. The question before the

court was with whom the children would live and with whom they would spend time. In bringing down a decision that the mother, Ms Dean, have sole responsibility for making all and any decisions regarding the children’s day-to-day care, welfare and development and that they live with their mother, his Honour made a long list of orders. Of particular importance was the following injunction made pursuant to s 68B of the FLA against the father Mr Miller and his mother Ms Thompson and her husband. His Honour made orders in the following terms: That pursuant to s 68B of the Family Law Act 1975 Mr Miller and Ms Thompson and Mr Thompson shall be and are hereby restrained as follows: (a) From approaching, contacting or attempting to contact Ms Dean or either of the children by any means whatsoever including through third parties; (b) From approaching Ms Dean or either of the children or place of residence or her place of work or within 1 km of same; (c) From approaching within 1 km of any school, preschool, day care centre or other service attended by the children [X] and [Y] at any time. His Honour continued: I note that the above restraints are orders to which an automatic power of arrest attaches pursuant to s 68C and upon any police officer on reasonable grounds believing that there has been a breach or attempted breach of those injunctions and in the event that any police officer is so satisfied then the offender is to be arrested without warrant and brought before me at the first available opportunity or if I am unavailable before another Federal Magistrate.

Having protected the mother and children by injunction, Harman J continued his judgment by making multiple orders to support the mother in her role as a parent. [page 273] His Honour turned his attention to the father (at [6]–[7]): I am satisfied, on the evidence that is before me, that Mr Miller is fully aware that the matter is listed before the Court today and was listed yesterday and that he has made no attempt to participate in the proceedings today or previously. There has been no approach to the Court by Mr Miller seeking that he be brought to this Court by order under the Prisons Act and there has been no application to attend by video link or otherwise. Accordingly, I am satisfied that Mr Miller is aware of the proceedings and has been afforded procedural fairness. Further, I am satisfied that Mr Miller through his own actions, consistent with his demeanour, personality and character — as to which I will make findings in due course — that he has sought to absent himself from these proceedings. That has, no doubt, been in the full knowledge that his actions would be the subject of substantial criticism and, indeed, that it would in all probability be a fruitless exercise as it was never possible, on the evidence available, that Mr Miller could obtain any substantial order in his favour. Indeed, I do propose to make orders that address Mr Miller’s relationship with these children in the nature of s 68B injunctions to protect them from him. Having been satisfied that both the applicant and Mr Miller, the children’s father, are aware and on full notice of the proceedings and the orders sought and the

evidence relied upon, I am satisfied the matter can and should and has properly proceeded before me today. His Honour said of Ms Dean (at [13]–[15]): Ms Dean is an Indigenous Australian and the disadvantage which her people have historically suffered and which she continues to suffer as a consequence of historical and systemic disadvantage can be addressed and should be addressed in a number of domains but in the context of this case can and should be addressed in ensuring that her legal rights are protected and noting that Indigenous Australians are people for whom the Commonwealth also has a special responsibility and, indeed, a special legislative capacity. … Ms Dean has also been the victim of substantial domestic violence. She has not, on her own evidence, had the most stable of upbringings, but that is no fault of hers and is the fault of others and not only within her own family but institutionally and beyond. As a consequence, Ms Dean’s education is not as complete as it might have been. That is not to suggest that Ms Dean is in any sense unintelligent, but purely that she has not had the benefit, as every Australian has the right, of a fulsome education to ensure that she can achieve her full potential in life. And as such the assistance that has been provided to her has been an assistance substantially to her but also to this Court, because otherwise her story would not be fully before this Court in any meaningful way and the affidavit that has been filed with the assistance, although not representation, of the Commission puts the Legal Aid Commission exactly where it should be, in a spotlight deserving of praise, support and ensuring that they are able to continue the work that they do.

When His Honour turned to the evidence before him he discussed the father thus (at [24]–[26]): Exhibit ICL1 is a useful and comprehensive summary of allegations of domestic violence and criminal behaviour of Mr Miller and which are corroborated by reference to tendered documents ICL2 being COPS [Computerised Operational Policing System] event entries from the New South Wales Police. The four page summary of assaults, by the father, Mr Miller, commencing in 2002, and against Ms Dean and members of [page 274] his family are extensive and disturbing. The assaults include assaults by him upon his parents and each of them, Ms Dean, his brother, the police and strangers. There are also events in relation to assaults by Mr Miller’s brother, Mr M, including sexual assaults upon minors. Similarly, these are concerns which one can infer Ms Thompson is aware of as she has referred to them in interviews with the report writer Ms C. Ms Thompson is reported as remarking that Mr M, then on the run from New South Wales Police and resident in Queensland, has ‘been in some trouble in Queensland’. That no doubt relates to the two allegations of sexual assault upon minors that are levelled against him and for which he is still sought to be questioned in Queensland. There were also other matters that have caused Mr Miller to come to the Queensland justice system’s attention in relation to breaching bail, although it is unclear what he was on bail for, and convictions in relation to threats to cause serious harm, possessing dangerous drugs, possessing utensils and using a

telecommunications device to make threats. They are very consistent with his New South Wales criminal record wherein he has charges and convictions in relation to assault, menacing driving, damaging property, contravening domestic violence orders, stalking and intimidating and the like. In further evidence of the extreme violence of the father, Harman J found (at [44]–[45]): This case contains the most horrendous and detailed allegations of family violence. Exhibit ICL2, which comprises COPS event entries, is littered with Mr Miller’s sadistic, pathetic and entirely unacceptable behaviour towards the range of people I have previously referred to but also towards other sentient beings. On 22 June 2008, Mr Miller saw fit to beat to death Ms Dean’s dog, and to do so in front of her and in front of one of the children. There are a number of entries dealing with that incident. … Harman J then revealed his interest in the horrible correlation between violence to animals and humans. He said (at [45]): The importance of that, at the risk of being self-effasive [sic], is made clear in an article that I published earlier this year regarding ‘Pets in the context of family law’ and which reviewed case law dealing with that very issue. In referring to his paper ‘Pets in the Context of Family Law’, Harman J cited a study carried out in America thus (at [46]–[47]): That paper made reference to a study by the Centre for Prevention of Domestic Violence in Colorado Springs, Colorado, which reported the types of cruelty towards animals demonstrated by parents who had a history of being abusive or violent. It went on to indicate that as part of a diagnostic tool for assessing the impact of violence and the likelihood that violence would occur,

that the most important screening tools for domestic violence were whether the partner has threatened to harm animals, whether the partner has injured or killed animals, whether they have removed or threatened to remove animals, whether they have had animals destroyed or threatened to. The Colorado review goes on to indicate: Modern literature on domestic violence recognises that such actions and particularly such threats are a method utilised by perpetrators of violence and abuse to gain psychological control over their victims. This approach and the recognition of the propensity for violence or abuse towards people if violence is threatened against animals is longstanding within our legal system.

[page 275] Harman J, with reference to Mahatma Gandhi, said (at [49]): That is perhaps a stark aspect of the evidence that demands attention, as one cannot help to be struck, as in the words of Gandhi: One focussing upon a person’s humanity by the fashion in which they treat other sentient creatures.

His Honour continued (at [50]–[54]): To read that this sick and pathetic creature, Mr Miller, is observed by Ms Dean leaning on a tree and stomping on her dog’s head is compelling. When questioned what he was doing Mr Miller simply replied coldly, ‘I’m going to kill it’. At this time the daughter of the parties was there and was removed by her mother. The daughter, it would appear, observed this. The dog was then dragged to a ute. He took a gun, shot the dog and threw it in a river. That perhaps leaps out, but also so does the balance of allegations.

It is suggested that in January 2007 this man, using that term loosely, suggested: I’m going to dig up my shotgun and I will be there, you black slut, and I will get rid of you and the baby. I’m coming down there, I’m going to get that gun and come and put a bullet in you and the baby.

This is the father of this child. Mr Miller is similarly reported as assaulting his mother, his father, his brother Mr M, and as I have previously indicated, police and random strangers. It is quite clear from the COPS entries that Mr Miller speaks to his mother in the same terms, although she not being Aboriginal, is spared being referred to in derogatory fashion by reference to her colour, but he refers to her as a ‘slut’ and a ‘cunt’. This is a man who clearly has no ability to demonstrate respect for any person and particularly not women. His difficulties are no doubt exasperated by what is made clear in all of the material being that he is a chronic, long-term user of marijuana. That is no doubt something that might be addressed whilst he is in a correctional facility, and one would hope, for his benefit and that of the community upon his release, that it might be. His Honour also registered disquiet in relation to the paternal grandmother of the child. He stated (at [55]–[56]): I have dwelled upon these matters to make clear that violence is at the centre of this case. Violence is also of some relevance as to the issues that have arisen with respect to Ms Thompson, who was the applicant in these proceedings. The allegations of violence by her son relate to Ms Thompson in two ways. Firstly, there had been orders in place for time to occur between these children and their grandmother but on condition that they not have contact with, or be brought into

contact with, Mr Miller. It is to be remembered that at the time of those orders Mr Miller was on the run from New South Wales police and in Queensland. Notwithstanding the order Mr Miller was contacted repeatedly and/or made contact repeatedly with his mother who, presumably, had some knowledge of his whereabouts but didn’t share that information with the relevant authorities, notwithstanding the time that was devoted by her to contacting the Police and the Department of Community Services in relation to Ms Dean. Harman J also expressed reservations as to whether the paternal grandparents had any appreciation of the violent nature of their son and its impact on the lives of the mother and child. His Honour stated (at [57]–[59]): It is suggested by the Independent Children’s Lawyer that this demonstrates a lack of ability to protect these children, or to shield them from violence. Indeed, that is [page 276] apparent from Ms C’s [Family Consultant] report. Mr Thompson, Mr Miller’s father, is suggested at paragraph 6.17 as saying, ‘Mr Miller had issues that he had to deal with and straighten his life up as well’. One can infer from the manner in which this is stated that Mr Miller is perceived by his parents to have problems but problems that are nowhere near as grave as those perceived of Ms Dean. Mr Thompson goes on to indicate that: Both Mr Miller and Ms Dean have found their responsibilities too great, and it ended in domestic violence.

Ms Thompson is reported as saying: … that her son had his problems, but at least when her son was there she knew the children would have food to eat. Ms Thompson said that when her son was not there she worried that the children had food and were clean.

With regard to the Aboriginal background of the mother and child his Honour said (at [93]–[96]): The children are clearly of an aboriginal/Torres Strait Islander background, although with respect to same it was suggested in Ms Dean’s evidence, when asked whether Ms Thompson loved the children, that she did not necessarily agree with or adopt that proposition. She answered: She witnessed me being choked and chucked around in the car. She’s the most evil, manipulative woman in the world. She’s very spiteful. She doesn’t acknowledge the children’s aboriginality. I don’t trust them like I used to. The wall of respect has slowly deteriorated after all the things they’ve done to me. She didn’t want any little black grandchildren.

That suggests to me, accepting that evidence, that Ms Thompson has no capacity to support, encourage, or play any real active role in these children’s aboriginality or embrace their culture and, indeed, represents some potential danger to that occurring. Similarly, Mr Miller, reported as he is as referring to this aboriginal mother as a ‘black cunt’ is unlikely to bring any benefit to these children’s cultural appreciation or sense of self. Clearly, not being indigenous, Ms Thompson is not in a position to enjoy that culture with these children as a person who shares the culture. The exercise of culture under the Act is not an object of itself. It is not an exercise in political correctness. The enjoyment of culture by a parent with a child is an important and fundamental element in that relationship being

meaningful, the very act that this court must try and achieve and, under international law, the right of these indigenous children and this indigenous mother.

The importance of the provisions of s 60B(2)(e) that all children have a right to enjoy their culture is illustrated in Abdoo and Essey [2011] FMCAfam 772. See also Christie and Holden [2013] FamCA 1009; Dover and Dwight [2014] FamCA 346. In relation to matters with allegations of despicable animal cruelty see Withers and Russell [2016] FamCA 793; Goddard and Hilditch [2016] FamCA 631; Bramford and Ainslee [2016] FamCA 463; Isaac and Isaac [2016] FCCA 2397. Parents’ attitude to the child and to the responsibilities of parenthood: s 60CC(3)(i) 5.62 In many family circumstances which are beset by dysfunction, the Family Court may be critical of one or both parents and the manner in which parental [page 277] responsibilities are carried out. Implicit in the parent–child relationship is delineation between the nurturing and caretaking role of a parent and the needs of a child to be simply a ‘child’. As more knowledge is gained of dysfunction between the role of a parent and the emotional and physical needs of a child, the language of the law adapts. For example, two relatively new concepts that have their genesis

in American family law are ‘parentification’ of a child and an ‘enmeshing’ of the parent–child relationship. In simple terms the awkward terminology of ‘parentification’ relates to a child having their needs sacrificed in order to take care of the needs of one or both of their parents. In some circumstances the ‘parentification’ of the child is so extreme that in effect the child is expected to play the role of a ‘spouse’ in order to take on the responsibility of being a ‘parent’ to their own parent/s. Where the ‘parentified’ child has siblings it is very likely that their nurturing, emotional and physical needs may fall to the child who has been chosen to fulfil the role of a pseudo parent. The enmeshing of the parent and child relationship is interrelated with ‘parentification’ of a child but there are some differences. Enmeshment is more difficult to recognise because the characteristics may simply be that of a very strong bond between parent and child. This bond, however, is gained at the expense of the child being allowed independence of thought: he or she must always be attuned to the feelings and needs of the parent. In effect, the child is expected to assume the thoughts and values of the parent. As with parentification of a child, the enmeshed parent has little interest in allowing the child to have an identity which is separate from the parent. It is the parentification of a child with which the Family Court is most concerned. It is, however, not difficult to imagine the confusion of a child adjusting to an ongoing radical change to their daily life.

Rafferty and Spencer [2016] FamCAFC 97 concerned a child E

born in 2009. The mother had been the primary carer of the child and the father spent specified time with him. This changed dramatically when on 6 August 2015, following a trial of the parents’ competing applications for parenting orders, Cassidy J made final parenting orders that the child live primarily with the father and spend specified times with the mother. The judgment of Cassidy J effected a fundamental change to the child’s living arrangements as E had always lived primarily with the mother since the parties separated in August 2009 when E was only about four months of age. This change was made on the basis that E was at risk of emotional abuse in the home of the mother. The mother unsuccessfully appealed to the Full Court of the Family Court before Thackray, Ainslie-Wallace and Kent JJ. The Full Court upheld the judgment of Cassidy J on close examination of the findings of her Honour. The Full Court (at [11]) said: [T]he findings of the trial judge, none of which are challenged on appeal, may be summarised and paraphrased as follows: a)

The mother has a current belief that the father has sexually abused the child;

b)

This belief hampers the mother’s capacity to provide for the child’s emotional needs; and in circumstances where it is important for the child to have a relationship [page 278] with both of his parents that is positive, the mother is not able to support the father/child relationship in the long term;

c)

The risk of the child being exposed to this belief, in

circumstances where there is no evidence to support it, raises real concerns for the child’s emotional wellbeing; d)

The child’s emotional wellbeing is at risk from the mother’s belief via the mother perpetuating allegations and engaging the child in false allegations;

e)

The mother has recounted allegations of sexual abuse of the child by the father to others, in the presence of the child;

f)

The mother’s exposure of the child to allegations of sexual abuse may, in and of itself, create a risk of emotional abuse of the child;

g)

One of the allegations of sexual abuse advanced by the mother at trial was fabricated by her; and in relation to the other allegations, there is no unacceptable risk posed by the father;

h)

The mother has presented the child on a number of occasions for medical testing in relation to allegations of sexual abuse and if this continues there is the risk of emotional harm to the child;

i)

The mother has involved the child in negative discussions about the father and has involved the child in these proceedings through both the sexual abuse allegations and those discussions; there is an unacceptable risk of emotional abuse to the child in the mother’s household;

j)

There is a risk of emotional harm in the mother’s household and a need to protect the child from being exposed to the risk of that harm in the mother’s household;

k)

The mother has made unilateral decisions that have

not been child focused. Examples are the relocation of herself and the child to Town T without any consent from the father. Another example is the mother ceasing time with the father regularly on the basis of medical certificates, without discussing with the father the prospect of the child being able to come into his care whilst he was unwell. [references to paragraphs of the Reasons for Judgment of the trial judge omitted]. The mother appealed the decision of Cassidy J arguing that insufficient attention was paid to her suggestions of alternative ways of dealing with the problem that she ‘posed an unacceptable risk of emotional abuse’ to E. The mother suggested the following options in lieu of ordering that the child live with the father: i)

The findings of the trial judge being provided to the police and to the Department of Child Safety;

ii)

Compelling the mother to attend ‘counselling to work on her attitude and responses’;

iii)

Making interim, rather than final, orders; and

iv)

Making an order pursuant to s 65L of the Act. [at [6]]

The Full Court did not find the ‘options’ compelling. In particular the court discussed at length (at [13]–[20]) the total lack of evidence as to the utility of these ‘options’ or how their implementation would address the question of emotional abuse to E. Having examined thoroughly the reasons leading to the finding of Cassidy J that the child E was at an unacceptable risk of emotional abuse in the mother’s care and a need to protect the child from that risk, the Full Court unanimously dismissed the appeal of the mother. She was also ordered to pay the costs of the father.

[page 279] It is not difficult to find relocation matters which appear unfair and onerous to the parent with whom a child lives (usually the mother). In the matter following, the mother gives no indication that she intends to deprive the father of time with the children of the marriage. The appeal was allowed with all three judges being unanimous that the real question to be addressed by the trial judge ought to have been the amount of time that the children and father spend together.

Deacon and Castle [2013] FCCA 691, before Harman J, involved two children — X aged 11 and Y aged nine. Child X lived with the father and Y with the mother. Harman J stated (at [1]): What is highlighted by this case, (and a prominent feature of the evidence given over the six days of the proceedings), is the danger posed to children not from outside their family and inflicted by strangers but from within their family and inflicted by those seized with responsibility and professing love for them. His Honour was referring in part to the estrangement of the mother and the child X. In addition, the evidence accepted by the court led to a conclusion that the child X had been ‘parentified’ by the father and that their relationship was an enmeshed one. Both children gave views of wishing to live with the father.

Nevertheless, Harman J considered it in the best interests of both children that the mother be given sole parental responsibility for X and Y, and that X and Y live with the mother. Of the dangers of parentification or the enmeshing of the relationship between Y, X and the father, his Honour said (at [494]): X’s independent will and personality are entirely crushed and subsumed by her enmeshed relationship with her father and with the simultaneous consequence that I am satisfied that: a.

The nature of the enmeshed relationship represents an unacceptable risk to X and Y (who whilst not so enmeshed as her sister has the potential to be further enmeshed and impacted) immediately;

b.

Failure to address that relationship (which the evidence satisfies me can only occur through removal) has disastrous long term and predicable and likely consequences for both girls.

See also Morgan and Morgan [2012] FamCAFC 394; Gillespie and Gillespie [2013] FCCA 872; Jollie and Dysart [2014] FamCAFC 149.

In Somerville and Somerville [2014] FCCA 695 at [23] Altobelli J quoted expert evidence from a Dr S in relation to the four children the subject of the matter before the court. The evidence of Dr S provides a very clear explanation of the effects of ‘parentification’: The children in their relating to the mother show features of pseudomaturity and parentification. The children are parentified, in that they are focussed on meeting the

mother’s needs, rather than able to securely expect her to meet their needs. They must [page 280] meet the mother’s need for them to mirror her preoccupation and distress, and affirm her central and exclusive significance to them. Particularly damaging has been the children’s role in meeting the mother’s current need for the danger and drama of the separation to match her intense inner turmoil about the experience. The children are mature in their knowledge of adult matters, but the maturity is ‘pseudo’ in that it is not backed up with neurodevelopment or life experience, and thus creates anxiety in them. The children (with the partial exception of Y) have developed an anxious-avoidant attachment style with the mother. They have learnt to suppress or avoid negative emotion, whilst self-reliantly getting about meeting their own needs. This compliant, pleasant, selfreliant relational style avoids the disappointment of unmet need, or the danger of maternal decompensation or aggression in response to the demands of the child’s need.

Family violence: s 60CC(3)(j) and (k) 5.63 As we have stated throughout this chapter (and see Chapter 10), family violence continues to be a factor not just in matters before the Family Court but in society generally. The nature and impact of family violence upon a child has been considered at great length and continues to be given

significant attention by the legislators and the courts. The Family Court must take into account any allegations of family violence and the nature and extent of family violence orders. The likelihood of finality: s 60 CC(3)(l) 5.64 The court looks at the facts before it to determine what is not only in the best interests of the child but to also bring an end to the litigation. The aim of this section is for the court to make parenting orders that are final. In saying this, the cases discussed throughout this book indicate that it is a difficult aim to achieve. Any other issues taken into account: s 60CC(3)(m) 5.65 The breath of discretion that the Family Court enjoys is reflected by this section. The court may take into account any factor it believes has an impact on the best interests of the child.

Variation of parenting orders 5.66 An application for the variation of a parenting order presents a dichotomy to the Family Court. On the one hand is the need for stability in the lives of children, while on the other is the ideal that the best interests of such children be maintained in the face of changed circumstances.

Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 is the leading case on the variation of parenting orders in which the Full Court of the Family Court established the principles applicable to an application for the variation of a

parenting order. Evatt CJ (with whom Pawley SJ and Fogarty J agreed) stated (at 572): [page 281] The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

The matter following discusses the emotional, financial and public policy reasons why the Family Court is reluctant to set aside parental orders without very good reason.

In Marriage of Freeman and Freeman [1986] FamCA 23 before Fogarty, Bell and Strauss JJ the husband appealed a decision by Treyvaud J which, inter alia, granted custody (as it then was) of the two children of the marriage to the wife. In dismissing the application of the husband to vary the order of Treyvaud J by granting the husband custody of the children, Strauss J stated (at [3]):

Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian to deal with the present and plan for the future of the family. It is financially burdensome. … Stability in the lives of children and also in the lives of adults is an essential pre-requisite to wellbeing. His Honour then considered community expectations in relation to parental orders made by the Family Court, saying (at [3]): Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are a part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighted new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that these new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children. See also Miller and Harrington [2009] FamCAFC 12; Marsden and Winch [2009] FamCAFC 152; Newman and Wallace [2012] FMCAfam 523; DL and W [2012] FamCAFC 5; Langmeil and Grange [2013] FamCAFC 31; Prewett and Mann [2013] FamCAFC 130; Edwards and Simpson [2013] FCCA 14; Terry and Mammone [2013] FCCA 1587; Bretton and Bondai [2013] FamCAFC 168; Carriel and Lendrum [2013] FCCA 284; Travis and Weaver [2014] FCCA 1279. Also refer to s 70NBA.

Contravening parenting orders 5.67 Even where the parties have filed an application for consent orders or the court has handed down final orders following what may have been lengthy litigation, a [page 282] parent may still not adhere to those orders. The parent alleging a contravention to orders may bring an application before the court. The meaning of contravening an order is set out in s 70NAC of the FLA. Section 70NAE provides some guidance for a parent who claims they have a reasonable excuse to contravene existing orders; also see s 70NDA. Where the respondent in proceedings has no reasonable excuse for contravening the orders the court has wide powers in the sanctions that can be applied: refer to Pt VII Subdiv F. See also Valdez and Frazier (No 2) [2014] FamCAFC 150; Nada and Nettle [2014] FamCAFC 123; Enmore and Smoothe [2014] FamCAFC 131.

Parens patriae or welfare jurisdiction of the Family Court 5.68 ‘Parens patriae’, which when translated from Latin means ‘parent of the nation’, is a legal doctrine derived from ancient English common law which grants the inherent

power and authority of the state to protect persons who are legally unable to act on their own behalf.

In Marion’s case (1992) 15 Fam LR 392 at 415–16; FLC ¶92-293; 175 CLR 218, before Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, the nature of the parens patriae power was the subject of discussion. In a joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ, their Honours cited a 19th-century case: In Wellesley v Duke of Beaufort, Lord Eldon LC, speaking with reference to the jurisdiction of the Court of Chancery, said [[1827] EngR 268; (1827) 2 Russ 1 at 20; 38 ER 236 at 243]: [I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is 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.

In modern times the doctrine of parens patriae embodies the principle that political authority carries with it the responsibility for such protection. The state, acting as parens patriae, can, for example, make decisions regarding treatment on behalf of a child who is mentally incompetent to make the decision, but the extent of the state’s intrusion is limited to reasonable and necessary treatment. This inherent power is generally supplemented by legislative Acts that define the scope of child protection in a state. Under its parens patriae power, the Family Court of Australia has jurisdiction to authorise certain medical procedures where a child is incapable of giving consent.

Whether the proposed treatment or intervention is outside the scope of a parent to consent to on behalf of his or her child is dependent on the nature of the medical treatment. Court authorisation for medical treatment is required where there is a significant risk of making the wrong decision, either as to a child’s present or [page 283] future capacity to consent, or consequences of a wrong decision are particularly grave. It is an established principle that a minor is capable of giving informed consent to medical treatment when he or she achieves a sufficient understanding and intelligence to enable him or her to fully understand what is proposed. Consent to treatment is particularly complex when the recipient of medical care is a small child or adolescent. In recent decades, the question of a minor’s competence to give or refuse consent was brought into sharp focus in the courts of various countries by way of contraception and sterilisation matters, and it has more recently been considered in Australia in the context of sex affirmation procedures in children. As medical and scientific advances are made, so too is there an increase in matters coming before the Family Court in relation to the health of a minor. The power of the Family Court to make orders in relation to the welfare of a child is to be found in Pt VII of the FLA. The original FLA included provisions dealing with guardianship, custody and access. Amendments to the FLA in 1983 added power to make orders relating to the ‘welfare’ of the child. At that time jurisdiction encompassed only children

of de jure marriages, but was subsequently extended in Australia by the Family Law Amendment Act 1987 (Cth) to include children of all relationships. The welfare jurisdiction amendments were approved by the High Court in Marion’s case where the majority stated (at 415): What was achieved by the amendments of 1983 and was not rescinded by the change to the Act in 1987 was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction. And we agree with McCall J in the present case [Re Marion (1990) 14 Fam LR 427 at 480; (1991) FLC ¶92-193 at p 78,328] that the fact that the Family Court ‘may not have the power to make a child a ward of the court does not … prevent it exercising the general parens patriae power with respect to children’.

The welfare power as it now exists under s 67ZC was inserted in the FLA by the Family Law Reform Act 1995 (Cth). The intention of the enacting government was made plain in the Family Law Reform Bill 1994 (Cth) Explanatory Memorandum at [328]. There it was stated: The new section 67ZC provides the court with jurisdiction relating to the welfare of children in addition to the jurisdiction that the court has under Part VII in relation to children. This jurisdiction is the jurisdiction, similar to the parens patriae jurisdiction, explained by the High Court in [Marion’s case (1992) 175 CLR 218 at 258–9].

No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are

merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. The courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power. [page 284] Section 67ZC of the FLA provides for orders relating to the welfare of children: (1) In addition to the jurisdiction that a court has under this Part [VII of the Family Law Act] in relation to children, the court also has jurisdiction to make orders relating to the welfare of children. (2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

The breadth of the jurisdiction of the Family Court under s 67ZC (and related provisions) was tested by the Full Court of the Family Court in a decision later overturned by a unanimous judgment of the High Court. These matters are often referred to as ‘the children in detention’ cases.

B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 75 ALD 64; 30 Fam LR

181 came before Nicholson CJ, Ellis and O’Ryan JJ by way of an appeal from a decision of a single judge. The matter concerned applications made to the Family Court, seeking orders that the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) release a number of children of a marriage who were being held in detention with their parents under the Migration Act 1958 (Cth) (Migration Act). Alternatively, orders were sought for the protection of the children while they remained in detention under the Migration Act. The Full Court of the Family Court held, on appeal from a judgment of a single judge of the Family Court, that the court had jurisdiction under the FLA to make the orders against the Minister. Their Honours found: The welfare jurisdiction of the Family Court extends to all children of marriages in Australia, including those in immigration detention, where the orders sought arise out of, or are sufficiently connected to, the marriage relationship: at [313], [410]. The court’s welfare jurisdiction is akin to the parens patriae jurisdiction and is a valid exercise of constitutional power where the subject matter of the order is connected to the marriage, divorce and incidental powers contained in s 51(xxi) and (xxii) of the Constitution: at [234]–[236], [410], [412]. In reaching a decision favourable to the children in detention, the Full Court of the Family Court determined that the Family Court pursuant to s 67ZC of the FLA had jurisdiction to make orders in respect of non-citizen children held in immigration detention. The Full Court considered that aspects of the United Nations Convention on the Rights of the Child had been incorporated into the welfare provision: s 67ZC. The majority of the Full Court referred in particular to paragraphs (b), (c) and (d) of Article 37 of the UN Convention and found that the indefinite detention of children is incompatible with the Article and constituted a

‘serious breach of Australia’s obligations under the Convention’. Article 37 provides: States Parties shall ensure that: (a) No child shall be subjected to … cruel, inhuman or degrading treatment or punishment. …; [page 285] (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The … detention … of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity … and in a manner which takes into account the needs of persons of his or her age …; (d) Every child deprived of his or her liberty shall have the right … to challenge the legality of the deprivation of … liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. The majority further found that, if it was erroneous in determining the court had power to order the release of children from detention, it may still give directions about the nature and type of detention in which the children are held and may also decide issues relating to the medical and educational facilities available to them during their detention. The Minister appealed to the High Court. The matter came before Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; 206 ALR 130. The Minister was successful. In a unanimous judgment, the High

Court held that the Family Court does not have jurisdiction to order the Minister for Immigration to release children who are detained or make orders concerning the wellbeing of children in immigration detention: at [53]–[54], [74], [110], [177], [204], [207]. The High Court stated (at [1]): The question in this appeal is whether the Family Court of Australia has jurisdiction to order the Minister for Immigration and Multicultural and Indigenous Affairs to release children who are detained in an immigration detention centre in accordance with the Migration Act 1958 (Cth) (the Migration Act). In our opinion, the Family Court has no jurisdiction to make such an order. Nor has it any jurisdiction to make orders concerning the welfare of children who are held in immigration detention. With reference to the Family Court invoking provisions of international treaties to which Australia is a signatory, Kirby J said this: This court cannot invoke international law to override clear and valid provisions of Australian national law. Given that the Migration Act validly imposes a specific requirement for the detention of children so far as they are unlawful non-citizens, the general powers and jurisdiction of the Family Court under the Family Law Act cannot operate to require or permit the release of those children from such detention: at [171], [176]–[177], [179]. As a consequence of this judgment the applicant children with their parents were deported.

The Family Court traverses much safer jurisdictional grounds when using s 67ZC to decide matters concerning the health and wellbeing of children who undergo medical procedures. The many and complex issues of gender identity

disorder in an adolescent were canvassed and analysed in a judgment brought down by Nicholson CJ of the Family Court of Australia on 13 April 2004. The issue of Alex’s medical treatment was referred to the Family Court of Australia as a matter pertaining to the welfare of the child and orders were sought under s 67ZC of the FLA. [page 286]

Re Alex (Hormonal Treatment for Gender Identity Dysphoria) (2004) 31 Fam LR 503; [2004] FamCA 297 (Re Alex) was an application before Nicholson CJ in the Family Court by a state child welfare department on behalf of an adolescent seeking medical treatment for transsexualism. Alex, who was under a child welfare order issued by the relevant state, was a 13-yearold with female phenotype and genotype who had a long and consistent history of asserting that he was a male and taking all possible steps to project a male sexual identity both at home and at school. There was no evidence of any contradicting psychopathology, and there ensued a consensus diagnosis of gender identity disorder consistent with transsexualism. A suppression order under s 97(2) of the FLA ensured that neither the parties nor the witnesses could be identified so Alex’s privacy was protected. It was agreed by his Honour, the parties, legal representatives and witnesses that the male pronoun should be used to refer to Alex throughout the proceedings. It was in agreement with the wish of Alex that he be referred to as being of the male gender. Alex was revealed to be suffering concurrent severe frustration and depression accompanied by suicidal indications as a consequence of his inner conflict and his inability to resolve it thus far. Orders were

sought that would allow him to commence hormonal treatment as the first step toward affirming his sexual identity as a male. The application before the court did not contemplate any surgical procedures being performed before Alex would attain the age of 18 years. Although all the evidence before the court supported hormonal intervention as being in Alex’s best interests, there was some divergence of opinion as to its precise course and timing. The Chief Justice commenced his judgment by stating the basis of the court’s jurisdiction in the matter. He identified two important considerations going to the question that arose from the High Court’s decision in Marion’s case (1992) 15 Fam LR 392; FLC ¶92-293; 175 CLR 218: whether the child or young person is himself competent to consent and whether the subject matter of the application is a ‘special medical procedure’ to which a parent or guardian cannot consent (at [152]). The gravamen of the decision in Marion’s case, as extracted by his Honour (at [153]), was that: … if a child or young person cannot consent her/himself to a medical procedure, parental consent (which for present purposes may be equated with that of a guardian) is ineffective where the proposed intervention is: invasive, permanent and irreversible; and not for the purpose of curing a malfunction or disease. Considering whether the treatment proposed for Alex constituted a special medical procedure, his Honour reviewed several other decisions where the court had exercised its welfare jurisdiction in relation to procedures other than sterilisation and likewise found that jurisdiction extended beyond the single issue of sterilisation considered in Marion’s case. In particular, he referred to a passage in Re GWW and CMW (1997) FLC ¶92-748 where Hannon J, facing a challenge to the court’s jurisdiction, cited the High Court’s decision in Marion’s case where it found that court authorisation was required because of the significant

risk of making a wrong decision and the particularly grave consequences of such a decision (Re GWW and CMW at [176]). His Honour agreed with what he saw as Hannon J’s conclusion that the welfare jurisdiction was not limited to cases involving only surgical intervention (Re GWW and CMW at [178]). [page 287] His Honour, however, then distinguished the present case from Re GWW and CMW where an application for approval to harvest stem cells from the child for the benefit of another family member was refused on the basis that the procedure was not in the child’s best interests and where the proposed procedures in Re Alex were, in fact, in the best interests of Alex. See also Re Lucy (Gender Dysphoria) [2013] FamCA 518; Re Shane (Gender Dysphoria) [2013] FamCA 864; Re Sam and Terry (Gender Dysphoria) [2013] FamCA 563; Re Jodie [2013] FamCA 62.

The following matter also concerns a child with gender identity disorder. The judge hearing the matter used the same caution as Nicholson CJ in asserting that medical treatment should be authorised one step at a time.

Re Jamie [2011] FamCA 248 was a matter heard in the Family Court before Dessau J. The case involved a child, ‘Jamie’, aged 10 years at the time of the hearing, who was born male and had been diagnosed with gender identity disorder. An application was made to the court for approval for Jamie to undergo a twostage special medical procedure. Her Honour (as Jamie wished) used the female pronoun in reference to Jamie.

In an earlier judgment on 28 March 2011, Dessau J as a matter of urgency approved stage one of the special medical procedure but her Honour reserved her decision in relation to stage two. The applicant parents, supported by the medical practitioners, submitted that both stages of treatment should be viewed as the one treatment program and approved at the same time to avoid the expense and uncertainty of returning to court for stage two approval. The independent children’s lawyer, supported by the family report writer’s evidence, submitted that treatment not due for five to six years should be considered by the court closer to that time, to take into account prevailing or intervening circumstances not able to be predicted at the child’s present age. In considering the relevant legal principles, Dessau J noted that procedures referred to in the authorities as ‘special medical procedures’ are a matter beyond parental responsibility, as legislatively defined, and require determination by the court, as part of the court’s parens patriae or welfare jurisdiction. Dessau J noted that in this case there was no dispute that the procedures proposed fell within the definition of a special medical procedure. Dessau J, in dismissing the application, stated the argument advanced by Jamie’s parents and doctors that the stage two treatment will only be embarked upon if Jamie seeks it and her parents and doctors support it as in her best interests, failed to fully appreciate the court’s role in cases that involve special medical procedures. Dessau J noted that Jamie’s strong wishes were a factor that assisted her Honour to conclude that the stage one treatment was in Jamie’s best interests. Her Honour explained the issue was whether the court could comfortably determine this [page 288]

10-year-old child’s best interests, and therefore approve a particular procedure or treatment, irreversible in nature, not due for six years. Her Honour noted that while Jamie’s parents’ preference not to return to court is entirely understandable, there are all sorts of vagaries and potential factors that may intervene. Her Honour concluded that she could not determine when Jamie was aged 10 years what was likely to be in her best interests when she is aged 16.

So many matters concerning young people with gender dysphoria have come before the Family Court since Re Jamie that it is impossible to discuss all in detail. It is apparent, however, that the incidence of the condition appears to be increasing year by year. The matter following considers the finding in Re Jamie and, as one would expect, the application of the ‘Gillick’ test of competency.

In Re Matthew [2017] FamCA 74 before Rees J the question for decision by the court echoed that in many prior matters, that is, the competence of the child in question to give consent, of their own volition, to medical treatment for the condition of gender dysphoria. The courts have divided the available procedures between the two stages of treatment, both therapeutic permitting parents to consent to the first stage. Stage 1 of treatment involves administration of hormones such as gonadotropin-releasing hormone analogues, to prevent the onset of puberty in the child’s biological sex, and these hormones have been administered to quite young children. Stage 1 treatment is reversible, as puberty in the child’s biological sex will continue if the treatment is stopped.

In addition, it has been held that a child who is determined by a court to be Gillick competent can consent to stage 2 treatment, which is administered when the child is slightly older — around the age of 16 years. When a minor possesses a sufficient understanding of the nature and consequences of stage 2 treatment, they have legal capacity to consent to that aspect of treatment, but the finding of competency must be made by a court. Stage 2 treatment involves, for example, the administration of oestrogen or testosterone for the purpose of encouraging the development of physical characteristics in the sex with which the child psychologically identifies. The effects of stage 2 treatment are more serious than the first and are considered to be irreversible. Rees J was dealing with the question of administration of testosterone, being stage 2 treatment in the affirmation process to masculinity for Matthew. At the hearing all the parties involved agreed that Matthew, aged 15, had reached the level of competence required to give consent to the medical intervention demanded by his wish to bring his physical body into congruence with the masculinity of his mind. The role of the court is not to approve or disapprove of the planned procedure for Matthew. Rather the court makes the decision as to Matthew’s understanding of the planned treatment and his competence to give consent to it. [page 289] The question was answered in an affirmative declaration by Rees J, who ordered: That the child A, known as Matthew, who was born on … 2002, is competent to consent to the administration of testosterone for the purpose of treatment of Gender Dysphoria in Adolescents and Adults in the Diagnostic

and Statistical Manual of Mental Disorders (2013) (‘DSM5’). This declaration was founded on the statement by Matthew’s treating endocrinologist (at [22]): I am of the opinion that the gender dysphoria remains firmly entrenched and that [Matthew] has sufficient knowledge and understanding of the effects of phase 2 therapy to proceed with that. This declaration was followed by an order imposing extreme anonymity on any identifying features of Matthew, the proceedings before the court and any person whomsoever was connected to Matthew. The order applied also to any organisation — whether hospital, school, legal firm, etc — connected to the matter.

The matter following involves cultural sensitivity, a denial of human rights, is criminal in nature and, in the view of many all over the world, is a deplorable act.

In Department of Family and Community Services and Haura [2015] FamCA 72 before Cleary J, the Department of Family and Community Services sought the continuation of ex parte injunctions made ‘to restrain the conduct of the subject child’s parents (‘the respondents’) and promote the welfare of one of their children’ and under s 68B of the FLA, ‘an injunction for the personal protection of a child’ (at [1] and [2]). In seeking this order the Department alleged that the child was at risk of sexual abuse in the form of female genital mutilation. The order was a restriction on the movements of the parents, but the inconvenience to them was weighed against the harm to the child which would be caused by the genital mutilation.

Citing s 65C of the FLA, Cleary J (at [4]) defined the role of the Department as a: … person concerned with the care, welfare and development of a child. Specifically, the Department is concerned with the welfare of the child and an alleged risk of abuse, namely, the child being subjected to female genital mutilation as defined in s 45 and s 45A of the Crimes Act 1900 (NSW). In describing the provisions of the FLA most pertinent to the orders sought by the Department, Cleary J referred to s 64B(2)(i) which would provide power to the Department to deal with ‘any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child’ (at [2]). Her Honour then turned her mind to the source of the power needed to grant the orders sought by the Department to protect the child. She said (at [4]): Whilst not explicitly stated, the source of power within Part 7 of the Act [FLA] for the application is either, but probably both, s 67ZC [orders relating to the welfare of children] and s 68B(1) of the Act. [page 290] Section 68B(1) provides: If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child … The respondent parents of the subject child were born in Country G. The father came to Australia in 2003 and married the mother in Country G in 2012. In December 2013 the respondents started living in Australia.

On 4 November 2014, New South Wales Police advised the Department of the plans of the respondents to travel to country G, the purpose of the journey being surgery on their daughter. On 5 November the Department made an application to the Federal Circuit Court seeking interim and final orders to restrain the parents from removing the child from Australia. On 6 November the police with the aid of a search warrant went to the flat in which the parents lived and found tickets for travel on 8 November. Also on 6 November the matter came before the Federal Circuit Court and leave was given to for an initiating application to be filed that day and the matter to proceed without the presence of the respondents in court. On that day orders were made restraining the parents from removing the child from Australia and from having surgery performed on the child falling within the definition of female genital mutilation. The matter went before the courts several times, culminating in the hearing before Cleary J. On each occasion the parents protested that they never intended their daughter to undergo genital mutilation. Cleary J made the point that as yet the evidence of the intention of the parents was untested and would remain so until a final hearing of the matter and a testing of the evidence by cross-examination of all parties. In the meantime her Honour was mindful that the parents were disappointed that they could not visit their family in Country G and attend a family wedding there until a decision was brought down in a final hearing. Nevertheless, Cleary J said she must weigh up a suspension of the current order forbidding travel against what she called ‘the adverse impact on the child of such a crime being committed by the respondents, with consequences for the children of that happening’ and she was encouraged ‘to take a most conservative approach to this application’ (at [49]).

In Wiltcher and Wiltcher [2010] FamCA 369 O’Reilly J referred to the s 67ZC welfare power to allow a mother to apply for passports for her children. The father had not had contact with the children since the parties had separated in early January 2009. There were no parenting applications on foot. O’Reilly J held that the court’s jurisdiction in respect of an application for the issue of passports for children (in this case, for the purpose of a holiday in the US) is conferred by s 67ZC of the FLA (orders relating to welfare of children) in conjunction with s 61C(1) (as to parental responsibility), saying (at [4]): It seems to me that the arrangement by a parent for the issuing to a child of a passport to enable the child to participate in overseas travel is a quite ordinary incident of parental responsibility, and a matter concerning a child’s welfare. [page 291] Referring to s 67ZC(2) as requiring the court, when considering whether to make an order under s 67ZC, to regard the best interests of the child as the paramount consideration, O’Reilly J (at [4]) allowed the application, taking into account that the travel sought would not interfere with any of the children’s time with the father; the mother had booked the return journey; there was no evidence of her being unlikely to return; and the father did not oppose the application. In referring to the Hague Convention his Honour said (at [21]): I take into account that the United States, for the purpose of the presently planned holiday, is a Hague Convention country. However, as is plain, the issue of passports for the children would enable the mother, if

she so wished, to travel more extensively with the children.

The Hague Convention on the Civil Aspects of International Child Abduction 5.69 A child may not be taken overseas without the consent of both parents, or a court order. If a child has been taken overseas without the knowledge or consent of a parent, or kept there for longer than agreed, there are steps that can be taken to have the child returned to Australia. There are also steps that may be taken to prevent an abduction of a child. If a court having jurisdiction under Pt VII of the FLA considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate. Section 67ZD of the FLA provides for orders to be made compelling a parent to deliver the passport of a child at risk to the court. Note the use of the word ‘custody’ in this particular discussion. It is not unusual to find it widely used in international documents. If overseas abduction is seen as a risk, the child should be put on the watch list kept by the Australian Federal Police. Any child on the list will be stopped as they pass through customs before boarding a plane or ship. The Federal Police require either a parenting order or an application for a parenting order before they will put a child on the watch list. The Australian Passport Agency has a list of children to

whom it will not issue a passport. If they do not have a passport already, any child at risk should be placed on this list as well as the watch list. If the child is eligible for a passport from another country, the consulate or embassy of that country should be contacted to determine what procedures they have to prevent the overseas abduction of children. If a child is taken outside Australia and retained there by one parent the other (the parent left behind) may have recourse through the courts and government departments, both Commonwealth and state. 5.70 The Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) (Hague Convention) seeks to combat parental child abduction by providing a system of cooperation between Central Authorities and a rapid [page 292] procedure for the return of the child to the country of the child’s habitual residence. The preamble to the Convention recites the conviction of the states parties ‘that the interests of children are of paramount importance in matters relating to their custody’ and their desire (i) ‘to protect children internationally from the harmful effects of their wrongful removal or retention’ and (ii) ‘to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access’. The objects of the Convention, as stated in Article 1, are: (a) to secure the prompt return of children wrongfully

removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.

Australia is a party to the Hague Convention, as are many other nations (as of January 2017, 97 states are party to the Hague Convention). The Convention entered into force for Australia on 1 January 1987, thus Australia is a Contracting State. The Convention applies to any child habitually resident in a Contracting State immediately before any breach of custody or access rights and ceases to apply when the child attains the age of 16 years (Article 4). The purpose of the Hague Convention is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained are returned promptly to their country of habitual residence unless exceptional circumstances apply. The Hague Convention, although enacted some years before the United Nation Convention on the Rights of the Child (UN Convention), and the UN Convention have much in common. This is evident in the emphasis in each treaty that the rights of children be protected by the state. The UN Convention, however, reflects a myriad of rights attaching to childhood while the Hague Convention is entirely based on the return of an abducted child to the place of habitual residency. Each one, however, asserts the principle that it is in the best interests of a child to have a relationship with both parents. The language used in the Convention in relation to ‘custody’ and access’ is no longer used in the FLA. Instead the language under the FLA refers to ‘with whom a child will live, spend time and communicate’. The principal object of the Hague Convention, aside from protecting rights of access,

is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the state of their habitual residence (Article 1). The Hague Convention is based on a presumption that, save in exceptional circumstances, the wrongful removal or retention of a child across international boundaries is not in the best interests of the child, and that the return of the child to the state of habitual residence will promote his or her interests by vindicating the right of the child to have contact with both parents, by supporting continuity in the child’s life, and by ensuring that any determination of the issue of custody or access is made by the most appropriate court having regard to the likely availability of relevant evidence. The principle of prompt return also serves as a deterrent to abductions and wrongful removals; the return order is designed to restore the status quo that existed before the wrongful [page 293] removal or protection, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction. A return order is not a declaration as with whom a child will live, etc. It is simply an order that the child be returned to the jurisdiction which is most appropriate to determine custody and access. It is clearly stated in Article 19 that a return decision is not a decision on the merits of any custody issue. It is this which justifies the requirement in Article 12

that the return order be made ‘forthwith’, and in Article 16 that a court dealing with an abduction case is not permitted to decide on ‘the merits of rights of custody’ until it has been decided that there exists a reason for not ordering the return, or the application is not lodged within a reasonable time. The requirements to be met by an applicant for a return order are strict. He/she must establish: that the child was habitually residing in the other state; that the removal or retention of the child constituted a breach of custody rights attributed by the law of that state; and that the applicant was actually exercising those rights at the time of the wrongful removal or retention. Once the applicant has established a prima facie case under Article 3(b), there remains the possibility of the application being rejected under Article 13 if consent or subsequent acquiescence to the removal can be shown, or there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Also under Article 13 the objections of the child, if he/she has attained sufficient age and maturity, may be a basis for refusal. Article 12 gives a discretion not to return a child if the application was made a year after the removal or retention and the child is now settled in his/her new environment. Finally, under Article 20 return may be refused if this would not be permitted by the fundamental rules of the requested state relating to the protection of human rights and fundamental freedoms. When Articles 13 and 20 were drafted, the negotiating countries expressed the view that the exceptions must be drawn and construed narrowly so that the purpose of the Convention was not compromised.

The Hague Convention sets up a Central Authority in countries party to the Convention. The Central Authority has a number of functions to facilitate the return of children to and from other countries. In Australia, the Central Authority is the Australian Government Attorney-General’s Department. There are also Central Authorities in each state and territory. The Central Authority in each country provides assistance in locating the child and in achieving, if possible, a voluntary return of the child or an amicable resolution of the issues. Central Authorities also cooperate to prevent further harm to the child by initiating or helping to initiate proceedings for the return of the child, and by making necessary administrative arrangements to secure the child’s safe return. Article 21 also gives the Central Authorities obligations to promote the peaceful enjoyment of access rights and to take steps to remove, as far as possible, obstacles to the exercise of such rights. There is one very unsettling aspect to the Hague Convention. That is, mothers, in particular, who flee to a safe haven are viewed as perpetrators of abduction under national and international laws. The decision for the return of the child too often pushes the mother to choose to leave a country of refuge with her child. In [page 294] many cases this will be to her extreme detriment. Such forced return may put her and her child back in a violent situation with little or no support, either socially or within the justice system in their place of habitual residence. There is an

enormous amount of evidence, both sociological and legislative, to suggest that violence against the mother will expose a child to the possibility of psychological or physical harm. (This will be discussed further in Chapter 10.) Civil courts, including the Family Court, appear to have a marked reluctance to deal in a forthright manner with violence against women (less often men), and the Hague Convention does little to assuage the situation. Australia appears to be a country to which many people flee for sanctuary. Perhaps it is a result of the multicultural nature of our society, inter-cultural rural marriage, or simply that Australia may seem far away to someone sufficiently desperate to leave behind an intolerable situation. Whatever the reason, we have a great number of cases dealing with the Hague Convention. 5.71 Space does not allow a discussion of more than a few cases brought under the provisions of the Hague Convention, with a concentration on those heard on appeal before the High Court of Australia. It should be noted that by the time these matters are brought to the High Court, both the Family Court at first instance and the Full Court of the Family Court have made a decision on the narrow provisions of the Hague Convention articles and the regulations of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). In relation to those decisions, either the abducting parent or the ‘left-behind’ parent is sufficiently unhappy to seek further adjudication. In keeping with the language of the Hague Convention, the words ‘custody’ and ‘habitual residence’ are used with occasional exceptions.

In the matter of Commonwealth Central Authority and Cavanaugh [2015] FamCAFC 233 the Commonwealth Central Authority (the Secretary of the Attorney-General’s Department) appealed an order dismissing the Central Authority’s application for three children to be returned to Finland under reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The judgment being appealed was that of Faulks DCJ in Commonwealth Central Authority and Cavanaugh [2015] FamCA 1005 in which the father brought proceedings under Article 3 of the Hague Convention. The facts are set out with clarity in the judgment of May, Strickland and Aldridge JJ in the Full Court of the Family Court (at [6]–[20]): The mother is a citizen of both Australia and Finland. The father is an Australian citizen. They were married in Finland in 1996. In September 1996 they moved to the United Kingdom. Their first child was born there in 2002. Shortly after the birth of that child the mother and father spent four months living in Finland. From November 2002 until June 2014 the parents lived in Australia. The second child was born in 2004 and the third in 2008. The parents decided that they would live, for at least a year, in Finland. On 16 June 2014 the mother, father and the children travelled to Finland on one way tickets. The parents retained their house in Australia and rented it out. At least some of their furniture was kept in the garage. The father retained his employment in Australia, [page 295] taking leave for a year. The children’s enrolment at their schools was maintained but deferred for a year.

Once in Finland the parents acquired a residence. The children, who were already fluent in Finnish, attended school. According to the trial judge they were happy at school and progressing satisfactorily. The mother acquired employment in Finland. The children were engaged in extra-curricular activities and had made friends. The father undertook courses to advance his ability in the Finnish language and took some steps to find employment. All members of the family became members of the Finnish National Health Insurance Scheme. The father, who had suffered some injuries before leaving Australia, had two operations performed under that scheme. The parents received child benefits for each of the children from the Finnish Government. The middle child also received a disability allowance. One of the significant issues between the mother and father was their intention in leaving Australia. Of the father’s intention, the trial judge found: … I accept and find that his intention was that he would go to Finland for a year and at the end of that time make a further decision about whether he and the family would remain in Finland or return to Australia [at [17] in the judgment of Faulks DCJ].

As to the mother, the trial judge found: When the family moved to Finland the mother’s evidence was that they were going to Finland for at least one year. I accept and find that it was her desire to live in Finland permanently with the family … (Original emphasis) [at [19] in the judgment of Faulks DCJ].

On 13 March 2015 (that is some nine months after arriving in Finland) the family flew from Helsinki to Australia to attend the wedding of the father’s brother in late March 2015. The family held return tickets for 31 March 2015.

On 29 March 2015 the mother and father separated. The children remained with the mother. The father had possession of the children’s passports and retained them so that the mother and the children were unable to return to Finland on 31 March 2015. On that day the father filed an application in the Federal Circuit Court at Parramatta seeking orders to have the children placed on the Airport Watch List. On 8 April 2015 the father sought a recovery order and the proceedings were transferred to the Family Court of Australia on 12 May 2015. On 3 April 2015 the mother commenced proceedings in the Helsinki District Court for divorce, interim sole custody and the immediate return of the children to Finland. Finland requested the return of the children and on 12 May 2015 the Commonwealth Central Authority commenced the proceedings the subject of the appeal. The trial judge had to determine whether children should be returned to Finland under international child abduction laws. The key question was whether or not the children were habitually resident in Finland. If the children were deemed consistent residents of Finland, then they would need to be returned to Finland, otherwise they could remain in Australia. The trial judge concluded that the children were not habitually resident in Finland and thus were permitted to stay in Australia. On appeal, however, the court overturned the trial judge’s decision and found that the children were consistent residents in Finland and should be returned to Finland in accordance with the relevant child abduction laws. [page 296]

In a judgment allowing the appeal of the Commonwealth Central Authority the Full Court found: There is force in the submission of the Commonwealth Central Authority that the trial judge gave at least excessive weight to the parents’ lack of settled common intention to stay in Finland beyond one year and insufficient weight given to the common intention of the parents to live in Finland for at least a year [at [46]]. The parents had established a home. The mother had a job. The mother had friends and relatives living nearby. The family was enrolled in the local health scheme and received treatment under it [at [54]]. A finding that the children were habitually resident in Finland at the time of the retention could be drawn from these facts. That finding could be drawn more readily when the loss of habitual residence in Australia is taken into account. It was therefore a relevant consideration which the trial judge did not take into account [at [55]]. Weighing up all these matters we conclude that at some time after the family arrived in Finland, the children became habitually resident there and remained so until the time of their retention in Australia. It follows therefore that the children were improperly retained in Australia and should be returned to Finland in accordance with the Regulations [at [60].

In the matter following the Family Court made an interim order that a child abducted by the mother from China be returned there to live with the father and paternal grandparents. China is not a signatory to the Hague Convention.

Hsing and Song [2016] FamCA 986 before Forrest J concerned a matter of international child abduction in which the father applied for the immediate return of a four-year-old child to the People’s Republic of China. Both parents were Chinese citizens but met as students (and married) in Brisbane. The child was born in Australia and lived here for his first 10 months with the mother and maternal grandmother while the father returned to China for treatment for a serious illness that left him paraplegic, requiring the use of a wheelchair for mobility. The mother took the child to China in 2013 for the child to live with the father and his parents while the mother returned to Australia to run and sell their business there. A consulate document was in evidence where the mother had agreed to the child living in China until February 2018. The mother travelled there to see the child for birthdays and celebrations. She returned to China in April 2016, taking the child, with the agreement of the father, to visit her family there, but in August 2016 she absconded with the child to Australia. Forrest J referred to the father’s evidence that the child attended childcare from July 2014 to June 2015 in China. The child then attended kindergarten from June 2015 to June 2016 for five days a week at a school in their neighbourhood. From the age of 10 months to four years the child was mostly cared for by the father with help from the paternal grandparents. [page 297] Forrest J said at that as China is not a signatory to the Hague Convention the case would be heard not under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) but the jurisdiction of the court under s 69E of the FLA, the child being an Australian citizen (and present in Australia) when the

application was filed. Forrest J added (at [43]) that ‘the Court must, nevertheless, still regard the best interests of the child as the paramount consideration’, citing ZP v PS [1994] HCA 29 and other authorities which ‘countenance an order … for the immediate return of a child to another country from which the child has been taken, upon a summary hearing, if the Court, having regard to the best interests of the child … determines that should happen’ (at [43]). Forrest J so determined after considering the matters set out in s 60CC and made the following orders: 1. That the mother, Ms Song, and the father, Mr Hsing, shall have equal shared parental responsibility for making decisions on all ‘major long term issues’ as that term is defined in s 4 of the Family Law Act in relation to the child, B born … 2012, … save for and excluding the decision for the child to be returned to China as soon as practicable. 2. That the child shall live with the father and spend time with the mother as agreed between the parties in writing. 3. That the child be returned to China and to give effect to such order: (i) The mother shall deliver the child into the care of the child’s paternal grandparents, as soon as they can be in Brisbane and attend at the home of the mother’s friend, Ms C, at D Street, Suburb E to collect him from her as soon as they can be here, even if that is within the next seven days; (ii) The mother shall hand the child’s Australian passport to the paternal grandparents at the time she delivers the child to the paternal grandparents pursuant to 3(i) hereof; (iii) When the paternal grandparents, Mr F born … 1961 (paternal grandfather) and Ms F born … 1957 (paternal

grandmother), attend at the Brisbane International Airport with tickets to board a return flight to the People’s Republic of China with the child, B born … 2012 (male), in their care, with the intention of taking him on the flight with them to China, that child’s name shall be immediately removed from the Family Law Watchlist maintained at all points of departure in Australia by the Australian Federal Police and the said paternal grandparents shall be permitted to board the international flight to China with the said child in their company. In addition Forrest J made orders for time in which the mother and child could spend together in Australia or China and communication by ‘video chat’ (Orders 4–5). This case is a very clear discussion by Forrest J of the applicable law and makes excellent reading in its entirety.

Secretary, Department of Family and Community Services and Padwa [2016] FamCAFC 57 heard before Bryant CJ, Murphy and Kent JJ required the Full Court to consider the correct test for determining a child’s ‘habitual residence’ as that term is found in the Hague Convention and the Family Law (Child Abduction) Regulations 1986 (Cth) (the Regulations). The orders appealed provided for the child the subject of the proceedings to return to Indonesia (which is not a signatory to the Convention) [page 298] where her mother lived, rather than to the Netherlands where her father lived. The appeal was brought by the Secretary for the Department of Family and Community Services, acting as the

Central Authority, at the request of the father. The appeal was opposed by the mother. The child in this case was born in 2009 in the Netherlands. Her father is a citizen and resident of the Netherlands and her mother is a citizen and resident of Indonesia. The mother and father had married in 2007 and resided in the Netherlands. After the child was born she lived in both Indonesia and the Netherlands. The parties separated in July 2012 and in May 2013 they entered into a parenting plan agreement in the Netherlands. Between July 2010 and November 2013 the child lived for approximately 24 months in Indonesia with the mother and approximately 15 months in the Netherlands with both parents. The child began attending pre-school in Indonesia. From November 2013 until 17 October 2015 the child lived with the father in the Netherlands, where it was agreed between the parents that she would attend her first year of primary schooling. On 17 October 2015 the child travelled to Indonesia to spend time with the mother. The child was due to return to the Netherlands on 25 October 2015. On that date the mother informed the father she would not return the child. On 19 December 2015 the mother travelled with the child to Australia for a holiday. It was at that point that the father took action, Australia being a signatory to the Convention, and on 24 December 2015 the Central Authority filed an application pursuant to the Regulations seeking the return of the child to the Netherlands. The primary judge found that the child was not habitually resident in the Netherlands and ordered her to return to Indonesia. In its reasons for judgment the Full Court determined that the primary judge applied the incorrect test for habitual residence and therefore his ultimate finding that the child be returned to Indonesia was erroneous. The Full Court identified the sole issue for determination on appeal, and the correct test to be applied at first instance, was the question of whether the child was habitually resident in the Netherlands immediately prior to her retention in Australia on 19 December 2015.

In reaching this conclusion the Full Court considered the two questions the primary judge posed for himself in determining the habitual residence of the child. After tracing through the history of the movement of the child, the primary judge posed the question as being, ‘what would the habitual residence of the child have been in November 2013?’. The primary judge appeared to then make a finding that the answer to that question would be Indonesia. The trial judge then posed the question he had to answer as being, ‘[w]hat then has changed since November 2013 which might impact upon the determination of where the child is a habitual resident?’. The Full Court’s reasons make it clear that the question, as required by the Regulations, was not where the child was habitually resident in 2013, some two years prior to her retention, but where the child was habitually resident immediately prior to her retention in Australia in December 2015. After a careful analysis of the authorities the Full Court also emphasised that this question is to be considered ‘from the child’s perspective’. The Full Court held the only answer to that question available on the evidence was that the child was habitually resident in the Netherlands. The Full Court also considered a finding by the trial judge, apparently made as an alternative to the finding of habitual residence in Indonesia, that the child had two [page 299] habitual residences, being Indonesia and the Netherlands. Noting that no ground of appeal was directed to challenging whether, as a matter of law, a finding of two habitual residences can be made, the Full Court said it was bound by existing Family Court authority that it is not possible to find that a child can simultaneously have more than one habitual residence.

However, the Full Court (at [62]) then suggested that the High Court in LK v Director-General, Department of Community Services (2009) 232 CLR 582; [2009] HCA 9 at [25] left open that possibility when it said: … it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. In this case, though, the Full Court ultimately concluded that even if the child could be habitually resident in the two countries, in circumstances where Indonesia is not a Convention country and the Netherlands is, and where proceedings were properly invoked pursuant to the Convention by the father who had rights of custody in the Netherlands, the child must be returned to the Netherlands. The Full Court therefore allowed the appeal and made orders providing for the child to return to the Netherlands.

The matter following is unusual in that there is a ‘best interest’ rather than an ‘habitual residence’ test applied. In addition the child is being returned to a non-Hague Convention country — Ghana.

In Acquaah-Akuffo and Abioye [2016] FamCAFC 194, the Full Court of the Family Court considered an interim order made for the return of a child from Australia to a non-Hague Convention country, Ghana. The child was born in Australia in 2006 and was taken to live in Ghana by his mother in 2007. In 2011, parenting orders were made in Ghana giving the child’s mother sole parental responsibility and allowing the father, who lives in Australia, to visit him. In 2013, the father removed the child from Ghana

without the mother’s consent. He subsequently returned the child after the mother sought assistance from the authorities. This was followed by further proceedings relating to the child in Ghana. With the child’s mother’s consent, in August 2015, the father brought the child to Australia for a holiday. He then refused to return him to Ghana. The mother issued proceedings in the High Court of Ghana, which made an order requiring the child to be returned. The father issued proceedings in the Federal Circuit Court of Australia, seeking the child live with him in Australia. The mother sought orders in the Australian proceedings for the child to be returned to her care in Ghana. In June 2016, the trial judge made interim orders requiring the father to return the child to live with the mother in Ghana and for her to have sole parental responsibility for the child, concluding: The mother has been the parent with whom he has lived since a baby and the criticism made of her by the father is of limited significance. At present, separation from the mother is of greater significance than a potential separation from the father [[2016] FamCA 507 at [51]].

[page 300]

The case of De L v Director-General, NSW Department of Community Services (1996) 20 Fam LR 390; FLC ¶92-706 was heard before Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The children were 10 and nine years old at the date of the alleged wrongful removal. The parents were married and both enjoyed rights of custody. On 17 February 1995 the mother took the children to Australia. The family had

lived primarily in the United States until the mother and children travelled to Australia, with the consent of the father, in December 1991. They remained eight months, returning on 22 July 1992. On 4 July 1994 the mother again took the children to Australia for six months, returning on 5 January 1995. On 17 February 1995 she took the children back to Australia without the consent of the father. On 21 February 1995 the Circuit Court of Stafford County, Virginia, awarded the father temporary custody of the children. On 13 December 1995 the Family Court of Australia refused to order the return of the children. On 29 February 1996 the Full Court of the Family Court of Australia ordered the return of the children. The mother appealed. The main question before the court was the amount of emphasis to place on the assertion by the children that they wished to remain in Australia. This involved a discussion of Article 13 of the Hague Convention — objections of the child to a return. In addition, the court examined whether the need for expediency in making a decision would be impeded by the fact that separate legal representation had been appointed on behalf of the children. The court found (at 400): [T]he policy of the Convention is not compromised by hearing what children have to say and by taking a literal view of the term ‘objection’. That is because it remains for the court to make the critical further assessments as to the child’s age, maturity and whether in the circumstances of the case the discretion to refuse return should be exercised. The court stated further (at 403): The presence of separate representation should not hinder, and indeed should assist, the prompt disposition of Convention applications. The mother’s appeal was allowed with the High Court sending

the case to the Family Court of Australia for a determination to be made as to the children’s objections. The right of a child to be heard in judicial proceedings is bolstered by the UN Convention. Article 12 of the International Convention on the Rights of the Child states: 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.

5.72 Nevertheless, Article 13 of the Hague Convention, as implemented into Australian law by reg 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), now provides not only that the child must object to a [page 301] return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

DP v Commonwealth Central Authority and JLM v DirectorGeneral, NSW Department of Community Services [2001] HCA 39; (2001) 180 ALR 402 were heard at the same time before Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ. DP v Commonwealth Central Authority concerned a child who was born in Greece in 1994. The parties lived in the village of Nigrita, Greece. The child was an Australian citizen, the mother was a Greek-born Australian citizen, and the father was a citizen of Greece. In 1998 the mother, the child and the mother’s parents left Greece and came to Darwin, Australia. In Greece, the mother had tried to seek medical treatment for the child in the village of Nigrita, and the nearby towns of Serres and Salonika. However, no specialist had been able to diagnose what was wrong with the child nor were they able to propose any appropriate treatment. Upon his arrival in Australia, the child was diagnosed as suffering from autistic spectrum disorder. Following diagnosis and treatment in Darwin, the child’s behaviour improved. The mother was concerned that if the child were forced to return to Greece, he would revert to his previous dysfunctional behaviour in the absence of treatment available near where they lived in Greece. She therefore argued that there was a grave risk that returning the child to Greece would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The primary judge ordered that the child be returned to Greece as there were treatment facilities available in the country. On appeal the Full Court of the Family Court of Australia upheld this decision. The mother appealed to the High Court. JLM v Director-General, NSW Department of Community Services concerned a child born in Mexico in 1997 to an Australian mother and a Mexican father. The husband and wife lived in Mexico until 1998. In December 1998 the father, mother and the child came to Australia. In January 1999 the father returned to Mexico but the mother and the child stayed in

Australia, the mother later telling the father that she did not intend to return with the child to Mexico. The mother suffered from a major depressive disorder, and the psychiatric evidence before the court was that the wife had no will to live if she had to hand over the child to the husband. The primary judge found that the high risk that the mother would commit suicide if the child were returned to Mexico amounted to a grave risk of psychological harm to the child, and accordingly the child was not ordered to return to Mexico. On appeal, the Full Court held that the grave risk only arose if the child were returned to the father rather than returned to Mexico, and that this eventuality was dependent on the intermediate step of proceedings before a Mexican court. The Full Court declined to assume that once the child had been returned, the Mexican courts would not be able to make suitable arrangements for the child’s welfare. The High Court allowed the appeal in both cases. The cases were sent to the Full Court of the Family Court for further consideration consistent with the reasons for judgment of the High Court. In handing down a judgment the High Court considered the meaning of ‘grave’ and ‘intolerable’ and stated (at [130]): … using restrictive wording such as ‘grave’ and ‘intolerable’, [is] to be narrowly construed by courts when applying their terms to the facts of a particular case. [page 302] The High Court said (at [45]): It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may

well be magnified, by having to return to the country of habitual residence. Reg 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return. While it may be right to say that the return is to a country, not a place or a person, the application of Article 13(b) and reg 16(3)(b) requires consideration of what the consequences of that return will be. That is essentially a question of fact that will be decided on the evidence that is adduced in the proceedings. In DP, there was no evidence that there were appropriate treatment facilities for the child in the area of Greece to which he would be returned. In JLM there was no evidence that the mother would be able to successfully contest a custody case in Mexico, therefore there was a high risk that if the child was returned, she would commit suicide, and therefore cause grave harm to the child. When discussing a mandated return to a habitual residence on the basis of undertakings by the ‘left behind’ parent, the majority stated (at [40]): There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.

Despite the willingness of the court to read broadly ‘grave risk’, Kirby J made it plain that adherence by courts to the Hague Convention was essential for the application of international justice. His Honour stated (at [155]): Unless Australian courts, including this Court, uphold the spirit and the letter of the Convention as it is rendered part of Australian law by the Regulations, a large international enterprise of great importance for the welfare of children generally will be frustrated in the case of this country. Because Australia, more than most other countries, is a land with many immigrants, derived from virtually every country on earth, well served by international air transport, it is a major user of the Convention scheme. Many mothers, fathers and children are dependent upon the effective implementation of the Convention for protection when children are the victims of international child abduction and retention. To the extent that Australian courts, including this Court, do not fulfil the expectations expressed in the rigorous language of the Convention and the Regulations, but effectively reserve custody (and residence) decisions to themselves, we should not be surprised if other countries, noting what we do, decline to extend to our courts the kind of reciprocity and mutual respect which the Convention scheme puts in place. And that, most definitely, would not, in aggregate, be in the best interests of children generally and of Australian children in particular.

[page 303]

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 5.73 The convention above is usually referred to as the Convention for the Protection of Children. It was signed at The Hague on 19 October 1996, and is implemented in Australia by Div 4 of Pt XIIIAA of the FLA. In the matter following the mother sought to locate to Germany and was allowed to do so providing certain conditions were met.

In Cape and Cape [2013] FamCAFC 114 the mother had been permitted to return to Germany with the parties’ only child. The father then sought a stay of the relocation order pending the Full Court determining his appeal, which was dismissed. In refusing to grant the stay, Crisford J placed ‘considerable reliance’ upon a psychologist’s report that therapy between the father and child would be ‘harmful’ and that the ‘safest’ option was returning the child to Germany. Crisford J also directed the mother to register an undertaking in the Family Court of Australia and the equivalent court in Germany, providing that the child would be returned should the father’s appeal of the relocation order be successful. When considering the order as to the mother’s registering an undertaking in Germany, the Full Court (Finn, Thackray and Aldridge JJ) said (at [4]): This appeal … raises for consideration by the Full Court for the first time … the operation of the instrument which

Crisford J referred to in her order as ‘the 1996 Hague Protection Convention’. The full title of that Convention is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. It was signed at The Hague on 19 October 1996, and is implemented in Australia by Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth) … The Full Court went on to quote the Convention, including (at [66]): Article 23 (1) The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States. … Article 24 Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State. … [page 304] Article 26 (1) If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an

interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State. … Article 28 Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child. Applying those provisions, the Full Court said (at [73]–[77]): There 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. However, that is not a reason for not permitting it to be relied upon in the present case subject to safeguards. We have earlier concluded that it would be in the best interests of the child who is the subject of this case, to be able to go to Germany with his mother as soon as possible. It therefore seems a particularly suitable case in which to rely on the Child Protection Convention, but subject to safeguards. … We consider also that the mother ought to have the option of seeking ‘advance recognition’ of our orders

and of Crisford J’s of 11 April 2013 pursuant to Article 24 of the Child Protection Convention rather than registration … since it may be arguable that ‘registration’ under Article 26 is an option that becomes available only when the protective measure ‘require[s] enforcement’, which it would not until there is a breach of the Australian orders. It will be seen that Article 26 also provides for declarations of enforceability apparently as an alternative to registration. Out of an abundance of caution we will also provide for that option to be available to the mother. Accordingly, we propose to discharge Crisford J’s orders of 5 July 2013 and … replace those orders with orders to the effect that: The mother will return the child to Australia in the event that the appeal by the father against the orders of 11 April 2013 is successful and an order is made for the return of the child, either by the Full Court or by a court to which the parenting and relocation proceedings may be remitted for re-hearing. Upon the mother serving on the father and the Independent Children’s Lawyer documentary proof that she has obtained from a German court advance recognition or a declaration of enforceability in Germany of the orders of 11 April 2013 and of these orders, or registration in a German court of the orders of 11 April 2013 and of these orders, and also filing in the Family Court of Western Australia such documentary proof, together with proof of service of such documentary proof on the other parties, she will be entitled to remove the child from Australia at the expiration of 7 days from the date of such filing in the Family Court of Western Australia. The father’s application for a stay would then be

otherwise dismissed.

[page 305]

Problem question Adam and Bianca were married in 1990. There are four children of the marriage: Catherine, 12, David, 10, Edwina, eight, and Francis, six. In October 2010, Bianca left the family home because of what she saw as Adam’s ‘worldly’ lifestyle and his loss of faith in the teachings of the ‘American Church of the Devoted Family’, which both Adam and she had attended for many years. Adam, who is part Koori, has recently shown a wish to renew his bonds with his Aboriginal heritage. Bianca has shown scant interest in Adam’s Aboriginal background, and has never encouraged the children to seek out or spend time with their Koori relatives. Bianca thinks that if the children need to know about Aboriginal culture, they can learn this from books. When Bianca left, Adam was overseas and had no idea that she was so unhappy, although he had noticed that she did not want to spend time with him any more. He attributed this to her growing reliance on the church and her almost fanatical adherence to its doctrine. Adam feels that Bianca has lost any real joy in life, and is trying to make the children grow up long before they are ready. The church demands that the children spend many hours each week studying its unique and fundamental teachings. Bianca and the children live in a house provided by the American Church of the Devoted Family. When Adam and Bianca had a financial settlement, she handed to the church the proceeds of that settlement. Adam returned to live in the family home. While all four children live with their mother, during the period of

separation Adam has had them on alternate weekends and for half of each school holiday. Bianca has become increasingly unhappy with this arrangement because she claims that Adam constantly breaks the commandments of the church by taking the children to fast food outlets and allowing them to watch television. Adam also has a dog and a cat, both of which are forbidden by the church, because the teaching of the church forbids what it calls ‘dilution of filial love by affection for animals’. Bianca claims that the children are distressed before and after visits because of the church’s disapproval of their father. Bianca, however, has never denied Adam liberal time with the children, despite there being no court orders made in this regard. Adam thinks that the children would benefit from spending much more time with him and substantially less attending the church. He claims that the greatest distress in the lives of the children is caused by pressure from their mother and the harsh teachings of the church. Adam also says that the children, particularly the older three, have pleaded with him: ‘Stop Mummy taking us to the church, Daddy.’ Adam is anxious to get the question of with whom the children are to live, and with whom they spend time, on some legal footing and seeks your advice. He has no wish to deprive Bianca of a relationship with the children, but he is worried about the overall situation and the part the church is playing in the lives of his children. In addition, Adam would like the children to spend time with his extended family of Koori descent, with whom the children — through his encouragement — are establishing close bonds. The children have made it plain to Adam that they consider the time spent with him and their extended family to be enjoyable and worthwhile. Adam now wishes to obtain orders from the Family Court. Bianca is furious with this and says that the only orders obeyed by her must come from the American Church of the Devoted Family. She

insists that the Family Court can have no authority over her or her children.

[page 306]

Suggested answer 1.

Duties of advisers

Adam must be advised on the basis of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and the findings of the Full Court of the Family Court in Goode and Goode (2006) 36 Fam LR 422; 206 FLR 212; [2006] FamCA 1346. Together, this legislation and its interpretation by the Family Court in Goode provide an increased focus on the rights of children to have a meaningful relationship with both parents and be protected from harm. The law also encourages parents to share responsibility equally for their children after separation. Most noteworthy, the law derived from the above sources sets forth a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. Section 63DA(2) sets out the obligations that advisers must meet when advising a client about the making of a parenting plan. Paragraph 63DA(2)(a) places an obligation on advisers to inform clients that, where it is in the best interests of the child and reasonably practicable, they should consider an arrangement where they equally share the time spent with the child. Paragraph 63DA(2)(b) places an obligation on advisers to inform clients that if an equal time arrangement is not appropriate, they should consider an arrangement where the child spends

substantial and significant time with each person if in the best interests of the child, and reasonably practicable: s 63DA(2)(c). Bearing in mind the assertion by Bianca that she will only obey the orders of her church, she is unlikely to enter willingly into a parenting plan. The most likely outcome is that a parenting order will be decided by the Family Court. Adam should, however, be advised that the Family Court, before accepting an application for a parenting order, will require evidence that he and Bianca have made a genuine effort to resolve their differences by attending a family dispute resolution practitioner for help. This evidence must be provided by way of a certificate issued under s 60I(1) by a dispute resolution practitioner. 2.

Jurisdiction of the Family Court

Section 65D of the FLA empowers the Family Court to make such parenting orders as it considers proper. Pursuant to s 65C, Adam may make an application for a parenting order. Applications for parenting orders pursuant to Pt VII of the FLA are determined according to the paramount consideration of the best interests of the children: s 60CA. The prevailing message from the Full Court in B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755 was that the ‘essential inquiry’ in all other matters under Pt VII is the best interests of the child. In exercising its discretion, the court must consider the relevant guiding factors in s 60CC in light of the principles in s 60B and the particular circumstances of the case: Goode, above; Re B and B at 84,220, affirmed Marriage of R (1998) 23 Fam LR 456; FLC ¶92-820 per Finn, Kay and Burton JJ. 3.

Determining a parenting order

Unless the court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that Adam and Bianca have equal shared parental

[page 307] responsibility of Catherine, David, Edwina and Francis until they turn 18. ‘Parental responsibility’ means all the duties, powers and authority which by law parents have in relation to children and parental responsibility are not displaced except by order of the court or the provisions of a parenting plan made between the parties. It would appear that parental responsibility is essentially a responsibility to make all such decisions as are necessary to ensure that a child’s needs are met and includes decisions about matters such as with whom the child is to live, medical treatment, education, religious upbringing, social conduct and interaction and protection of the child from harm. This is not by any means a full list of matters which define parental responsibility. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and (2)) where the court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child: s 61DA(4). There is no indication on the facts that either Bianca or Adam have engaged in any type of abuse. The question does arise, however, as to whether the onerous rules in relation to frequent attendance at church and studies of church doctrine, placed on the children by Bianca, is a form of abuse. The same may be said of the rules forbidding the watching of television and interaction with pets. Although the rules are unusual, it is unlikely that this will be sufficient to rebut the presumption of equal shared parental responsibility. It should be noted that where it is appropriate to apply the

presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the court considers it would not be appropriate in the circumstances to apply it: s 61DA(1) and (3). 4.

Application of the presumption

When the presumption is applied, the first thing the court must do is to consider making an order, if it is consistent with the best interests of the child and reasonably practicable for the children to spend equal time with Bianca and Adam. If equal time is not in the best interests of the child or reasonably practicable, the court must go on to consider making an order using the same criteria for Catherine, David, Edwina and Francis to spend substantial and significant time with each of their parents: s 65DAA(1) and (2). The Act provides guidance as to the meaning of ‘substantial and significant time’ (s 65DAA(3) and (4)) and as to the meaning of ‘reasonable practicability’: s 65DAA(5). The concept of ‘substantial and significant’ time is defined in s 65DAA(3) to mean: (a) the time the child spends with the parent includes both: (i)

days that fall on weekends and holidays; and

(ii)

days that do not fall on weekends and holidays; and

(b) the time the child spends with the parent allows the parent to be involved in: (i)

the child’s daily routine; and

(ii)

occasions and events that are of particular significance to the child; and

[page 308] (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and is to be determined in accordance with the child’s best interests. 5.

Application of s 60CC factors

The best interests of Catherine, David, Edwina and Francis are to be ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC. (a) Capacity to care for the children Although there is no suggestion that Bianca is anything other than a loving and capable caregiver, there may, however, be misgivings about the effect of her religion on the children and their capacity to make future choices. The effect of the religious teachings on the children while they are in Bianca’s care will be a crucial consideration. Adam would mount an argument on the basis of Marriage of Firth (1988) 12 Fam LR 547; FLC ¶91-971 to secure residence if Bianca is taking the religion to such an extreme that it is not in the best interests of the children. In addition, the 2006 reforms, with the emphasis on shared parenting, are likely to lead to the necessity for a compromise to be reached between parents of different beliefs so that the ideal child–parent relationship can be maintained. Although Bianca has been and remains the primary care-giver, the children maintain a close relationship with Adam. There is no indication on the facts that Bianca is superior in terms of caregiving capacity and, unlike the situation in Re B and B where the

wife was said to be a parent of ‘exceptional character’, both parents display a caring commitment and seek to secure the children’s best interests. In fact, Adam may argue that he displays a stronger ability to provide for the needs of the children, including their emotional and intellectual needs: s 60CC(3)(f)(ii). From the fact scenario, it would appear that the children are more at ease and content in their father’s care and are quite distressed by the particularly stringent demands placed on them by the church and their mother. Against an order in Adam’s favour, Bianca would emphasise the importance of maintaining the children’s spiritual upbringing and that she is better able to care for their spiritual, emotional and intellectual needs. She would emphasise that changes in their current living circumstances would be detrimental to their spiritual growth, which, she would say, is a central part of their lives and will no longer be nurtured if they are required to live 50 per cent of the time with their father. She would argue that, as she has always been the children’s primary care-giver, she has a closer parental bond and it would be detrimental to the best interests of the children if that bond were not maintained: s 60CC(3)(d)(i). Bianca would argue that she is better able to assess their best interests and, by supporting their spiritual development, she is more conscious of her responsibilities as a parent: s 60CC(4). This argument may be quite strong as the court will be reluctant to make value judgments about Bianca’s religion: Marriage of Litchfield (1987) 11 Fam LR 435; FLC ¶91840; Marriage of Sheridan (1994) 18 Fam LR 415; FLC ¶92-517; Elspeth and Peter (2006) FamCA 1385. As was [page 309] noted above, the best interests will be determined in relation to contemporary social standards. Thus, in light of the children’s Aboriginal heritage (see below) and the joy they exhibit when

they spend time with their father, the court may even consider an alteration of residence, if Bianca is considered to be taking the religious devotion to extremes, as in Firth. (b) The importance of Koori culture Section 60CC(3)(h)(i) and (ii) indicates that the court must consider the children’s background when determining their best interests, which includes the need for children to maintain connection with their Aboriginal community. Adequate weight must be accorded to the experience of Aboriginal children raised in a non-Aboriginal environment and judicial consideration needs to go further than equal treatment between Aboriginal and nonAboriginal cultures, given the unique history of the Aboriginal population: B and R and the Separate Representative (1995) 19 Fam LR 594. Adam is part Koori and has recently shown a wish to become involved in Koori culture and to teach this culture to the children. This is a factor of grave importance and Adam could mount a strong argument that it is in the best interests of the four children that they become aware of their Koori heritage. Bianca has always argued that physical contact with Koori relatives is not crucial to the children’s best interests, and that she will ensure they learn of their Aboriginal heritage through reading books. This argument, however, runs counter to the right of Catherine, David, Edwina and Francis to enjoy their Koori culture in a meaningful way: s 60CC(6). She may argue that their spiritual upbringing as a characteristic of their background is even more vital, and given that Adam is a ‘sinner’ in the eyes of the church, it is not in the best interests of the children to effect a change in their circumstances: s 60CC(3)(d)(i). While this is a strong argument, in light of the countervailing factors outlined above and the new emphasis that the court has placed on shared parental responsibility, it is unlikely to sway the court to such a degree as to rebut the presumption. (c) Distress of the children

Adam could argue that any distress experienced by the children is due to the unreasonable expectations placed on them and their wish not to upset their mother. As in Firth, it could be submitted that because of the stringent requirements of the fundamentalist Christian group and the possible psychological effect and the strains this will place on them (particularly given their young age) and their relationship with their father, the court should give weight to the importance of the presumption: Goode. (d) The views of the children In accordance with Article 12 of the UN Convention on the Rights of the Child, s 60CC(3)(a) requires the court to consider the views of the children in deciding whether to make a particular parenting order: Marriage of Brear and Corcoles-Alfaro (1997) 22 Fam LR 219; FLC ¶92-768; Marriage of K and Z (1997) 22 Fam LR 382; FLC ¶92-783; Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC ¶95-598. The children exhibit clear enjoyment when spending time with their father and have indicated to Adam that they no longer enjoy their current arrangements. Adam could [page 310] argue that the court is required to give adequate weight to their views, especially those of the older children, which were clearly expressed to him and indicate a preference to live with him, and that they are distressed by the religious expectations placed on them by the church and their mother. At the lowest level, the children’s expressed views clearly indicate that they are in some ways unhappy with their mother and content in the care of their father. ‘Proper and realistic weight’ should be accorded to the expressed views of the children, depending on the strength and

duration of the views, their basis and the child’s level of maturity and appreciation of the matters at issue: Marriage of Harrison and Woollard per Fogarty and Kay JJ. In Marriage of Harrison and Woollard, the Full Court adopted the ‘Gillick competency’ test which is used to assess whether the child concerned displays sufficient understanding and intelligence given the level of maturity. If the views are soundly based and founded on proper considerations and are as well thought through as the child’s maturity permits, then they may be accorded such weight as is indicated by the circumstances. This principle has been affirmed in Re B and B. While further information about the maturity of each child would be helpful, Adam could submit that the children, aged 12, 10, eight and six, are sufficiently mature to recognise the importance of their ties with him. The children are not focusing on short-term pleasure but, rather, on the long-term religious ties. This would tend to indicate a maturity of thought. The parenting role Adam has played, and the close attachment to him displayed by the children, is not unlike that in Marriage of Harrison and Woollard: in that case, effect was given to the express views of children seven and eight years old. The court also placed emphasis on the fact that sound and strongly held reasons were offered. Although they are reluctant to upset Bianca, and although their views are not as vehemently expressed as in the case of R v F (1995) 20 Fam LR 118; (1996) FLC ¶92-650, it could be submitted that the children’s views are clearly ascertainable and sufficiently strong in expression and have indicated a clear unhappiness with attending church. While Bianca would point to the fact that the children are upset before and after contact periods, the children have clearly expressed the happiness that their time with Adam brings to them and, therefore, the court should conclude that these views are consistent with the best interests of the children which are the paramount consideration. Bianca could also argue that the expression of these views is a

result of manipulation by Adam; however, this would be unlikely to succeed unless there are facts to support this assertion. Alternatively, she may argue that significant weight should not be placed on the children’s views as there is insufficient evidence that they are unhappy because of her care or the church’s requirements: Central Authority v Perry (1995) 20 Fam LR 380. An alternative application of the principles in Marriage of Harrison and Woollard could allow Bianca to argue that the views of the children should not be given credence as they are too young to appreciate what is in their spiritual best interests. In Adam’s favour, the case could be distinguished from the situation in Litchfield where the children were traumatised by the contact with their father who was a sinner in the eyes of their religion. [page 311] In Litchfield, the child had expressed the wish not to see the father, which had a considerable impact on the court’s decision. In the facts before us, however, the children clearly enjoy the time they spend with their father and wish it to continue. This does upset Bianca, but only occasionally has the court been deterred from making a particular order because of the impact on one of the parents, and this has generally only been considered appropriate in extreme cases such as where there is continual harassment (Marriage of Sedgely (1995) 19 Fam LR 363; FLC ¶92-623) or a pattern of destructive and violent behaviour: Marriage of Irvine (1995) FLC ¶92-624 at 84,211; Re Andrew (1996) 20 Fam LR 538. Therefore, Adam is likely to succeed in obtaining an order that the children either live with him on an equally shared basis with Bianca (s 65DAA(1)(c)) or that they spend a substantial and significant time with him: s 65DAA(3).

Further discussion 1.

Does the 1989 United Nations Convention on the Rights of the Child have any real impact on the lives of Australian children?

2.

How might the concept of ‘parental responsibility’ offend some sections of the community?

3.

Discuss the ‘Gillick competency’ test and its effect on the legal capacity of a young person to make decisions for himself or herself. What bearing does this test have on family law matters?

4.

What is meant by the status quo in relation to children? Discuss the issues raised.

5.

How is the test of the ‘best interests’ of the child determined by the Family Court?

6.

Are sperm donors ‘parents’? Should they be classified as parents?

7.

Discuss the principles underlying relocation. Do they operate to the disadvantage of mothers?

_______________________ 1 2

3

See (viewed 27 March 2017). D J Higgins, Cooperation and Coordination: An Evaluation of the Family Court of Australia’s Magellan Case-management Model, Family Court of Australia, Canberra, 2007, p 8. The matter was reheard by Jordan J on 25 August 2009 who made

orders not dissimilar from those made by Moore J in that they provided for the children to live in Sydney on a week about basis if both parents lived in Sydney, or with the father if the mother remained in Victoria, but with school holidays and other times with her. On 22 September 2009 the mother (at the time selfrepresented) filed a Notice of Appeal against Jordan J’s orders. On 3 February 2009 the Full Court heard an application by the mother that the court at its expense provide the transcript of the trial before Jordan J. On 4 November 2010 the Full Court refused that application. The mother then filed a further application which was heard by the Federal Circuit Court on short notice on 8 February 2013. The father raised a Rice and Asplund [1979] FLC ¶90-725 threshold issue. This was subsequently listed for determination for three days commencing on 4 February 2015. No change to the orders made by Jordan J were made in the 2015 matter. See Sampson and Hartnett [2015] FamCA 64.

[page 313]

6 Parental Responsibility and the Child Support Scheme The duty of parents to provide for the maintenance of their children, is a principle of natural law … By begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents. Blackstone’s Commentaries on the Laws of England (1765), vol 1, p 435

Introduction 6.1 This chapter provides a general overview of the duty of a parent to maintain a child under the Family Law Act 1975 (Cth) (FLA), and the legislative scheme, the Child Support (Assessment) Act 1989 (Cth) (CSAA) under which children of separated, divorced or never married parents receive financial support. The question of assessment and collection of

maintenance, or child support, for children after the breakdown of their parents’ marriage or relationship poses a worldwide social, economic and legal dilemma. It has always been so and to date no perfect remedy has been found. Never before have so many children been the product of broken homes. This chapter considers parental responsibility, the rights of the child and the issue of child support in Australia. 6.2 The child support assessment, registration, collection and disbursement services are provided to parents and nonparent carers such as grandparents, legal guardians or other family members in Australia by the Commonwealth Department of Human Services (‘the department’) which has the responsibility with respect to the overall child support scheme in Australia pursuant to the CSAA. It is the department’s responsibility to assess child support, register agreements, collect child support and disburse services (where no private collection agreement is in place) to those caring for children. The department’s 2015–2016 annual report states the department transferred $3.5 billion to support 1.2 million children in that financial year. [page 314] 6.3 While parents may no longer be married or living together, they still have a fundamental responsibility for the upbringing and financial support of their children: CSAA s 3(1) and FLA s 66C. A great many parents who separate appear to have little regard to their continuing parental liability and would, in many instances, be scathing of the

principle of Blackstone that: ‘The duty of parents to provide for the maintenance of their children, is a principle of natural law.’ The difficulty of enforcing the payment of child support increases in circumstances of violence within the family and also in situations of multiple children born of two or, indeed, as is often the case, many relationships. The language used in 1765 by Lord Blackstone may seem archaic, but the passing of time has not changed the thrust of his observation with respect to the joint duty of parents to financially support their children until majority. In effect his pronouncement in 1765 seems extraordinarily modern. The obligation to provide support for children is a primary obligation upon parents. It has priority over all commitments of the parents apart from meeting their own necessary costs of self-support. Under Australian law, each of the parents of a child who is not 18 years of age has parental responsibility for the child unless a court order is made to the contrary. With respect to child support it relates to eligible children. Section 19 of the CSAA provides that an eligible child is one born after the commencement of the CSAA, which is 1 October 1989. However s 22 provides that a child under the care of a child welfare law is not an eligible child. An application for administrative assessment of child support may be made for a child if the child is: (a) an eligible child; (b) under 18 years of age; (c) not a member of a couple; (d) present in Australia when the application is made; and

(e) an Australian citizen or ordinarily resident in Australia on the day the application is made (refer to s 24(1)). An application may be made by a parent of the child pursuant to s 25 or a person who is not a parent but an eligible carer for the child pursuant to s 25A. Assessment cannot be made for the payment of adult child maintenance but an application to the family courts can be made. It should be noted that the primary responsibility to maintain children falls on the biological parents. Step-parents have a secondary liability to maintain children if the biological parents are not able to meet the child’s needs: FLA ss 66D(1), 66M(1), 66N. An assessment by the department cannot be sought with respect to a step-parent, however; only the court can deal with such an application. Where an application is made for child support with respect to a step-parent the court must have regard to the following matters: the length and circumstances of the marriage/relationship of the step-parent and the relevant parent of the child; [page 315] the relationship that has existed between the step-parent and the children; the arrangements that have existed for the maintenance of the child; and any special circumstances which if not taken into account

in the particular case would result in injustice or undue hardship to any person. The court must consider both the financial support necessary to maintain the child and the financial contribution that should be made by a party to proceedings towards the support of the child. A number of factors must be considered, including the income, earning capacity, property and financial resources of the party, the commitments of that party to support themselves or any child or person that they have a duty to maintain, the direct and indirect costs incurred in providing care for the child and any special circumstances which if not taken into consideration would result in injustice or undue hardship to any person. It should be noted that it is rare for a court to make an order imposing child support payments on step-parents: Marriage of Dodge and Krapf (1991) FLC ¶92-214. In Marriage of Mulvena (1999) FLC ¶98-006, the obligation was found to exist, but only to the extent that the biological parents could not fulfil that obligation, and in the circumstances no order was made against the step-father. At the time of hearing that application, the applicant (Mr Mulvena) and the first respondent (Mrs Mulvena) were married and living in a marital relationship. The first respondent had a daughter from a former relationship who lived with them. The applicant sought an order that he was under a duty to support his step-daughter. The applicant had another child with a Ms Edwards, who was joined as a second respondent to the proceedings. There was in existence an assessment of child support pursuant to the CSAA in respect of the applicant’s child with Ms Edwards. Ms Edwards opposed the order sought by the applicant, but the

first respondent (Mrs Mulvena) supported the application. The applicant pressed his claim for an order on the basis that a finding that he was under a duty to support his step-child would have consequences for the amount of support he would have to pay for his child with Ms Edwards. Also refer to Carnell and Carnell (2006) FMCAfam 476. For a discussion of the meaning of a parent, for the purposes of the Act, see Chapter 5.

The matter of Keltie and Keltie and Bradford [2002] FamCA 421 dealt with the issue of special circumstances where the child was aged over 18 years and was seeking orders for adult child maintenance. The matter first came before Brewster FM (as he was known then) who made a request to the Full Court of the Family Court to determine if the FLA gives the court power to make an order that a step-parent pay maintenance for a stepchild who has attained the age of 18 years. In this matter the child made the application against her biological father and stepfather. She was born in January 1983, her mother and step-father had lived together from 1991, they married in April 1993 and then her mother died in 1997. The court has the power to make child maintenance orders where a child is over 18 years of age if it is satisfied that the provision of maintenance is necessary to enable the child [page 316] to complete his or her education or because of the mental or physical disability of a child. The Full Court ordered the step-father to pay child maintenance, stating (at [42]–[43]):

… an order made pursuant to the provisions of ss 66M and 66N is an order dealing with the maintenance of a child and is thus a child maintenance order. We would agree with the view expressed by Chisholm J. in Carpenter and Carpenter [1994] FamCA 89; (1995) FLC ¶92-583 that the terms ‘child’ and ‘children’ used in the now Division 7 of Part VII refer to a relationship rather than an age: see also Smith; St James; Smith v Wickstein (1996) FLC ¶92-714.

Where a person donates sperm by impregnating the mother by natural means, the donor is a parent and liable for child support. This is even in circumstances where the mother is in a lesbian relationship and the donor father has an express agreement with the mother that he has no legal rights to the child and is not responsible for providing for the child: ND and BM (2003) 31 Fam LR 22; [2003] FamCA 469. However, where the donation is not via natural means the donor is not a parent: B and J (1996) 21 Fam LR 186; FLC ¶92-716. Refer to Re Mark: an application relating to parental responsibilities [2003] FamCA 822 for a comprehensive discussion on donors and child support. 6.4 The Child Support Scheme is of assistance only to those families where there is a capacity to pay. Families with children where one parent is dead, missing or unknown receive no additional income from child support, nor do those whose liable parent has no money. Where the liable parent is in receipt of Centrelink benefits they generally pay a nominal amount which is automatically deducted from their benefit (this can be as little as $7 per week). If we take the

view that Australia should have a positive and equitable policy in relation to the financial needs of all children, then injustice is apparent. Such children face a double jeopardy. First, the child will lack a relationship with one of his or her parents (generally a cause for regret) and second, the child may be discriminated against in a financial sense by the Commonwealth. Such a situation contravenes Art 27 of the United Nations Convention on the Rights of the Child by failing to extend specialist care to sole parent families.

The impetus for legislative intervention 6.5 It is a recognised function of legislation to cure an ‘ill’ or ‘mischief’ in the common law, or to achieve clarification and greater efficiency in an area of an established principle of law. There has always been a common law duty of parents to support their children in financial terms and otherwise. As pointed out above, it is not, however, a duty universally observed by separated parents. Some parents who are liable to pay child support refuse outright, or evade their duty by making it difficult for the payee parent to enforce the obligation. This is so even where there is a court order in place. In addition, the reticence of some parents to seek [page 317] child support is based on fear of violence from the liable parent. This situation and a general reluctance may also be partially explained by the fact that prior to the present

administrative scheme the required steps in the process were onerous for a parent seeking child support. For example: recourse to the court to obtain an order was time consuming and often too expensive; amounts ordered by the courts were paltry and bore no relationship to the real costs of maintaining a child; such orders as were issued by the courts meant that is was difficult to update the amount payable so that it reflected, for example, inflation or a greater capacity of a parent to increase the amount payable; enforcement of court orders was clumsy and difficult, resulting in about 70 per cent of parents avoiding liability; and this ran counter to social policy that the duty to financially support a child lies primarily with the parents of that child, rather than the public purse.

Child support — a brief history 6.6 In response to the upsurge in the breakdown of marriage and intimate relationships, the increasing numbers of children living in poverty, the lack of financial support of children by many parents and the escalating welfare bill, Australia introduced the Child Support Scheme in 1988. The CSAA establishing the Child Support Scheme passed through both Houses of Parliament with bipartisan support and achieved a unique integration of the social security, taxation and family law systems. In essence, the intention behind the scheme was two-

pronged — preserving the public purse and enforcing parental duty. The very thrust of the child support legislation is that both parents share in the cost of supporting their children according to their financial capacity and that Commonwealth involvement and expenditure is limited to the minimum necessary for ensuring the children’s basic needs are met. The CSAA provided for an assessment of child support to be made administratively and did away with the ability for an order to be made for child maintenance under the FLA for the support of eligible children.

Principles of the Child Support Scheme 6.7 The main principle of the Child Support Scheme is a simple one, namely: the parent who does not live with their children because of separation or divorce (the payer) is required to make a financial contribution towards their upbringing. The manner in which contributions are calculated appears more complicated. The following are taken into account: the payer’s income and the percentage of that income assessed on the basis of the amount that parent would contribute in an intact family; [page 318] the exempt amount of the payer’s income for his/her own support when calculating income for child support; and

the amount of the payee’s disregarded income, that is, the amount the payee can earn until it affects the calculation of the child support payment. See (viewed 1 May 2017). 6.8 When first established, the Child Support Agency was located in the Australian Taxation Office. It now forms part of the Department of Human Services. The Australian Taxation Office provides the department with access to tax records, is able to trace and locate liable parents, and provides a straightforward method of collection of child support payments through the taxation system. The department has the power to collect child support payments from the liable parent and distribute them to the eligible parent. Some parents, however, are able to make their own arrangements for payment and collection. Riethmuller FM (as his Honour then was) set out the objects of the CSAA in the decision of Bagala and Bagala [2009] FMCAfam 953 at [20] and [21]: Section 4(2)(c) of the [Child Support Assessment Act 1989 (Cth)] seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been two sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments. The first was the introduction of the departure process under Part 6A of the Act, allowing for administrative departures from child support assessments. The second change was providing for objection rights following

Part 6A decisions, and the third significant change provided for review by the [Social Security Appeals Tribunal]. All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship on applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well-developed administrative system has been developed. The objects and purpose of the Child Support Scheme are to provide an informal, inexpensive and timely avenue of review for disputing parties.

Formula for assessing child support 6.9 The formula is contained in a new Pt 5 of the CSAA. The formula takes into account the incomes of both parents, the costs of children at different ages and the level of care provided by each parent. In its simplest form, the formula works as follows: 1.

Work out each parent’s child support income which is each parent’s taxable income (plus any net rental loss and fringe benefits) less the ‘parenting self support amount’ which is $24,154 as at 2017 (indexed annually): refer to (viewed 5 May 2017) for formula values and tables. If a person has other dependent children or more than two child support assessments, a deduction is made at this step. [page 319]

2.

Work out the combined child support income which is the child support income of the parents added together.

3.

Work out the income percentage by combining the child support income at step 2; each parent’s child support income can be viewed as a percentage. For example: If Mary’s child support income amount is $20,000 and Fred’s is $60,000 at step 1, then the combined child support income is $80,000 (step 2). Mary’s income percentage is 25 per cent; Fred’s income percentage is 75 per cent.

4.

Then one must work out the care percentage. A parent’s care percentage is based on the number of nights in a 365-night calendar year the child lives with each parent. For example: If Mary and Fred had one child who lived with Mary for 292 nights a year, and Fred 73 nights a year then Mary’s care percentage is 80 per cent and Fred’s care percentage is 20 per cent.

5.

Work out the cost percentage of each party by calculating their percentage of care (step 4), using this table in s 55C (CSAA): Percentage of care

Cost percentage

Nil to less than 14%

Nil

14% to less than 35%

24%

35% to less than 48%

25% + 2% for every % > 35%

48% to 52%

50%

More than 52% to 65%

51% + 2% for every % > 53%

More than 65% to 86%

76%

More than 86% to 100%

100%

If we take the example of Mary and Fred’s situation, Mary’s care percentage (step 4) was 80 per cent, so her cost percentage is 76 per cent and Fred’s care percentage was 20 per cent, so his cost percentage is 24 per cent. 6.

Then work out the child support percentage by taking into account each parent’s income percentage (step 3) minus their cost percentage (step 5) which represents their child support percentage. For example: Mary: 25% − 76% = −51% child support % Fred: 75% − 24% = 51% child support %

Where the child support percentage is positive, the parent will need to pay child support. This parent will be known as the liable parent. If the child support percentage is negative, then that parent will be entitled to receive child support. This parent will be known as the parent entitled to child support. [page 320] 7.

Then work out the cost for a child. This is calculated by the table in Sch 1 (CSAA) that is updated annually and can be found on the Agency’s website: (viewed 5 May 2017). For example: The combined child support income of Mary and Fred (step 2) was $80,000. Under the table, if their child is

under 12, the cost of the child is $11,594 + $0.12 for every dollar over $72,462. So the cost of their child would be $11,594 + ($7,538 × $0.12 = $904.56) = $12,498.56.

8.

The final step is to work out the child support amount. This is done by multiplying the liable parent’s child support percentage (step 6) by the cost of the child (step 7). For example: Fred, being the liable parent, would be assessed to pay 51 per cent of $12,498.56 = $6,374.26 per annum, or $531.18 per month.

Other points regarding the formula are: There is a minimum annual assessment payable for each case up to a maximum of three assessments. Where a parent earns less than a single pension, but does not receive a pension, a higher minimum applies and is payable for each child. A parent can ask the registrar to exclude from his or her income additional income earned, in the three years after separation, to assist with postseparation costs. A calculator is provided at (viewed 5 May 2017) to assist with assessing child support. Child support agreements 6.10 Part 6 of the CSAA introduced the concept of two types of child support agreements: binding child support agreements and limited child support agreements.

Section 80C sets out the technical requirements for an agreement to be binding. They mirror the requirements for a financial agreement under Pt VIIIA of the FLA. Binding child support agreements have the following differences from limited child support agreements: Each party must first seek independent legal advice (from another lawyer) about the agreement’s advantages and disadvantages and effect on their rights. Each lawyer must provide a certificate that they provided that advice. The agreement may be for any amount, even less than the assessed amount. The agreement may only be ended by a new binding agreement (for which independent advice is also required) terminating the agreement, or a court order setting it aside. A child support assessment does not have to be in place (note — unless a non-periodic provision is included in the agreement). After the agreement is executed a copy of the agreement must be given to each party. [page 321] Limited child support agreements may be brought to an end after three years if a party wishes, or sooner in the case of a significant change of financial circumstances. They have to be in writing, signed by both parents (s 80E) and lodged with the Child Support Agency, but separate legal advice is

unnecessary. The requirements for a limited child support agreement are: There must be a child support assessment already in place. The annual amount payable under the agreement must be equal to or more than the assessed annual amount. Binding child support agreements can be terminated pursuant to s 80D(1)(a) of the CSAA where the parties enter into a new binding agreement that includes a provision to the effect that the previous agreement is terminated; or pursuant to s 80D(1)(b) where the parties sign a termination agreement to the effect that the previous binding agreement is terminated; or by court order.

Court’s jurisdiction and child support 6.11 The following applications can be made to the Family Court of Australia or the Federal Circuit Court of Australia with respect to child support: Applications for a declaration under s 106A of the CSAA are generally made where a party (usually the mother) wishes to establish that an administrative assessment of child support should be made against the other parent (usually the father). The applicant has been unable to obtain an assessment through the department registrar that the respondent is the child’s parent. Until a declaration is made the party cannot obtain an assessment from the registrar. Refer to s 29 which sets out the circumstances in which the registrar will be satisfied that a person is the parent of the child. Also refer to s 30(2) which refers to the

registrar refusing an application. Prior to invoking s 106A the applicant must demonstrate that they have sought an assessment from the department but have been refused. The applicant would usually seek a parentage test, which can only be ordered by the court pursuant to s 69W. If the parentage test concludes that the respondent is more likely than not to be the child’s father, the court will make a declaration of parentage pursuant to s 69VA of the CSAA: ‘… that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth’. The court will then make a declaration pursuant to s 106A of the CSAA that the respondent should be assessed as the liable parent.

In the matter of Johnstone and Hayward [2014] FCCA 820 the applicant mother made two unsuccessful attempts to apply for administrative assessment of child support. She had first applied for an assessment in January 2013 but the assessment was refused on two grounds: she was unable to prove that the respondent was the child’s father or that she was in fact the child’s mother. The respondent had refused to sign the child’s birth certificate and the mother did not lodge the certificate but instead made the application for an assessment without the required evidence. [page 322] In October 2013 the mother was assisted by legal aid who wrote to the respondent asking him to sign a statutory declaration admitting he was the father. He refused to do so. The mother was then advised to apply for the child’s birth certificate and upon obtaining that made a second application for an

assessment with the requisite evidence. The assessment was refused and the letter from the registrar dated 29 November 2013 stated the assessment was refused on the ground that the mother had not provided evidence that the respondent was the child’s father. With that evidence the mother then filed an application for a declaration pursuant to s 106. At court the father consented to undertake a parentage test which demonstrated that there was a 99.99998 per cent probability that he was the father’s child. The father then objected to the mother relying on her first refusal by the registrar, dated 31 January 2013, rather than the second refusal dated 29 November 2013. The application for a declaration was out of time and the court refused an extension of time but did permit her to rely on the second refusal. An application must be made within 56 days of receipt of the registrar’s letter of refusal: refer to Federal Circuit Court Rules 2001 (Cth) r 25A.06. Applicants can seek leave for an extension of time pursuant to r 3.05. In this case the error meant the mother could not claim 10 months of child support from the father.

Applications for a declaration under s 107 of the CSAA can be made where a person is held to be liable for the payment of child support but they deny the liability. This application must be filed within 56 days of the assessment. The liable parent will usually request a parentage test to prove they are not the parent.

The matter of Forsythe and Latimer [2010] FMCAfam 478 involved an applicant and respondent who did not live together but who were involved in an ongoing relationship for six–eight months and had a sexual relationship. When the child was born the father consented to the assessment of child support. When

the child grew up the father suspected he was not the child’s biological father. He persuaded the mother to undergo a parentage test of the child which concluded he was not the father. A declaration was made pursuant to s 107 of the CSAA that the father was not liable for the payment of child support. This matter is discussed further at 6.22 below where the father’s application pursuant to s 143 is discussed in detail. Where the court grants a declaration that the applicant is not a liable parent then it must then consider making an order pursuant to s 143 (amounts paid where no liability to pay exists).

Applications for a stay under s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) are usually invoked when a party applies for a stay of collection of child support or for enforcement of arrears in child support. Before this application can be made there must be substantive proceedings [page 323] before the court, before the registrar or before the Social Security Appeals Tribunal. Refer to: –

s 111C(3) which sets out the power of the court to make a stay order;

–

s 111C(4) which states a stay order may be varied or revoked and may be made subject to terms and conditions, either until a decision is made in the substantive proceedings or for a specified period: s 111C(5).

Applications for recovery of child support under s 143 of the CSAA: refer to Levine and Levine [2011] FMCAfam 821 and 6.22 below. Applications for enforcement of arrears of child support are usually brought by the Child Support Registrar and commence by way of an application in a case supported by an affidavit. A parent’s liability is assessed by way of their annual lodged tax return. Where a parent fails to lodge a tax return the registrar can apply a deemed taxable income pursuant to s 58 of the CSAA. Respondents cannot rely on a failure to lodge a tax return as an excuse to avoid liability based on a deemed taxable income: Cantrell and Jennings [2009] FMCAfam 229; Bauer and Becker [2009] FMCAfam 480; Bagala and Bagala [2009] FMCAfam 953; Hacheri and Berrios [2010] FMCAfam 668; Child Support Registrar and Rawlings [2013] FCCA 370. Appeals against decisions of the Social Security Appeals Tribunal: an appeal before the Tribunal is a hearing de novo where the parties give and present evidence. Pursuant to s 110B of the Child Support (Registration and Collection) Act there is a right of appeal from the Tribunal to the Family Court or the Federal Circuit Court. The appeal must be filed within 28 days of receiving a written statement of reasons for the decisions: Federal Circuit Court Rules r 25A.06. The appeal is not heard de novo but is an appeal in the original jurisdiction of the court by way of judicial review. The appeal is on a question of law, therefore fresh evidence cannot be adduced unless it is evidence going directly to a claim that there was some irregularity in the Tribunal hearing: Knibbs and Preston (SSAT Appeal) [2013]

FCCA 479; Carrigan and Fredericks (SSAT Appeal) [2011] FMCAfam 544; (2011) 45 Fam LR 657. Urgent maintenance orders can be made pursuant to s 139 of the CSAA. There are limited opportunities to make such an application as they can only be made where the applicant has applied to the registrar for an administrative assessment. If an order is granted it will be an interim order and will remain in force until the application for administrative assessment is refused or accepted. The court must be satisfied of the following: 1.

the agreement of a party was obtained by fraud or failure to disclose material information; or

2.

the agreement of a party was obtained by through undue influence or duress; or

3.

the agreement of a party was obtained by unconscionable conduct such that it would be unjust not to set the agreement aside; or [page 324]

4.

exceptional circumstances have arisen since the agreement was made, such that the child or the applicant would suffer hardship if the agreement remained in place: CSAA s 136(2)(d).

The issue of ‘exceptional circumstances’ was considered in Cheyne and Masters (SSAT Appeal) [2014] FCCA 856. The parents entered into an agreement where the child was living

with the mother and spending five nights per fortnight and half the school holidays with the father. Under the agreement the father was paying the mother $239.66 per week in child support. The child’s living arrangements changed where he began living with the father six nights per week and one night with the mother. The change of living arrangements was at the request of the mother who moved interstate. In the first instance the father objected to the continuance of the agreement to the department. An objections officer agreed with the father, saying the agreement was no longer valid because of the child’s change in living arrangements. It then went on appeal to the Social Security Appeals Tribunal which set aside the objection officer’s decision saying the agreement was valid and enforceable. The father then initiated this appeal, seeking to set aside the decision of the Tribunal and sought an order pursuant to s 136(2) of the CSAA to set aside the agreement. The mother argued the binding child support agreement was valid regardless of the nights the child spent with the father. Terry J said (at [202]): The mother must have been aware all along of the consequences of opposing the father’s s 136 application and although she might argue that she genuinely believed that the law was on her side, applying common sense to the problem ought to have given her cause for reflection. I do not accept the mother’s contention that the application of common sense has no place in legal disputes. The court was satisfied that after their agreement was signed, exceptional circumstances had arisen and that the father would suffer hardship if the agreement was not set aside. The mother successfully appealed: Masters and Cheyne [2016] FamCAFC 255. The full court consisting of Murphy, Aldridge and Austin JJ dismissed the application to set aside the agreement. Murphy J said (at [37]–[41]):

Making ‘private arrangements’ in the form of a binding child support agreement brings with it a significant difference in the role that a court may play when compared to its potential role in respect of limited child support agreements. For example, a limited child support agreement is susceptible to being set aside if, for example, a court determines that the parties’ ‘private arrangements’ are not what the court considers ‘proper or adequate’ (CSA [Child Support (Assessment) Act 1989 (Cth)] s 136(2)(c)(ii)). Thus, the synthesis of the CSA’s Objects in the case of a limited child support agreement sees the parties’ arrangements being required, in effect, to mirror the CSA’s other Objects including, as a particular example, the determination of the level of child support being referable to the parental capacity to meet the same (CSA s 4(2)). That is to be contrasted sharply with the position which pertains to binding child support agreements. While the terms of neither type of agreement can be varied (ss 80CA; 80F(1)), and while fraud, undue influence, duress, unconscionable or similar conduct can found [page 325] the setting aside of either (s 136(2)(a), (b), (c)), binding child support agreements cannot be set aside by reference to a court concluding that the child support provided within them is not ‘proper or adequate’; nor can they be set aside because of a significant change of circumstances; nor because of idiosyncratic notions of ‘fairness’ or ‘unfairness’. The statutory Object permitting parties to make private

arrangements and to ‘limit interference with their privacy’ is given particular force by reason of the necessity to show ‘exceptional circumstances’ before a court will intervene in them and the additional requirement to prove ‘hardship’ if the parties are held to their agreement. The ordinary and natural meaning of each such expression must be seen within that statutory context. Murphy J agreed with the trial judge in finding there were exceptional circumstances but said that one then needs to consider: ‘If, by reason of establishing exceptional circumstances, the binding child support agreement is susceptible to being set aside, would holding the parties to the agreement create hardship for the applicant or the child?’: at [67], [68]. In terms of ‘hardship’, Aldridge J determined: The primary judge found: I am satisfied that unless the agreement is set aside the father will suffer hardship in the sense of being required to make a payment to the mother in circumstances not contemplated by the child support legislation. He will also suffer hardship in not being able to obtain a contribution from the mother to the costs of caring for [the child]. This is not a financial hardship given his income but it is a hardship nevertheless because it is unjust that the mother should not make a contribution if she is capable of doing so.

In these passages the hardship described by her Honour is merely the consequence of the agreement and flows from its terms. It does not arise from the changed circumstances. As such, it does not fall within the terms of s 136(2)(d). It is quite clear from s 136 that the relevant hardship must flow from the exceptional circumstances themselves because of the use of the words ‘because of’. There is no reason at all why a binding child support

agreement should mirror the administrative child support assessments from time to time. What would be the point of such an agreement if that were so? On the contrary, the point of such agreements is to give the parties flexibility to agree on fixed and certain arrangements, often as part of a larger overall agreement. It is difficult therefore to assert that hardship arises merely because had there been no agreement, an administrative assessment would have resulted in different payments: at [159]–[161]. His Honour continued (at [166]–[167]): In any event, the evidence falls well short of establishing hardship. Hardship is ‘akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment’ and means ‘something more burdensome than “any appreciable detriment”’: Whitford and Whitford (1979) FLC ¶90-612 at 78,144–78,145. It follows therefore that the father had not established hardship and this challenge also succeeds.

[page 326]

In the matter of Lincoln and Lincoln [2015] FCCA 18 the father sought to have a binding child support agreement set aside along with the arrears of $20,000 he had accumulated. The agreement, signed by the parties in February 2012, required him to pay $2,200 per month. The father had been a very successful businessman but in May 2012 his business went into liquidation and he entered a Part X Personal Insolvency Agreement which concluded in June 2013. In his application the father described

his circumstances from the time he signed the agreement to the present time as being ‘at polar opposites’: at [15]. The mother complained that the father continued to live his opulent lifestyle: at [19]. The financial statements filed by each of the parties indicated low income and limited assets, however, the father’s statement indicated he paid $700 per week rent. The father also claimed the late model Mercedes he was driving belonged to a friend who had lost his licence and couldn’t pay out the hire purchase. The mother claimed the father was still earning a sixfigure income and the father stated how bad his position was. Burchardt J concluded the truth lay somewhere between the parties’ competing positions. On the one hand, Burchardt J held that it would not be just and equitable for the father to pay the $2,200 per month and set aside the agreement based on exceptional circumstances. The agreement was set aside and the father was to be subject to an administrative assessment. On the other hand, is Honour declined to discharge the arrears, stating (at [67]): However contradictory it might seem at first blush, it seems to me just and equitable that the extant debt should remain. Its collection will be a matter for the Child Support Agency. Contrary to submissions from counsel for the applicant, it is not just and equitable to discharge the arrears. The applicant entered into a bargain with the respondent and if he had adjusted his lifestyle, in my view, it would certainly have been possible for him to have met it for a longer period than he did.

Matters relating to child support agreements 6.12 A number of new matters have come before the Family Court in recent times relating to child support

agreements on the question of whether or not they should be enforced or set aside.

In Neville and Neville [2010] FMCAfam 1162, heard before Cassidy FM, a binding child support agreement was set aside due to hardship. The agreement had been made in 2007 and considered by the Child Support Registrar as a binding agreement. The father had been paying the cost of the children’s school fees of approximately $10,000–$12,000 per annum through the assistance of his mother. The father sought to have the agreement set aside on the following grounds: his mother could no longer assist him with the payment of the school fees; the introduction of the child support reform on 1 July 2008 made it more difficult to set aside an agreement; and his payments (being $206 per week more than the amount he would now be assessed to pay) were ‘cumulatively’ exceptional within the meaning of s 136(2)(d) of the CSAA. [page 327] Cassidy FM concluded (at [31]): I am … satisfied that the loss of his mother’s financial support has created hardship sufficient to satisfy s 136 of the Act. The father is unable to pay his current child support debts without accruing debts on his credit card. This problem will be cumulative if the agreement is not discharged.

The next case provides a good example of the jurisdiction the court has to set aside agreements that are considered binding.

Leroy and Moreau [2010] FMCAfam 903 was a matter that concerned whether a child support agreement entered into before 1 July 2008 could be varied or terminated. Baumann FM said (at [23]): [A]s a matter of statutory interpretation [the father’s remedy as to the pre-1 July 2008 period being confined to Social Security Appeals Tribunal review then a limited right of appeal], this court does not have jurisdiction to ‘terminate’ the agreement prior to 1 July 2008. It may however consider the evidence and determine whether the binding child support agreement should be terminated after 1 July 2008, which is what the court now proposes to do.

The following case provides another example of a matter where the financial circumstances of the payer have been taken into account and, in particular, what the court considers to be ‘exceptional circumstances’.

In Venson and Venson (No 2) [2010] FamCA 963 Austin J ordered that a child support agreement be set aside (for a particular three-year period) as the applicant, within the meaning of s 136(2)(d) of the CSAA, would suffer hardship due to exceptional circumstances since the agreement was made if the agreement were not set aside. Austin J said (at [99]):

The term ‘exceptional circumstances’ has not been defined with precision, but generally encompasses events which are quite extraordinary, which occurred unexpectedly, and which could not have been reasonably foreseen or contemplated. Those features incorporate both subjective and objective considerations. Although that is the general characterisation, neither one nor all of those characteristics is either necessary or sufficient to meet the test. It is a question of fact and degree in each case. In this matter Austin J was ‘not satisfied that the deterioration in [the applicant’s] financial circumstances [was] an exceptional feature of the case’ (at [101]) but then said this (at [108]–[111]): I find … that when striking their child support agreement … the parties fundamentally believed that B Company would always generate sufficient profit to enable the father’s payment of $2,000 in child support each month from his share of those profits — at least until B Company sold its assets and ceased its business so as to invoke the operation of O 5(d)(ii). The parties did not ever contemplate that, while B Company [page 328] conducted the business, their respective share of the profit would be less than $2,000 per month. It was simply assumed by both of them that the father’s share of monthly profit would always exceed that amount so as to permit his payment of $2,000 per month in child support from that source. The problem arises because their expectation was not realised. They did not actually contemplate that B Company’s operation of the vessel would not prove particularly profitable. Their

assumptions were not unreasonable, given the advice they received and the plans they made when embarking upon the project. Those conclusions are drawn from various aspects of the evidence. Importantly, the parties each gave clear evidence to that effect. It is also evident from the way in which O 5(d)(i) was drafted, which assumes that the father would pay the child support from his share of B Company profits and no other source. In addition, the mother’s acquiescence to the piecemeal payment of child support in 2001 and 2002 is testament to her beliefs. She did not expect receipt of child support from the father at the rate of $2,000 per month when the profits generated by B Company were insufficient to sustain that level of payment. When the child support agreement (being O 5(d)) was subsequently registered with the Registrar in June 2003, to the parties’ surprise, the Registrar adopted a quite different interpretation of O 5(d)(i) to that mutually adopted by the parties. The father’s child support liability was then calculated consistently with the Registrar’s distinct interpretation of the agreement requiring the payment of $2,000 per month regardless of the father’s income from B Company. I accept the mother’s evidence that she sought to disabuse the Registrar of his erroneous interpretation, but the Registrar took no notice. She could do nothing more. Although the father formally objected to the erroneous interpretation, his objection was dismissed. He could do nothing more either. The father was therefore charged with a child support liability by the Registrar to which neither he nor the mother agreed. Given that the Registrar was purporting to enforce an agreement between the parties, it was an

exceptional situation for the parties to be subjected to rights and obligations contrary to their mutual understanding of their agreement.

Grounds for review 6.13 There are six ways in which to have an assessment reviewed: 1.

Notification by a parent of change to a formula element. Such changes may include: any new care arrangement for the children (s 52 or s 74A); any change in the number of dependent children (s 73A); any change of income (ss 34A, 58A and 63A); and any terminating event (ss 74 and 12). A parent requesting a change must inform the Child Support Registrar (of the Child Support Agency) of such change within 14 days (s 160). If a liable parent’s income decreases by more than 15 per cent, they can lodge with the Agency an ‘Estimate of income for use in a child support assessment’ under s 60 of the [page 329] CSAA. Where the Agency accepts the estimate in income

then an adjustment will be made. The Agency has the power to retrospectively reassess the liable parent, and impose a penalty if their income is found to be at least 10 per cent greater than the estimated amount (s 64A). 2.

Change of assessment initiated by Child Support Registrar (Child Support Agency) The Child Support Agency can initiate a change of assessment without an application from the payer or payee if it is satisfied that the assessment is ‘unfair’ because of a parent’s income, earning capacity, property or financial resources, and that it is just and equitable and otherwise proper to change the assessment (ss 98K and 98L). The Registrar may also make a discretionary amendment of an assessment in certain circumstances as set out in s 75.

3.

Administrative circumstances

change

of

assessment

in

special

Part 6A of the CSAA (s 98C) empowers the Child Support Registrar, upon the application of a liable parent or carer entitled to child support, to depart from a child support assessment upon any of the grounds for departure contained in s 117(2) that a court can use to review an administrative assessment where there is an application to the court for a departure order. The Child Support Agency discusses the application and any response or cross-application with the parties and considers any documents produced by either party

in support of their case. They may also obtain third party information. A senior case officer acting as the delegate of the Child Support Registrar determines the application and gives detailed written reasons for the decision made. Legal representation is not permitted: s 98H(5). Where the Agency feels that the matters are too complex to be dealt with under Pt 6A it may recommend that the applicant seek a departure order through the court: s 98E. 4.

Objection requiring Child Support Registrar to reconsider A party can apply for an internal reconsideration of the change of assessment decision. This step must first be taken before the decision can be reviewed by the Social Security Appeals Tribunal (refer to Pt VII of the Child Support (Registration and Collection) Act 1988 (Cth) (CSR & C Act). An objection must be received in writing: refer to s 80 (CSR & C Act). An objection cannot be lodged on the ground that the person is not a parent of the child: s 80(4). Objections must be lodged in writing within 28 days: ss 81 and 84. A copy must be served by the Registrar on the other party: s 85. This may be lodged out of time (s 82) and it may be opposed (s 86); it must be considered within 60 days: s 83. The objection is a hearing de novo and new information or evidence can be submitted.

5.

(Non-adversarial) review by SSAT Where a person is dissatisfied with a reconsideration they can apply to the Social Security Appeals Tribunal for review of the decision under Pt VIIA of the

[page 330] CSR & C Act. The review must be ‘fair, just, economical, informal and quick’: s 88. Refer to s 89 for the type of decision and who may apply. Where the Registrar has disallowed an objection to a refusal to make a Pt 6A determination due to complexity, an application cannot be made: s 89(2). Pursuant to ss 90 and 94 a written application, stating the reasons for seeking a review, is to be lodged within 28 days and a copy must be served by the Tribunal on the Registrar and the other party: s 102. An application may be lodged out of time: s 82. Oral applications are also permitted. The Registrar is required within 28 days to send to the Tribunal the decision under the review with findings of fact, the evidence on which those findings were based, and the reasons for the decision, and a copy must be given to each party: ss 95 and 96. A pre-hearing conference may be convened: s 103. The hearing is governed by ss 103A–R. Refer to ss 103C, D, E and F for further information. The SSAT may affirm, vary, set the decision aside, substitute its own decision or send back to the Registrar for reconsideration: s 103S. There is also provision for consent orders (s 103W) and costs. Parties to a review must bear their own expenses in relation to the review: s 103Z(1). The Tribunal may order the Commonwealth to reimburse a party’s travel and accommodation costs: s 103Z(2).

6.

Appeal to the Administrative Appeals Tribunal from Social Security Appeals Tribunal as to percentage of care Refer to s 103VA of the CSR & C Act. The following case is an example of a matter on appeal from the Social Security Appeals Tribunal to the Federal Circuit Court where a child no longer lives with a parent.

In Polec and Staker (SSAT Appeal) [2011] FMCAfam 959 the father appealed against the SSAT’s decision to affirm the Child Support Registrar’s decision that the departure of the child (born in 1992) from his mother’s home to take up an apprenticeship did not constitute a child terminating event or a significant reduction in the percentage of care provided by the mother. The child moved out and initially lived with family friends. The mother claimed that she paid about $700 to the family friends towards the living expenses of her son. The child then moved to the maternal grandmother’s home who did not accept any money from the mother in relation to the child living there. The mother claimed the child bought his own food, and some was purchased by her; and that she also paid $130 weekly into a bank account although the child was not a signatory to that account. Hughes FM (at [24]) cited ss 74 and 75 of the CSAA as to the Registrar’s duty to give effect to a child support terminating event and power to amend an administrative assessment, examining whether the child had ‘no eligible carers’ within the meaning [page 331] of s 12(2AA) and the meaning of ‘care of the child’ by reference

to the Child Support Agency’s Guide. In allowing the appeal, Hughes FM said (at [43]–[46]): In the absence of a legislative definition of ‘care’ of the child, the Tribunal was entitled to have regard to the Guide published by the Child Support Agency. However the Tribunal did not adequately consider the matters set out in the Guide and, in particular, ‘who has responsibility for making arrangements for and decisions about the child’s welfare as well as who is meeting the child’s costs’. … The Tribunal did not discuss who has responsibility for making arrangements or decisions about the child’s welfare. It may be that, apart from the initial arrangements for the child to board with the [B]s, the child has been making his own decisions about where he lives and is wholly or substantially caring for himself. The most obvious matter to be considered in the circumstances of this case in which the child was living with neither parent was who is meeting the child’s costs. There was limited discussion by the Tribunal of the financial arrangements for the child and no findings were made. The evidence of the … respondent that none of the money she had been putting aside in a separate account for the child had in fact been used for his benefit would logically weigh in favour of a finding that the child is wholly or substantially self supporting. … What was required was an analysis of the evidence which did not occur. … there had been a major change in the care arrangements for the child. There was no consideration by the Tribunal of what that meant for the purpose of the Act, even though the appellant argued the move represented a terminating event or at least a significant

reduction in the level of care provided by the first respondent.

Application for departure order from administrative assessment 6.14 Section 116 of the CSAA indicates that if an administrative assessment has been made, then an application pursuant to CSAA Pt 6A may be made seeking departure from the formula. (1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if: (a) all of the following apply: (i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; (ii) an objection to the refusal has been lodged; (iii) the Registrar has disallowed the objection; or (aa) all of the following apply: (i) a decision has been made in respect of the administrative assessment; (ii) an objection to the decision has been lodged; (iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in

respect of the administrative assessment; or

[page 332] (ab) the SSAT [Social Security Appeals Tribunal] has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or (b) both of the following apply: (i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act; (ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or (c) in the case of a liable parent — the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).

An applicant must also file such affidavit evidence as may be required by the court to establish his or her case as falling within one of the ‘special circumstances’ listed in s 117: Matters as to which court must be satisfied before making order Court may make departure order (1) Where: (a) application is made to a court having jurisdiction under this Act for an order under this Division in

relation to a child in the special circumstances of the case; and (b) the court is satisfied: (i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and (ii) that it would be: (A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and (B) otherwise proper; to make a particular order under this Division; the court may make the order. Grounds for departure order (2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows: (a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of: (i) the duty of the parent to maintain any other child or another person; or (ii) special needs of any other child or another person that the parent has a duty to maintain; or

[page 333] (iii) commitments of the parent necessary to enable the parent to support: (A) himself or herself; or

(B) any other child or another person that the parent has a duty to maintain; or (iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain; (aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10)); (b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected: (i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or (ia) because of special needs of the child; or (ib) because of high child care costs in relation to the child; or (ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents; (c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child: (i) because of the income, earning capacity, property and financial resources of the child; or

(ia) because of the income, property and financial resources of either parent; or (ib) because of the earning capacity of either parent; or (ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child. High costs involved in enabling parent to care for a child (2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by: (a) dividing the parent’s adjusted taxable income for the period by 365; and (b) multiplying the quotient by the number of days in the period. (2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.

[page 334] High child care costs (3A)The ground for departure mentioned in subparagraph (2)

(b)(ib) is taken not to exist unless: (a) the costs are incurred by a parent or a non-parent carer; and (b) the child is younger than 12 at the start of the child support period. (3B) Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by: (a) dividing the parent’s adjusted taxable income for the period by 365; and (b) multiplying the quotient by the number of days in the period. (3C) Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period. Matters to consider for purposes of subparagraph (1)(b)(ii) (4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to: (a) the nature of the duty of a parent to maintain a child (as stated in section 3); and (b) the proper needs of the child; and (c) the income, earning capacity, property and financial resources of the child; and (d) the income, property and financial resources of each parent who is a party to the proceeding; and (da) the earning capacity of each parent who is a party to

the proceeding; and (e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support: (i) himself or herself; or (ii) any other child or another person that the person has a duty to maintain; and (f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and (g) any hardship that would be caused: (i) to: (A) the child; or (B) the carer entitled to child support; by the making of, or the refusal to make, the order; and

[page 335] (ii) to: (A) the liable parent; or (B) any other child or another person that the liable parent has a duty to support; by the making of, or the refusal to make, the order; and (iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to: (a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and (b) the effect that the making of the order would have on: (i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or (ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support. Proper needs of the child (6) In having regard to the proper needs of the child, the court must have regard to: (a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and (b) any special needs of the child. Income, earning capacity, property and financial resources (7) In having regard to the income, earning capacity, property and financial resources of the child, the court must: (a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and (b) disregard:

(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and (ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit. (7A)In having regard to the income, property and financial resources of a parent of the child, the court must: (a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and

[page 336] (b) disregard: (i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and (ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit. (7B) In having regard to the earning capacity of a parent of the

child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that: (a) one or more of the following applies: (i) the parent does not opportunity to do so;

work

despite

ample

(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged; (iii) the parent has changed his or her occupation, industry or working pattern; and (b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of: (i) the parent’s caring responsibilities; or (ii) the parent’s state of health; and (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child. Direct and indirect costs in providing care (8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.

Subsections not to limit consideration of other matters (9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard. Definition of resident child (10) For the purposes of this section, a child is a resident child of a person only if: (a) the child normally lives with the person, but is not a child of the person; and (b) the person is, or was, for 2 continuous years, a member of a couple; and (c) the other member of the couple is, or was, a parent of the child; and

[page 337] (d) the child is aged under 18; and (e) the child is not a member of a couple; and (f) one or more of the following applies in respect of each parent of the child: (i) the parent has died; (ii) the parent is unable to support the child due to the ill-health of the parent; (iii) the parent is unable to support the child due to the caring responsibilities of the parent; and (g) the court is satisfied that the resident child requires financial assistance.

6.15

The court in Marriage of Gyselman (1991) 15 Fam LR

219; (1992) FLC ¶92-279 held that a three-step process applied when considering whether an order should be made to depart from the administrative assessment: 1.

whether special circumstances for departure in s 117(2) are established;

2.

whether it is ‘just and equitable’ within the meaning of s 117(4); and

3.

whether it is otherwise proper pursuant to s 117(5) to make the order.

See also Marriage of Hides and Hatton (1997) 21 Fam LR 855; FLC ¶92-759. Gyselman and Marriage of Savery (1990) 13 Fam LR 812; FLC ¶92-131 indicate that the circumstances must be such as to set the particular facts of the case apart from the ordinary case. It was held in Marriage of Sheahan (1993) 16 Fam LR 437; FLC ¶92-375 that the relevant facts must be considered to determine whether they will result in injustice or undue hardship if not taken into account. In Marriage of Hides and Hatton, it was held that in determining whether special circumstances exist, all of the circumstances of the case must be considered. The Full Court in Gyselman held that the high costs of enabling contact referred to the commitments of a parent which are necessary to allow contact to take place. While travel expenses are the most obvious example, this section may also refer to accommodation costs where it is appropriate and necessary.

6.16 Section 117(3) indicates that the costs of contact are not high unless the yearly costs are more than 5 per cent of the child support income amount. In Marriage of Houlihan (1991) 14 Fam LR 910; FLC ¶92-248, Kay J applied this rule to the benefit of the liable parent, reducing the child support payable, as he was required to drive 13,000 km per year to exercise contact. It was also held by Kay J in Marriage of Marlow (1995) 18 Fam LR 714; FLC ¶92-588 that the appropriate approach in high contact cost cases is to see to what extent the cost of contact exceeds the 5 per cent referred to as being within nonhigh contact costs, then to see how much the payer needs to have earned in order to meet the excessive contact costs. 6.17 The just and equitable requirement does not simply mean ‘fair’ and it is not limited to the statutory requirements contained in s 117(4): Dwyer and McGuire (1993) 17 Fam LR 42; FLC ¶92-420. While it was held in Dwyer and McGuire that [page 338] when considering whether the just and equitable requirement is satisfied each factor in s 117(4) must be considered, it was held in Marriage of Hides and Hatton (at 861) that in some cases certain factors may be more relevant than others and it may not be necessary to ‘slavishly go through each of the paragraphs’. Nevertheless, it is necessary that the more significant factors in any given cases are considered: Marriage of Hides and Hatton.

There have been a number of approaches taken by the courts in applying the just and equitable requirement; however, they generally fall into two categories: The Mee and Ferguson approach (Marriage of Mee and Ferguson (1986) 10 Fam LR 971; FLC ¶91-716) — balancing the need and the ability to pay. This approach was adopted in Bassingthwaite v Leane (1993) 16 Fam LR 918; FLC ¶92410. Jiggling the child support formula — inserting a new figure for the liable parent’s taxable income, taking into account the expenses as a result of the ‘special circumstances’: Savery. Under this process a decision maker cannot simply rely on the formula calculation in order to determine a just and equitable rate of child support. The child support legislation (as interpreted by the relevant case law) states that a decision maker must have regard to the factors set out in s 117(4) of the CSAA including careful consideration of the capacity of each of the parents to contribute to the needs and costs of the children: Tyagi and Meares (SSAT Appeal) [2008] FMCAfam 886; Dawson and Dawson (SSAT Appeal) [2010] FMCAfam 221. The ‘otherwise proper’ requirement in s 117(5) has been considered to connote an objective test based on public policy considerations. For example, in Marriage of Hall and Rushton (1991) 14 Fam LR 907; FLC ¶92-249, the eligible carer’s reliance on social security was a determinative factor in this regard. But the test does not simply require there to be no impact on the public purse: Marriage of Burke and Elliott (1990) FLC ¶92-161.

Non-parent application for child support 6.18 Where a person is not the parent of a child but cares for that child more than 128 nights per year, that person can apply for a child support assessment. The applicant must not be in a domestic relationship with either the mother or the father of the child and must make the application against both parents.

Inheritance taken into account for child support purposes 6.19 In the matter following the court treated the father’s inheritance as a financial resource and ordered a lump sum to be paid to the applicant mother.

In Beard and Fisher [2013] FCCA 755 Small J considered competing child support applications by the parents of a nineyear-old child. The mother applied for a departure order in respect of all assessments until the child was 18 and an order [page 339] that such support be paid as a lump sum. The mother’s application for a departure order was such that the father would be assessed at $4,500 per year, which was described by the court as a ‘modest increase in the sum set for the previous periods by the SSAT and the CSA’ (at [61]). The father’s response sought leave to appeal a previous

decision of the Social Security Appeals Tribunal out of time (that decision being that the father’s child support income be $62,000 in respect of a child support period prior to 30 June 2011), and a review of a subsequent child support decision (that the father’s child support income be $64,000 after 30 June 2011) (at [103]). Small J noted the legislative order in which these matters would ordinarily need to be determined, saying (at [10]): The parties have agreed to all … applications being heard together despite the provisions of s 123(3) of the [CSAA] which require me to determine any pending applications in relation to assessments more than eighteen months old before I can determine a lump sum application. Referring to Lightfoot and Hampson (1996) FLC ¶92-663, his Honour said (at [11]): … having the consent of the parties, I consider that I can determine the lump sum application before determining the retrospective application and will do so. In providing the background to the case, his Honour said (at [14]–[15]): In 2008, [the father’s] mother died, and in March 2009, he received assets in the form of cash and shares worth in excess of $850,000 by way of inheritance … From the date of separation until the date of trial [the father] paid child support … on an intermittent and ad hoc basis and was often in arrears with those payments. The mother argued under s 117(2)(c) of the CSAA that ‘a departure order ought be made because an administrative assessment based on the respondent’s declared income alone would result in an unjust and inequitable determination of the level of financial support provided by [the father] for [the child]’ (at [28]).

Small J said (at [32]–[38]): On his evidence, [the father] retained at the time of trial some $640,000 of the inheritance received from his mother. In cross-examination he conceded that in addition to the $30,000 of interest income per year, he actually spent some $200,000 of the capital on what might be termed discretionary spending since he came into those monies. On average, that expenditure would amount to roughly $50,000 per year since he received his inheritance in March 2009. His evidence was that he has spent the extra $50,000 per year on holidays, on home renovations and on other discretionary expenditure. His access to funds in those years can therefore be said to have been closer to $80,000 per year than to $30,000. The remaining capital of $640,000 is clearly a financial resource in his hands and constitutes a special circumstance in this case. It is therefore able to be considered when the court is deciding whether to make a departure order under s 117(2)(c)(ia). I note the recent decision of Judge Baker in Archer and Archer [2013] FCCA 226, where Her Honour upheld a decision of the SSAT to consider an inheritance of $161,212.00 as creating a special circumstance. [page 340] [The father] referred me to the case of Cazet and Faulkner [2011] FMCAfam 1157 in support of his argument that he should not be ordered to draw down on his capital for the purposes of paying child support. In that case … Halligan FM … found that he did not

need to decide whether capital sums are to be considered income for the purposes of paying child support. However he did make some ‘observations’ about that issue, and, at paragraph 35, he said: It may be that the level of capital assets compared to actual or imputed income from them, together with any other income, is such that the calculation of a proper level of child support that ensures ‘that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents’ requires that the capital directly influence the quantification of the amount of child support.

This is exactly such a case. [The father] might only have ‘income’ of $30,000 per year, but since he received his inheritance he has had access to that income, plus to capital funds of some $50,000 per year which are a financial resource capable of being taken into account in an application for a departure order. His Honour continued (at [43]): [The father] has not bought a house which he would have to encumber to pay the child support asked of him. He has current cash and shares worth about $640,000 from which to make any ordered payments. The decision in Christian and Donald [[2004] FamCA 1171] is therefore distinguished on its facts. Small J found the s 117(2)(c)(ia) departure ground was established, and after considering the father’s ‘duty to maintain’ the child, the child’s needs, age, the father’s income-earning capacity, financial resources, the hardship to the mother in the event no departure order was made, the lack of hardship that the ‘modest increase’ would cause the father, found it just and equitable to make the departure order sought by the mother (at [44]). His Honour then considered those same issues, saying that the mother ‘has had to take persistent action through the [Child Support Agency] and this court in order to force [the father] to

satisfy his obligations under the Act … it is otherwise proper having regard to the provisions of s 117(5) of the Act for me to exercise my discretion’ and ordered the lump sum sought by the mother (at [99]–[100]). The father’s response was dismissed, the court not being satisfied of the threshold matters in s 112 (as to leave to appeal an SSAT decision out of time) and while the court accepted that there were grounds to depart from the Child Support Agency’s earlier decision (the court having previously accepted that in the special circumstances of the case the father’s income, property and financial resources were greater than he had declared to the Agency), the court held that it was not just and equitable nor proper to make the departure order sought by the father (see from [133]).

See also Matthews and Matthews [2014] FamCAFC 99.

Child-bearing expenses 6.20 In Hampton and Temple [2012] FamCA 681 Benjamin J ordered the father to pay $3,200 for the mother’s childbearing expenses pursuant to s 67B of the [page 341] FLA, calculated as $200 per week for the last four months of the pregnancy when she ceased work on medical advice. The parties appeared in person. In relation to reluctance on the part of the father to pay this sum because of lack of funds, his Honour said (at [14]):

I have had little regard to that on the basis that the father is in good employment. If he has not paid the full amount of child support, as night follows day, the Child Support Agency will follow him and find that money. So if he has not paid it now, he will be paying it later with interest.

Child support mischievously claimed 6.21 Over the last decade there have been some interesting cases where the paying parent discovers they are not the biological parent and seek to have the child support payments refunded. In the following case the payments had been refunded but the father took it further and sought damages.

The matter of Magill v Magill [2006] HCA 51; (2006) CLR 551 received much media attention. The case was brought on the basis that the wife had committed the tort of deceit by representing to the husband that two of their three children were his children. The matter was first heard in November 2001 in the Melbourne County Court. The evidence before the court stated that almost from the beginning of the marriage it was a disaster. Their first child, a son, was born in April 1989. Two further children, a son and daughter, were born in July 1990 and November 1991 respectively. Unknown to the husband, the wife in 1989 had commenced an affair and that man was the father of the two youngest children. In 1992 the marriage came to an end and the wife took the children with her. In November that year, the wife obtained an order for child support in respect of all three children.

It was found that probably in 1995 the husband thought his second son was not his biological child and in 2000, DNA established that neither of the two youngest children were the husband’s. Initially the husband sought the repayment of child support payments. Pursuant to s 143 of the Child Support Assessment Act (1989) (Cth) child support payments made by the husband were adjusted to allow for past overpayments and an extinguishment of arrears. The husband then made a claim for damages against the wife in the County Court. He claimed monetary loss and for his psychiatric disorder suffered as a result of the wife’s conduct. One important matter, alleged by the husband to constitute the deceit, was the wife’s filling in of the two birth notification forms naming the husband as the father, which she gave to him to sign. On 22 November 2002, Hanlon J found that the wife had had no genuine belief that the husband was the father of the two youngest children, or at the very least was reckless as to that belief. An award of $70,000 damages in the husband’s favour was made: $30,000 for general pain and suffering, $35,000 for past economic loss and $5,000 for future economic loss. [page 342] The matter went on appeal and the Court of Appeal held that the husband did not rely sufficiently on the notification forms for the purposes of the law of deceit. It overturned Hanlon J’s award of damages and ordered the husband to pay the wife’s costs. The husband was then granted leave to appeal to the High Court. The matter was heard before Gleeson CJ, Gummow, Kirby, Hayne, Hayden and Crennan JJ. The court unanimously dismissed the appeal. It rejected the wife’s contention that s 119 of the FLA, which permits spouses to sue each other, and s 120,

which abolishes certain actions such as damages for adultery, exclude any action for deceit. However, three members of the court held that no action for deceit could lie for representations about paternity made between spouses, and three members of the court held that, while there could be circumstances in which such an action might succeed, they were exceptional and did not cover the husband’s case.

Parent — sperm donor as a liable parent 6.22 Child support is payable by a biological or adoptive parent of the child. The Child Support Agency cannot accept an application for a child support assessment unless it is satisfied that the liable parent named in the application is a parent of the child. The duty inherent in the common law, now bolstered by legislation, demands caution from men who do women a ‘favour’ in the form of a sperm donation. In the matters following, it is made clear that where a man donates sperm by impregnating the mother by natural means (that is, vaginally) and as a result a child is born, the donor is a parent and liable for child support. This includes circumstances where the mother is in a same-sex relationship and the donor father has an express agreement with the mother that he has no legal rights to the child and is not responsible for the financial support of the child.

ND and BM (2003) 31 Fam LR 22; [2003] FamCA 469, before Kay J, concerned an appeal by a biological father against a

finding that BM (the mother) was declared a person entitled to administrative assessment of child support payable by ND (the father) for the child [PK] born in January 1999. PK was a child of BM and ND conceived by vaginal intercourse. At the time of the conception, BM was in a samesex relationship with LP with whom she underwent a ‘ceremony of marriage’ in March 1998 (at [6]). Evidence was given on behalf of ND that ‘some two weeks after the birth of the child he executed a handwritten agreement at the request of BM and LP that provided he would have no legal rights to the child and that in the event of separation LP would support the child’ (at [9]). It was further stated in evidence (at [11]): Whilst I acknowledge that I am the child’s biological father it was never my intention or the Respondent’s intention that I would be a parent to the child. My role was to be the sperm donor and to represent a male figure in the child’s life. The child was not to know that I was the biological father. I do not believe that the child is aware of my role in his life. It was also agreed I would have no rights nor incur any liabilities in respect of the child. [page 343] His Honour was unconvinced that the financial responsibility in relation to a child under the relevant legislation could be waived by an agreement. In considering the legislation, his Honour said (at [12]): The statutory obligation for child support is contained in the Child Support (Assessment) Act. It provides in s 3: The parents of a child have the primary duty to maintain a child.

And further (at [13]):

In s 4 it says that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. Looking at the facts of this matter and the agreement entered into, the question of the equitable doctrine of estoppel was bound to be raised. Kay J referred (at [24]) to the matter of B v J (1996) FLC ¶92-716 in which Fogarty J spoke of estoppel in relation to child support by saying: It is, in my view, [too] untenable to suggest that an otherwise liable parent may contract out of liability for child support or that an otherwise entitled parent may waive a ‘right’ to assistance for the support of his or her child. It is well established that statutory rights granted to individuals which rest upon wider principles of public policy may not be waived. Kay J referred to Fogarty J again (at [25]): His Honour then cites significant authorities for those, concluding with Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321: The financial support of children is a matter of great public interest. The community as a whole would be adversely affected if a person were permitted to waive a ‘right’ to seek support from a child’s parent.

Kay J also cited an American matter on the issue as to whether or not a child conceived by way of vaginal intercourse could be said to fall within the concept of artificial insemination (as was argued by a man who for 15 years had been having sexual intercourse in ‘the old fashioned way’ yet claimed to be simply a sperm donor of the children born as a result). In finding he was a parent for the purposes of paying child support, the Superior Court of Pennsylvania in Kessler v Wenigar No 491 WDA 99 at [21] declared: Whilst science has enabled all manner of assisted conception, variations of which continue to evolve, we

decline to recognize a category of ‘artificial insemination by intercourse’. Even if the appellant’s role has been, as he suggests, merely that of a man obliging a friend with donations of sperm for 15 years, he cannot avoid his obligation to the child. It matters not when an agreement to forego support occurred, the right to support is the right of the child, not the mother or the father. It cannot be bargained away before conception any more than it can be bargained away after birth, nor can it be extinguished by principles of estoppel. Kay J described the wording of the judgment in Kessler as ‘pithy’, but as amusing as the facts might be there is also a serious message: first, that vaginal intercourse can never be described as artificial insemination; and second, the doctrine of promissory estoppel cannot defeat an obligation under a legislative scheme. Where the donation is not via natural means, however, the donor is not a parent: B and J (1996) 21 Fam LR 186; FLC ¶92-716. Refer also to Carnell and Carnell (2006) FMCAfam 476. For a discussion of the meaning of a parent, for the purposes of the Act, see Chapter 5.

[page 344] The following cases directly relate to the provisions of s 143(3B) of the CSAA.

Forsythe and Latimer [2010] FMCAfam 478, heard by Scarlett FM, involved an application by the father who had made payments over a number of years unaware that he was not the

father of the child at the time that he made payments of child support. The parties were in a relationship from November 1997 until June 1998. They never lived together but the relationship involved sexual intercourse. In December 1997 the mother had a one-night stand. Her child was born in late 1998. At the time of the birth the father’s name was not included on the birth certificate. The father’s name (the applicant) was recorded on the birth certificate on 11 January 2000. Child support was made until October 2002 by private agreement but was then made through the Child Support Agency. In March 2008 the applicant requested a DNA test. A report was not produced until April 2009 and the applicant was excluded as the biological father. The applicant applied to the Federal Magistrates Court (as it then was) seeking a declaration under the CSAA and seeking a repayment order under that Act. The criteria the court needs to take into account are set out at s 143(3B): (a) whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child; (b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar; (c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child; (d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child; (e) the relationship between the payer and the child; (f)

the financial circumstances of the payee and the

payer. A declaration was made that the applicant was not the biological father of the child and that the mother, who received $39,000 in child support paid by the applicant, had to repay the sum of $9,743.30: $3,600.81 within six months of the date of the order and a further $6,142.49 within 18 months of the order. The court reviewed the evidence and the factors required to be considered under s 143(3B) of the CSAA (at [54]–[89]). In summary the court found that the applicant did not act ‘swiftly’ in filing the application for a declaration when he first suspected he was not the biological father; it was unlikely anyone else would pay child support as the mother could not recall who she met the night she became pregnant; the court considered the relationship between the child and the applicant, which had become strained as a result of the outcome of the paternity testing; and it also considered the financial circumstances of the applicant (which were more favourable) compared to that of the mother.

[page 345]

In Levine and Levine [2011] FMCAfam 821 the applicant sought a declaration under s 107 of the CSAA that he should not be assessed for child support as he was not the child’s father and an order under s 143 of the Act that the respondent repay him $13,000 paid by him to the Child Support Agency, and $5,400 that he paid prior to the assessment for the child’s school fees and a Bali holiday, and $695 for the parentage test. He also sought an order for costs in the sum of $6,000 and leave to issue proceedings out of time. The application was 10 months late. The Federal Magistrates Court Rule 25A.06(1) (as it then

was) requires such an application to be made within 56 days of service of notice of an application for administrative assessment. The parties married in 1984, the child was born in 1995 (the applicant being named as father on the child’s birth certificate) and the parties separated in 2009, the child remaining in the mother’s care. In 2010 the father took the child for a DNA test without the mother’s knowledge. The test revealed he was not the biological father of the child. An application was issued and a preliminary order was made for the stay of child support payments under s 111C of the Child Support (Registration and Collection) Act 1988 (Cth). The applicant had always considered the child to be his and it was not until friends started saying the child had no resemblance to him that he became suspicious. Hence the delayed application. The mother argued (at [22]) that he should pay because she had ‘always believed that the applicant was the child’s father. She did not wish to undertake a DNA test because she believed that it would cause the child emotional pain’. Her income was $1,145 weekly, her total expenses $700 weekly and her assets (including superannuation) $114,000. Scarlett FM (at [37]–[45]) discussed the law relevant to a grant of leave to issue out of time, finding that the applicant had ‘provided a satisfactory explanation for the delay’ in applying for a declaration. His Honour was also satisfied that a declaration should be made, saying (at [53]–[55]): Where a child’s parentage is a question in issue, the court may, under s 69V, make an order requiring a person to give material evidence. The court may make a parentage testing order under s 69W. However, the Respondent has refused to consent to such an order. Under subs 69Z(3), the court may draw such inferences from a failure or refusal to consent as appear just in the circumstances.

Clearly, if there were to be a second DNA test, both parents and the child would have to be involved for the test to be any more accurate than the one already conducted. The Respondent’s refusal to consent to such an order means that no further test can be carried out. In my view, the inference that the court can reasonably draw is that a further DNA test would not assist to show any different result from that already shown by the earlier test. The factors required to be considered under s 143(3B) were then examined, Scarlett FM saying (at [61]): It is not unreasonable for the Applicant to have formed the view that he was the father of the child. As the evidence shows that the Applicant is excluded from identification as the father of the child, it is a reasonable inference that the Respondent must have had some idea that the Applicant was not the father. However, the Respondent has [page 346] led no evidence on this issue, and it is not possible to make a finding of fact as to the extent of any reasonable suspicion the Respondent must have had about the child’s paternity. Scarlett FM was not satisfied that the applicant was guilty of any delay in applying (at [71]) nor that child support would be payable by the child’s natural father (at [73]), continuing (at [78]– [79]): From the [14-year-old] child’s point of view, his father (as he thought) has rejected him, for no apparent reason. The Applicant’s desire to find out the truth about the

child’s paternity will result in a financial benefit to him, at the expense of ‘collateral damage’ to the child. One might well ask why, if [X] does not know about the result of the paternity test, the Applicant should not continue to give this child the benefit of his time, support and encouragement. An adult can still have a loving, nurturing relationship with a child even if the adult is not the child’s biological parent. Australian society is full of people who have loving relationships with their stepchildren or adopted children. Scarlett FM next examined the parties’ financial circumstances. Both were employed. The mother’s father was contributing to the child’s school fees. Upon a review of ss 107 and 143 of the CSAA, Scarlett FM held that the court had no jurisdiction to order repayment of the $5,400 paid under a voluntary agreement made prior to the administrative assessment, noting that the applicant may have a civil remedy for recovery of that money (at [99]–[100]). His Honour held that the court did have jurisdiction to require repayment of the $13,000 paid for child support (at [101]) and made that order, payment to be within 12 months. The claim for the cost of the paternity test was dismissed, lacking any basis under s 117(2) of the FLA given that it had been conducted without the mother’s consent. The applicant was, however, awarded costs in the sum of $4,000 payable within four months.

In Radcliffe and Hall [2011] FMCAfam 781 Brown FM ordered the respondent to repay the applicant the sum of $3,730.10 (being child support erroneously collected from him in respect of the child) by way of fortnightly instalments of $15.00, with the first such instalment to be made no later than 31 August 2011 and each fortnight thereafter until the amount was paid in full. The

Child Support Agency was to collect the instalments. The most important consideration in this case was said to be the financial circumstances of the parties. Brown FM stated (at [64]): The most important consideration in this case would appear to be the financial circumstances of the parties. To each of them, $3,700 is a significant sum of money. From Ms Hall’s point of view, I accept that there is no realistic prospect of her raising such a sum, in a lump form, in the short to medium term. From Mr Radcliffe’s perspective, the sum would provide a welcome financial resource for him and his family. Readers are referred to as a resource for not only payers and receivers of child support but also for law students and legal practitioners.

[page 347]

In Jordan and Fielding [2013] FCCA 725 a mother sought a declaration that Mr Fielding was the father of her child under s 106A of the CSAA, the Child Support Registrar having refused to make an assessment on the basis that it was not satisfied that the respondent was the father. The mother’s application was filed in the Federal Circuit Court after the reg 25A.06 deadline of 56 days, so she sought an extension of that deadline pursuant to r 3.05 of the Federal Circuit Court Rules 2001 (Cth) (at [2]). The circumstances in which the mother claimed the respondent was the father of her daughter X were that the parties had a relationship for about one week in January 2012 and had sexual intercourse on one occasion (at [9]). In April 2012 the mother discovered that she was pregnant (at [10]).

During the course of proceedings, paternity testing confirmed that the respondent was the father. Months had passed in the meantime, so the father sought that the court simply make a declaration under s 69VA enabling the mother to seek a new assessment, as opposed to leave being granted which would mean the assessment would commence prior to the mother having commenced proceedings (thereby creating eight months of arrears) (at [6]–[8]). Granting the leave sought by the mother, Terry J cited Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 as being a useful guide when considering whether time should be extended pursuant to r 3.05, describing the thresholds as follows (at [30]): (a) the court should not grant the application unless it is positively satisfied that it is proper to do so and it is a pre-condition to the exercise of discretion that the applicant has furnished an acceptable explanation for delay and that it is fair and equitable in the circumstances to extend time; (b) any action the applicant has taken, apart from applying for the extension of time, is relevant to the question of whether an acceptable explanation of delay has been furnished; (c) any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension; (d) the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; (e) consideration of fairness between the applicant and persons in a like position are relevant to the matter of the exercise of the court’s discretion.

Her Honour then found (at [32]–[33]): The mother provided an acceptable explanation for delay. She sought legal advice reasonably promptly after her application was refused … and when she went to see Legal Aid she was still within time to file a s 106A application. The mother’s application clearly has merit — the father is X’s father — and it will cause the mother hardship if she is not granted the extension of time. She will miss out on the child support to which she would otherwise have been entitled dating back to early October 2012. She is on a Disability Support Pension and is in a poor financial position. [page 348] Her Honour continued (at [35]): The issue in the case is whether the prejudice to the father of granting the extension of time trumps the considerations which favour the mother. Finding that it did not, her Honour found the $9,000 of arrears would not necessarily have to be paid by the father as a lump sum and that the father had, in resisting the mother’s claims, ‘made a contribution to the fact that the arrears [had] reached this point’ (at [41]).

To find out more about child support, refer to: and (viewed 7 May 2017).

Adult child maintenance 6.23 While parental obligation to pay child support generally ceases once children turn 18, there are additional options for adult children pursuing financial support. Section 66L(1) of the FLA provides the circumstances in which an adult child may have a need for financial support after the age of 17 years: to enable the child to complete their education; or because of the child’s mental or physical disability. An order may be made for a 17-year-old child that begins when the child turns 18: s 66L. The order usually stops if the child ceases their education or ceases to have that disability. The person receiving payments must notify the paying parent of the change in circumstances (s 66VA). If any amounts of maintenance have been paid after the adult child becomes ineligible for such support, the payer has a right of recovery of those amounts: Everett and Everett [2014] FamCAFC 152.

In Masterton and Masterton [2012] FMCAfam 913 before Brown FM (as his Honour then was) an application for child maintenance was made against the father by an adult son (Mr M) and his mother. Mr M was a university student in his second year of a combined degree, living at home with his mother and sister (Ms C) and working 40 hours a fortnight in part-time work, earning about $17,000 per annum (spent on running his car, buying clothing, text books, etc). The mother was in poor health and in receipt of a disability support pension. She was not

collecting board from the son (although his youth allowance — to be disregarded under s 66J(3)(b)(ii) FLA — was being paid to her) and she paid the mortgage repayments on the home, all utilities and the living expenses of both children. The father was paying child support for his other child, Ms C, who was also living at home and in her final year of high school. The father had stable full-time [page 349] employment until he arranged with his employer to perform his duties in a ‘job share’ which resulted in his income being reduced in April 2012 from $158,000 to $83,000 per annum. He deposed to degenerative arthritis in his right knee as the reason for his taking up part-time employment. Brown FM said (at [23]– [24]): Ms Masterton puts her application for adult child maintenance for Mr M on the following basis: The proceedings are … for adult child maintenance by the eldest child Mr M for financial support through his tertiary degree from the husband/father and the wife to receive same on the son’s behalf as contribution towards her payment of costs of accommodating and housing the adult son Mr M.

Accordingly, it is clear that Ms Masterton herself seeks the payment of any sum awarded by the court and she will utilise the sum towards maintaining her household, which includes not only herself but also Mr M and Ms C. By necessary implication, Mr M will continue to retain whatever income he receives from his employment for his own exclusive benefit. Brown FM continued (at [41]): Section 66L(1) [FLA] deals with the maintenance of children aged 18 years and over. It reads as follows:

(1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary: (a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child. Brown FM reviewed the relevant authorities, saying (at [44]–[47]): Asche J in Oliver and Oliver [(1977) FLC ¶90-227 at 76,202] described this, in respect of the earlier provision, as being a ‘broad directive’ to the court not to make an adult child maintenance order. This broad directive not to make an adult child maintenance order, he further characterised as being the ‘general rule’. Accordingly, the liability of parents to contribute to the maintenance of their children is generally limited to children under the age of 18 years. In The marriage of H [(1981) 7 Fam LR 451 at 465] Smithers J said as follows: As to children over 18 years this basic duty to contribute to support gives way to an obligation which arises only in certain limited circumstances. Where a child is an adult, he should, as a prima facie principle, support himself. It should not normally be compulsory for a parent to continue to maintain, or contribute to the maintenance of an adult child.

In Gamble and Gamble [(1978) FLC ¶90-452 at 77,304], another case which predates the 1995 amendment, Fogarty J identified two significant features which he deemed to be relevant to the making of an adult child maintenance order. He said as follows: … firstly … the provision of maintenance must be necessary as distinct from being desirable and secondly … there is a distinction to be drawn between the imposition of a legal liability upon a father in such circumstances and the question of whether as between

father and son or daughter the providing of some assistance may be the socially proper thing to do.

[page 350] In Tuck and Tuck [(1981) FLC ¶91-021 at 76,227] the majority of the Full Court (Evatt CJ and Murray J) said that: Necessary in this context means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors.

Brown FM continued (at [64]–[65]): In Cosgrove and Cosgrove [(1996) FLC ¶92-700], Warnick J considered that the following matters were likely to bear upon the exercise of the discretion to make a maintenance order in respect to a child over eighteen years of age: (i)

whether the ‘nexus’ of dependence between the child and parents had ceased and the application amounts to a ‘resurrection’ of that dependence;

(ii)

the period between initial cessation of dependence (if any) and the application;

(iii) whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself; (iv) other assistance, benefits or education which the child has received; (v) the ability of the child to complete the course in question; (vi) the likelihood of the child completing the course in question;

(vii) the financial capacity of the child to maintain himself/herself to the completion of the ‘education’; (viii) the financial circumstances of those persons responsible for support of the child (generally the parents); (ix) the filial relationship between the child and the person from whom maintenance is sought. In this particular case, Mr Masterton points particularly to the lack of a filial relationship between him and Mr M as a reason why the court should not exercise its discretion in favour of Ms Masterton, in this particular case. It is his position that the estrangement between him and Mr M is a longstanding one, which was instigated by Mr M. In these circumstances, by necessary implication, he would characterise it as being hypocritical on Mr M’s part, for him to seek financial succour from him. Brown FM cited contrary authorities on this issue, referring (at [67]) to the preference of Carmody J in Re: AM (Adult Child Maintenance) [(2006) FLC ¶93-262] for the approach of Asche SJ in Oliver and Oliver [(1977) FLC ¶90-227 at 76,203] in which his Honour said: I do not think that it is a necessary element of awarding maintenance that there should be a warm relationship between the parent and the child. During an examination of the evidence of the parties, Brown FM said (at [132]): In my view, the most salient factor in this regard is Mr M’s own income earning capacity. It was ordered that the father pay maintenance of $1,000 per semester to Mr M while he is engaged in undergraduate study for his current university degree.

See also Eakins and Eakins [2013] FCCA 1114; Heath and Yarram [2014] FCCA 1033; Harradine and Harradine [2014] FamCA 188.

[page 351]

Further discussion 1.

What is a parent’s fundamental responsibility in relation to a child?

2.

Why has the Child Support Scheme been attacked as being ‘discriminatory, unreasonable and unfair’?

3.

Is the system of child support unjust to children in circumstances where, for reasons of incapacity or otherwise, a liable parent cannot meet his or her responsibilities?

4.

Where a parent and child have had a long and meaningful relationship, should a declaration be made pursuant to s 107 of the Child Support Assessment Act (1989) (Cth)? Is the social, economic and psychological effect on the child worth it?

[page 353]

7 Spousal Maintenance It is well to give when asked, but it is better to give unasked, through understanding … Kahlil Gibran, The Prophet, William Heinemann, London, 1980

Introduction 7.1 It is a fact of life that the aftermath of a breakdown of a marriage is manifest in reduced financial circumstances for one or both of the spouses. Accordingly, one of the real concerns of marital breakdown is anxiety in relation to financial matters. The question of how each spouse will continue to financially support themselves and their lifestyles may be uppermost in the minds of both rich and poor applicants to the Family Court for spousal maintenance. This is obvious in such matters coming before the Family Court. The amount of money claimed by one applicant to sustain their lifestyle may seem like wealth beyond all expectations by a spouse in more humble financial circumstances. The Family Law Act 1975 (Cth) (FLA)

provides a remedy, but only in certain defined circumstances of the ‘need’ of one party and the ‘capacity’ to alleviate that need by the other. This means where one party to a marriage (whether de jure or de facto) cannot adequately support themselves following a relationship breakdown, they may be entitled to receive spousal maintenance from their former partner or vice versa. Spousal maintenance is financial support paid in circumstances where one party has a confirmed ‘need’ for financial support where they cannot meet their own reasonable expenses from their income or assets, and the other party has the equally confirmed ‘capacity’ to provide financial support to that party. The test of both need and capacity are matters of fact and proof. If an applicant cannot satisfy the evidentiary burden in relation to both, an order for spousal maintenance will not be made. While spousal maintenance is not an automatic right, it is based on a premise that, where a need arises, parties formerly in an intimate relationship have a responsibility to support and maintain each other to the best of their abilities. This responsibility can continue after separation and even after divorce where [page 354] appropriate. A judge has a discretion as to whether to make an order granting spousal maintenance and is guided by matters such as: the age and health of the parties; the parties’ income, property and financial resources;

the parties’ ability to work; what is a suitable standard of living; and if the relationship affected the parties’ ability to earn an income. The power to make an order for spousal maintenance has expanded in a way not contemplated when the FLA first came into being in 1975. Social expectations have changed. The courts may no longer differentiate between married, de facto and same-sex separating couples when it comes to dividing assets and awarding maintenance. On 1 March 2009, new Commonwealth laws for spousal maintenance and the division of property for people in de facto relationships came into force. The FLA now applies to both married and de facto couples as well as same-sex couples. Previously, de facto relationships were covered by state laws and disputes between de facto couples were determined by state courts such as the Supreme Court and County Court. Such disputes are now within the jurisdiction of the Family Court of Australia and the Federal Circuit Court of Australia. An application for spousal maintenance can be filed at any time after separation. This can be when a party decides to separate but still occupies the marital home, at the time of physical separation or at any time afterwards. There are however, time limits. In relation to a de jure marriage the time for making an application must be within one year from the date of divorce. For those parties in a de facto relationship application must be made within two years from the date the relationship ended. Thereafter, an application may only be made with leave of the court. A variation of an order already on foot can be

achieved — or at least applied for — through the Family Court. Spousal maintenance is not automatic, and often is considered as part of an overall settlement of financial matters. It is most likely to be ordered in cases where one party stays at home with the care of young children and is therefore unable to exercise their income earning capacity. Equally you will find cases where one party, usually the woman, has been out of the workforce for a significant period of time involved in rearing a family or is unemployable due to age or unable to work due to illness. These situations result in a disparity of income earning capacities between the parties. Notably the income earning capacity of a party is quite distinct from a party’s income. A party who unilaterally reduces their income, by their own choice, perhaps in an attempt to avoid spousal maintenance obligations, will be deemed to earn a higher income because of their income earning capacity. A party cannot simply ‘sit on their hands’; they must exercise their income earning capacity to its full extent. In determining the amount of spousal maintenance the court will give consideration to a standard of living that is reasonable in all the circumstances. Here, ‘reasonable’ does not necessarily mean the standard of living that the [page 355] applicant led prior to the breakdown of the relationship. The framework to be applied in determining spousal maintenance is set out in Kajewski and Kajewski (1978) FLC ¶90-471. For a

discussion of this matter see Sadlier and Sadlier [2015] FamCAFC 130 at [35]. 7.2 Of the many aspects of family law discussed in these chapters the principles of spousal maintenance have undergone the least changes. An exception is the jurisdiction the Family Court now has to deal with bankruptcy of an applicant or respondent seeking a remedy with regard to an order for spousal maintenance (below at 7.3–7.6). For the purposes of this chapter, maintenance should be described as financial support provided by one spouse to the other for his or her general upkeep, or that of their children. In this chapter we discuss the maintenance of a husband or wife. Spousal maintenance in relation to de facto couples is dealt with in Chapter 9 while the maintenance (child support) in relation to children is dealt with in Chapter 6. Spousal maintenance is commonly thought of as payments of money on a regular basis over a period of time. In some circumstances, however, it may be provided in a lump sum, or by the transfer of an interest in property, over and above the amount ordered by way of a property settlement. A pivotal feature is that, unless ordered to be paid in one lump sum, spousal maintenance may increase or decrease according to the need of the person to be maintained, and the financial ability of the person paying the maintenance. Financial need by one spouse and ability to alleviate that need by the other spouse is a vital theme throughout this chapter: Weiss and Weiss (SC(NSW), Allen J, 1 December 1971, unreported) referred to in Marriage of Taylor (1977) 3 Fam LR 11,220; FLC ¶90-226 at 76,195; Marriage of Branchflower (1979) 6 Fam LR 188; (1980) FLC ¶90-857; Duke and Duke [2009] FamCAFC 174; Hall v Hall [2016] HCA

23; see also Rafter and Rafter [2013] FamCAFC 158 in which the husband unsuccessfully argued that despite the admitted need of the wife he did not have the ability to pay spousal maintenance. In the following matter an application by the wife for spousal maintenance to be paid by the husband was dismissed for lack of essential evidence as to the inability of the wife to support herself.

In Gaertner and Frubink [2017] FamCA 152 before Gill J the husband had the ‘capacity’ to provide the wife with $800 per week to alleviate her ‘need’. Gill J, however, did not make an order in favour of the wife. There was no fault found with the expenses of the wife. Rather it was a lack of detail in the affidavit in relation to the efforts made to find employment. In addition the husband argued that the wife was seeking work only which paid $90 per hour whereas formerly she had been satisfied with $75 per hour and therefore had a wider range of employment opportunities. Gill J stated (at [12]–[13]): In order to obtain a maintenance order, the onus is on the applicant to prove an inability to support herself adequately. Here there is evidence of unemployment, and evidence of attempts to secure employment. While the wife asserts that she has been actively seeking employment, the specific examples given are, as far as it can be determined, [page 356] significantly above her previous pay level. The evidence does not show any search for, or inquiries made, or

attempts to obtain work at the previous level. There is no evidence as to a lack of positions at the previous level. This is a significant gap in the evidence led by the wife. It means that I am not satisfied that the wife at present has an inability to adequately support herself. This means that the application for maintenance fails.

The four-step process in making an order 7.3 The assessment of whether an order should be made can be approached as a four-step process: 1.

To what extent can the applicant support him/herself?

2.

What are the applicant’s reasonable needs?

3.

What capacity does the respondent have to meet an order?

4.

If steps 1–3 favour the applicant, what order is reasonable having regard to s 75(2)?

In previous chapters important amendments to the FLA have been discussed. It appears to be the nature of family law to undergo frequent change. Until quite recent times spousal maintenance legislation had been one area to withstand such change. The usual reasons for the amending of legislation is to render greater efficiency in applying that legislation, but also to aid a court in the acquisition of further jurisdictional power. Over the years the Family Court, through amendments to the FLA, has gained jurisdictional powers in areas unthinkable in 1975 when the FLA first came into being. Recently the Family Court gained extensive

jurisdiction in an area of law usually considered the province of the federal commercial courts — bankruptcy. 7.4 In applications for spousal maintenance and settlement of property under the FLA it is not unusual for a party in a matter to be subject to the strictures of bankruptcy. Prior to 2005 the effect of this was twofold. The Family Court was unable to make orders in the absence of property or financial resources and the rights of the non-bankrupt party were frustrated. In order to cure these ills legislation was enacted to give the Family Court considerably more power in relation to applications for spousal maintenance and division of property (see Chapter 8). It is now clear that vested bankruptcy property can be made available to a nonbankrupt spouse through a spousal maintenance order, or in circumstances of immediate need an order for urgent or interim spousal maintenance.

Amending legislation 7.5 This has occurred through an Act amending the FLA and the Bankruptcy Act 1966 (Cth), which authorises amendments to the Family Law Rules 2004. The changes in the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) (Amending Act) relating to the interaction between family law and [page 357]

bankruptcy came into effect on 19 September 2005. The amendments made by the Amending Act enable concurrent bankruptcy and family law financial proceedings to be brought together in a court exercising family law jurisdiction. This is achieved by giving the court additional jurisdiction to deal with bankruptcy matters that run concurrently with family law financial proceedings and by facilitating the involvement of the trustee and creditors in those proceedings. The impetus for these quite dramatic changes was to ensure that all the issues are dealt with at the same time and in the same forum, and to clarify the competing rights and interests of the creditors and non-bankrupt spouse where bankruptcy and family law issues are present.

Matrimonial causes 7.6 Prior to the introduction of the Amending Act, the Family Court had legislative jurisdiction derived from the Commonwealth Constitution in relation to matters that arose out of a ‘matrimonial cause’, that is, proceedings between parties to a marriage. Therefore an application for spousal maintenance was between a husband and wife only. As a result of the Amending Act, the definition of ‘matrimonial cause’ in s 4(1) of the FLA has now been expanded to include proceedings between a non-bankrupt spouse and a trustee in bankruptcy in relation to spousal maintenance. The amended s 4(1) now reflects the additional power of the Family Court in relation to a matrimonial cause and spousal maintenance: ‘matrimonial cause’ means: …

(c)

proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or

(caa) proceedings between: (i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to the maintenance of the first-mentioned party; …

Despite these amendments, the law in relation to spousal maintenance is well settled. Recent cases involving the bankruptcy of one spouse have not changed the thrust of the law. They reinforce time-honoured approaches and, as with much of family law decision making, reflect the scope of discretion available to the courts to accommodate the facts of individual cases. The need of one spouse, balanced by the ability of the other spouse to meet that need, is still the defining aspect of the relevant legislation. This principle cannot be overstated.

Application to the Family Court 7.7 There is considerable flexibility in the circumstance in which a spouse may seek an order for maintenance. Proceedings may be instituted: (a) before divorce — the entitlement of a spouse to maintenance does not rest upon separation: Marriage of Eliades (1980) 6 Fam LR 916; (1981) FLC ¶91-022;

[page 358] (b) after divorce, but subject to leave after 12 months (s 44(3)); and (c) even though the parties’ marriage is void (s 71). The fact of the marriage itself gives rise to the obligation to pay spousal maintenance: Marriage of Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051. This obligation applies equally to the husband and the wife. In reality, however, it is almost always the wife who is in receipt of maintenance. This is despite quite enormous sociological changes affecting the lives of women for several decades.

In Marriage of Waters and Jurek (1995) 20 Fam LR 190 at 199– 200; FLC ¶92-635 at 82,379, Fogarty J stated: In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests — as individuals and as a partnership. The partners make different contributions to the marriage … On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end. … However, the world outside the marriage does not recognise some of the activities that within the marriage used to be regarded as valuable contributions … Post-separation, the party who had assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities. Often, opportunities are no longer open …

Overview of the legislation 7.8 Spousal maintenance issues only applied to people who are or were married until the inclusion in the FLA of Pt VIIIAB — Financial matters relating to de facto relationships (see Chapter 9). A ‘spouse’ is a husband or wife and does not, under Pt VIII of the FLA, include de facto partners. Spousal maintenance is the payment of maintenance to a husband or wife by a wife or husband. The relevant law is contained in Pt VIII of the FLA. It sets out the circumstances in which one spouse must pay maintenance to the other spouse. The key sections and matters with which they deal follow. The effect of ss 72, 74 and 75 is that maintenance is a remedy available to parties to a marriage, whether the marriage is on foot or not, whereby if a party to the marriage is unable to adequately support himself or herself from their own resources for any adequate reason, a court can order the other party to provide that support to the extent of the reasonable capacity of that person to do so. In relation to the application of ss 72 and 74 the legislation requires reference to the matters set out in s 75(2). Section 77 deals with urgent maintenance. Section 81 imposes a duty on the court to, whenever practicable, bring financial matters between the parties to an end. Section 82 deals with the circumstances under which an order will terminate. Section 83 deals with the matters taken into account in relation to a variation of a maintenance order. 7.9

Section 72 of the FLA is the starting point in an

application for maintenance. The demands of that section must be satisfied before the court considers any [page 359] additional matter or the provisions of any other section. There can be no liability to pay maintenance unless the need of the applicant is first established, that is, that the applicant is ‘unable to support her or himself adequately’. The onus of establishing a need is on the applicant. If the applicant cannot establish an inability to support himself or herself adequately, an order for maintenance cannot and will not be made. In Gaertner and Frubink [2017] FamCA152, although the husband had the ability to pay the wife the $800 per week she had sought, the application by the wife was dismissed. Gill J was critical of the lack of evidence produced by the wife and found that she had not satisfied the demands of s 72. Contrast George and Butler [2015] FCCA 2154; Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601. The credo explicit in the giving and receipt of spousal maintenance is need by one spouse and the ability of the other spouse to supply that need. Despite this long-settled principle under the FLA with regard to spousal maintenance, the Family Court deals daily in cases in which one party has need but the other party has no ability to pay or where one party has the ability to pay but the other has not proved a need. In one such matter, however, an applicant seeking spousal maintenance was not satisfied with the ruling of the lower courts and determined to have a claim tested before the High Court of Australia. In Hall v Hall [2016] HCA 23

(below) we will look at the manner in which the High Court dealt with the circumstances before it.

Adequacy to support oneself 7.10 As we examine the matters that have come before the court, the significant discrepancy between what is adequate for one applicant spouse and another of lesser means is very marked indeed. It can be stated with confidence that matters before the Family Court are a reflection of society. This is so whether an applicant belongs to the rich, less affluent or almost penniless socioeconomic group. Nevertheless, whatever the apparent financial position of a party, the court procedure follows the same path. The Family Court will examine the assets, income and expenditure of the applicant in order to assess whether the applicant’s reasonable needs and expenditure exceed the income available for his or her support. In deciding whether an applicant can support themselves adequately, the standard of living to which a party was accustomed is a matter to which the court must refer in determining whether a figure is adequate or not: Marriage of Koch (1977) 3 Fam LN N66; FLC ¶90-312; Marriage of Biddulph (1977) FLC ¶90-243; Marriage of Corner (1978) 4 Fam LN N1; FLC ¶90-438; Marriage of Brady (1978) 4 Fam LN N54; FLC ¶90-513. See also Strahan and Strahan [2013] FamCAFC 203 in which the wife sought, without success, to appeal against an order granting her $26,021.00 per calendar month by way of spousal maintenance. The basis of the appeal was the assertion that the inadequacy of such an amount resulted in a deterioration of her social standing and cultural life in disregard of the fact that the

husband continued to maintain his lifestyle while having the benefit of the matrimonial assets (at [74]). Waste of property, or deliberate worsening by a party of his or her financial position, may also be taken into account: Marriage of Browne and Green (1999) 25 Fam LR 482. [page 360]

The matter of Hall v Hall [2016] HCA 23 (‘Hall’) before French CJ, Gagaler, Keane, Nettle and Gordon JJ concerned an appeal to the High Court from orders made in the Full Court of the Family Court discharging an order of Dawe J by which the husband was obliged to pay the wife in excess of $10,833 per month as interim maintenance. Of particular importance in this matter was an examination by the High Court of words and phrases having a bearing on the outcome for the parties: ‘financial resources’, ‘source of financial support’ and ‘support himself or herself adequately’. Although in this matter the High Court was making a decision in relation to huge sums of money, the words are equally applicable to every hearing on an application for maintenance. All paragraph numbers refer to the hearing before the High Court. The following paragraph from Hall indicates those circumstances of which the court must be satisfied before making an order for spousal maintenance. It also, in effect, establishes the evidentiary burden to be satisfied by an applicant and respondent involving spousal maintenance. The High Court said (at [5]) A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those

matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as ‘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’. They also include, by virtue of s 75(2)(o), ‘any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’. The applicant wife was a medical practitioner born in 1972. The respondent husband, a property developer, was born in 1952. The husband and wife were married in 2001. There are two children of the marriage. The parties separated in late 2013. The wife commenced proceedings against the husband by filing an initiating application in the Family Court on 2 October 2013. Three weeks later by an amended application the wife covered the gamut by seeking an order for permanent, urgent and interim spousal maintenance. The wife’s application for an interim spousal maintenance order was heard on 9 December 2013 and determined the next day by the primary judge Dawe J (see Hall and Hall (No 3) [2013) FamCA 975). Dawe J ordered that the husband pay maintenance to the wife in the sum of $10,833 per month pending the final determination of the proceedings. Subsequently the husband received information with regard to income to which the wife would have a claim under the will of her late father who died in 2009. The husband again appeared before Dawe J relying on new evidence of the father’s ‘wishes’ that his daughter receive a lump sum of $16,500,000 from ‘the Group’ (a large business enterprise) in the event of her divorce from her husband and that she receive a sum of $150,000 annually until the date of the lump sum payment. The wife argued that she had not received any annual payment from the Group and, on this basis, the judge dismissed the husband’s application. The husband appealed the decision to the Full Court of the

Family Court arguing that the primary judge had failed to consider all the necessary evidence before her in her decision to not discharge the order. The Full Court considered the matter and found that despite the voluntary nature of the payment from the Group, the [page 361] brothers would have made the annual payment to their sister if she had requested it. To this end, the Full Court found in favour of the husband and discharged the order. The husband successfully challenged that order in the Full Court of the Family Court before Thackray, Strickland and Aldridge JJ on the basis that the primary judge had erred in failing to take into account evidence that the wife was able to seek the $150,000 per year payment. The Full Family Court held that it could infer that this was likely to be paid if requested, and discharged the interim order on the basis that the wife had not met the conditions in s 72. Strickland and Aldridge JJ discharged the order of Dawe J. The applicant wife sought leave to appeal that decision to the High Court and was successful. The wife’s claim before the High Court included urgent, interim and permanent spousal maintenance. The respondent husband opposed the application. The matter unfolded in the High Court with their Honours’ consideration of the essential provisions of the FLA which must be followed in reaching that essential balance between the need of one spouse and the ability of the other spouse to meet that need. With great thoroughness the High Court set out all the essential elements of a spousal maintenance application, the most important of which follows (at [3]–[5]):

Part VIII of the Family Law Act governs, amongst other things, spousal maintenance. The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides 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 … having regard to any relevant matter referred to in [s] 75(2)’. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, ‘[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part’. A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as ‘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’. They also include, by virtue of s 75(2)(o), ‘any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’. The High Court was also at pains to consider an order discharging the payment of spousal maintenance by stating (at [10]): It was again established at an early stage in the history of the Family Court that an applicant for discharge of a maintenance order can seek to satisfy the court that the party in receipt of maintenance does not meet the threshold requirement of s 72(1),

but that the requirement of s 83(1)(c) that there be ‘just cause for so doing’ imports a need for the court to be satisfied of circumstances which justify the court considering that threshold requirement again. It was to the evidence of the wife’s ability to support herself that was highlighted in this appeal. The wife’s financial statement disclosed she had an interest in the estate of her late father, the value of which was not known to her. The wife explained in her affidavit that her father died in 2009, that she never had an active role in the family [page 362] business he started, that she did not have a copy of the will and did not know the particulars of her father’s estate. The business was run through a corporate structure controlled by her brothers. In her reasons, the primary judge explained that the wife’s lack of knowledge about her late father’s estate meant no such interest could be taken into account as a financial resource of the wife in determining the interim order. The primary judge further explained she was satisfied on the evidence that the wife had a need for spousal maintenance, and the husband had an ability to pay. The husband subsequently obtained greater information in relation to the wife’s late father’s will. All the shares in companies within the Group held by the father were held indirectly or directly by the wife’s brothers. The only clause of the will referring to the wife expressed the father’s wish that the wife should receive from the Group a lump sum payment of $16,500,000 on the first to occur of a number of specified events, with one event being that the wife be divorced from the husband. The clause went on to express the father’s wish that

the wife should also receive from the Group an annual payment of $150,000 until she received the lump sum. The husband filed an application for discharge of the interim spousal maintenance order. The wife in turn filed an affidavit deposing she had no knowledge of the will until she spoke to one of her brothers, and that she had not received any income or payment from her father’s estate. At the hearing before the Full Court, the wife produced further evidence including a letter from her brother who was the executor of the will. The letter explained that neither the annual payment of $150,000 nor the payment of $16,500,000 were to be paid to the wife out of the estate and, as executor, he had no obligation to her in respect of those amounts. The letter also provided that any voluntary payment by the Group was a matter for the Group and its directors, not the estate. The judgment of the Full Court was delivered nine months later. The Full Court found that the primary judge erred in failing to consider or make any finding as to whether there was sufficient new evidence to discharge the interim spousal maintenance order. The Full Court found that there was evidence before the court to demonstrate that the wife was able to support herself adequately. The Full Court set aside the order of the primary judge dismissing the husband’s application and, in its place, ordered that the interim spousal maintenance order be discharged. The wife appealed to the High Court on two grounds: failure of process, and errors of substantive reasoning. The failure of process ground was that the wife’s ability to request the Group to make a voluntary annual payment to her was not raised by the husband on appeal or at first instance. The errors of substantive reasoning ground included that it was not open on the evidence to infer that the voluntary annual payment would have been made to her if she had requested that payment; and even if the voluntary annual payment would have been made to her if

requested, that fact could not constitute a proper basis for concluding that she was not unable to support herself adequately within the meaning of s 72(1). The appeal was dismissed. French CJ, Gageler, Keane and Nettle JJ said: The Full Court’s finding that the wife would have received the annual payment of $150,000 from the Group if she had asked her brothers was well open on the evidence. [at [45]] [page 363] True it is that the wife had not received any payment from the time of their father’s death. The reasons for that were wholly unexplored in the evidence. That evidentiary gap was within the power of the wife to fill. It was within the power of the wife to lead evidence to provide some explanation. Again, her failure to do so allows the inference to be drawn that such explanation as she was able to provide would not have assisted her case. [at [48]] The Full Court’s finding that the wife would have received the annual payment of $150,000 from the Group if she had asked her brothers for that payment led directly to the Full Court’s conclusion that just cause had been shown for the discharge of the interim spousal maintenance order, on the basis that the evidence demonstrated that the wife was able to support herself adequately and that the threshold requirement of s 72(1) therefore was not met. [at [49]] The burden of the wife’s challenge is to the conclusion that the Full Court’s finding that the wife would have received the annual payment from the Group if she had

asked her brothers for it was not of a fact which fell within any of the matters referred to in s 75(2), relevantly in either s 75(2)(b) or s 75(2)(o), with the consequence that the fact found was incapable of being factored into the s 72(1) analysis. That aspect of the challenge must also be rejected. The finding was of a matter within both s 75(2)(b) and s 75(2)(o). [at [51]] Because it bore centrally on the ability of the wife to support herself adequately, the availability to the wife of the annual payment from the Group was also a fact or circumstance in respect of which it was open to the Family Court to form the opinion that the justice of the case required that it be taken into account. The analysis of the Full Court shows that it formed that opinion. There was thus, in addition to a matter within s 75(2)(b), a matter within s 75(2)(o). [at [58]] Gordon J (dissenting) said: [T]he Full Court did not take into account the totality of the evidence, much of which did not support the inference being drawn, and, further and in any event, made a number of presumptions unsupported by the evidence in drawing that inference and making that finding. [at [71]] The brothers’ conduct since the father’s death in relation to the will did not support a finding that the brothers would have caused the V Group to make a payment to the wife if requested. On the contrary, their conduct suggested an unwillingness to disclose the contents of the will to the wife and an unwillingness to comply with their father’s stated wish in relation to the wife, their sister. In this respect, the wife’s position stands in stark contrast to the position of a beneficiary of a discretionary trust who has no control over the trustee but has a reasonable expectation, by reference to past

distributions, that the trustee’s discretion will be exercised in their favour. [at [76]] [T]he inference and finding were not open ‘from the evidence’. The inference and finding were the sole basis for the Full Court concluding that the wife was able to support herself adequately. Consistent with authority, the ‘financial resources of each of the parties’ are not confined to the present legal entitlements of the parties and extend to include ‘a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency’. However, it cannot be said that the father’s wish (for an annual payment to the wife, which had not been effected by the brothers or the V Group in the more than four years since the father’s death) was a source of financial support which, if the wife requested, the wife could reasonably expect would be available to her to supply a financial need. [page 364] Her father (by the will) asked that an annual payment be made to the wife, but it had not been made. The wife had no right to a payment. Why would the wife asking for a payment be more pressing and persuasive than her late father’s formally recorded wish? In the face of unwillingness by the brothers even to provide the will to the wife, there is no basis to infer that the wife’s request would probably tip the balance. [at [90]–[92]]

Making an application

7.11 It is not necessary for the parties to be divorced or engaged in proceedings for divorce: s 4(1)(c). It is, however, usually the case that the spouses will have separated, but it is possible for a maintenance application to be made while the husband and wife are still living together. The finding that a marriage is void does not prevent an application being brought for maintenance: s 71. A time limit applies for the institution of maintenance proceedings where a divorce order is made, or a decree of nullity of marriage has been made: s 44(3). In these cases the maintenance application must be instituted within 12 months of the divorce order being granted or the nullity decree being made. If the 12-month period has elapsed, an application for spousal maintenance may be brought only with the permission of the court in which the proceedings are to be instituted: s 44(3). Such leave will only be granted where a failure to do so would cause hardship to an applicant spouse or a child of the marriage. Leave will also be granted if it can be shown that the circumstances of the applicant are such that he or she is unable to support himself or herself without an income-tested pension, allowance or benefit: s 44(4)(b). Proceedings can only be commenced during the lifetime of the other spouse. Further, such proceedings may only be commenced if at the date on which the application is filed, either party to the marriage is an Australian citizen, or is ordinarily resident in Australia, or is present in Australia, under s 39(4)(a) of the FLA.

The pivotal section 7.12

Section 72 (Right of spouse to maintenance) provides:

(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).

[page 365] Significantly, s 72(2) of the FLA has been amended so as to create a right of the non-bankrupt spouse to claim spousal maintenance against the bankruptcy trustee by providing: The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

Accordingly, a non-bankrupt spouse who is unable to make a contribution-based claim to vested bankruptcy property may achieve a result by seeking maintenance with a view to having a periodical or lump sum order satisfied by way of vested bankruptcy property. This addition to s 72 may create many additional applications for spousal maintenance in

situations where in the past little in the way of remedy was available to a non-bankrupt spouse.

Principles relating to an order for spousal maintenance 7.13 In Marriage of Bevan (1993) 19 Fam LR 35 at 42; (1995) FLC ¶92-600 the Full Court stated: [W]e would state the law as being that an award of spousal maintenance requires: (1) a threshold finding under s 72; (2) consideration of s 74 and s 75(2); (3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and (4) discretion exercised in accordance with the provisions of s 74, with ‘reasonableness in the circumstances’ as the guiding principle.

The threshold test 7.14 In order for an applicant’s claim for spousal maintenance to be successful, certain criteria must be met. Put simply, the person seeking the support must show that he or she is in need of such support. In addition, it must be shown that the person being asked to provide the support is able to do so. This is commonly referred to as the threshold test. The threshold test is contained in s 72 of the FLA. Spousal maintenance decisions, in simple terms, are based

in the main, but not exclusively, on the following factors: length of the marriage; standard of living during the marriage; income of both parties; living expenses of both parties; age of both parties; property apportioned to each spouse by virtue of FLA s 79; [page 366] education and employability of the spouse seeking maintenance; and any disability status affecting employability. Before proceeding, it is important that we consider the terminology used in s 72, and the importance of satisfying the tests laid down in that section.

In the matter of Budding and Budding [2009] FamCAFC 165, in a decision of O’Ryan J heard in the Appellate Jurisdiction of the Family Court, his Honour spent a great deal of time discussing the principles applicable to a grant of spousal maintenance. In doing so his Honour examined in depth various prior judgments — including his own — which he considered relevant. His Honour stated (at [28]): As to spouse maintenance applications the relevant

provisions of the Act are ss 72, 74 and 75. In Brown and Brown [2005] FamCA 1165 I said [at [275]–[281]]: Section 74 of the Family Law Act, which has been described as the basal provision in the Act in relation to spouse maintenance, provides: In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part. See Mitchell and Mitchell (1995) FLC ¶92-601 at 81,994. Section 72 of the Act provides: A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2). Section 75(1) of the Act provides: In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in sub-section (2). Section 75(2) sets out matters which the Court should take into account. There is then s 80 of the Act which sets out a number of types of orders the Court may make in exercising its powers under Part VIII. The expression party to a marriage in s 72 is defined in s 4(2) of the Act to include a reference to a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere, or that has been terminated by the death of one party to the marriage. The potential liability for spousal maintenance lasts for the joint lives of the parties. This potential liability is of course subject to s 44(3) of the Act which, as happened in this case, is not insurmountable. Section 72 thus establishes a threshold question before the power in s 74 may be exercised: Mitchell at 81,995.

[page 367]

The liability of one spouse to maintain the other, and thus the corresponding right of a spouse to be maintained by his or her partner depends upon two conditions being satisfied. The first is that one spouse is unable to support himself or herself adequately for one of the stated reasons having regard to any relevant matters in s 75(2) of the Act. The second is that the other spouse be reasonably able to maintain the former spouse. Unless both of these conditions are satisfied there is no maintenance liability between spouses.

See also M and M (2006) 36 Fam LR 97; Harper and Harper [2013] FamCA 202.

7.15 Section 72 specifically mentions that one party is ‘liable to maintain the other party’. In assessing liability to pay, the court may look at the party’s ability in quite broad terms. In other words, the court is not limited to considering the potential payer’s actual income, but may also consider his or her assets and other resources, overall economic position and his or her potential earning capacity. It is important to note that liability arises only in the circumstances of the ‘inability of the other party to support himself or herself adequately’. The test of ability to support oneself is not the same as the test of whether one is in need, but refers to whether a party can generate funds from his or her own resources or earning capacity to supply his or her needs. This is illustrated in the following cases.

In Marriage of Eliades (1981) 6 Fam LR 916 at 917; FLC ¶91-022, Nygh J stated: The test of ability to support oneself is not identical to the test of whether one is in need but means whether the applicant is in a position to finance himself or herself

from his or her own resources. That is to say, the test is whether by reason of earning capacity, by reason of capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself or himself.

In Nolan and Nolan [2012] FamCA 967 the wife made an application for spousal maintenance. Despite working part-time only, the wife received $3,385 per week from her employment and child support from the husband. The husband was the beneficial owner of shares in a company which would make available $590,000 per annum if the husband drew on it. Rees J needed to consider whether or not the wife was able to meet the test prescribed in s 72 of the FLA: that is, whether she was able to support herself from the income which she had available. The wife claimed her expenses were on a fixed basis of $2,034 per week and those expenses were not challenged by the husband. The wife’s discretionary expenses were $1,201 per week, again not challenged by the husband. Rees J held the wife had income of $3,385 a week and total expenses of $3,235 a week and did not meet the threshold test in relation to spousal maintenance. [page 368] See Strahan and Strahan [2009] FamCAFC 166; Drysdale and Drysdale [2011] FamCAFC 85; and Lambton and Lambton [2017] FamCA 73 in which the respondent husband unusually agreed that the applicant wife had a need for $1,361 spousal maintenance per week for a period of three months. Contrast Millhouse and Mullins (No 2) [2017] FamCA 230.

7.16 ‘Adequate self-support’, therefore, refers not to any notion of bare necessity, but rather to a standard of living that is reasonable in all the circumstances. This has been made clear in many cases, but particularly so in the following matter.

In Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601, the parties were married for 27 years. The wife was a registered nurse, and the husband a barrister. After the birth of her two children, the wife did not again work full time in her profession, although she obtained some part-time employment. After the parties separated, the husband had a very substantial income, while the wife’s was quite modest. In an application for a property settlement and spousal maintenance, the trial judge awarded the wife 90 per cent of the small amount of property, but dismissed her claim for spousal maintenance, holding that she had not met the requirements of s 72 because, amongst other matters, she had not made sufficient efforts to obtain further employment. The wife appealed. The Full Court allowed the wife’s appeal against the dismissal of her maintenance application and ordered that the matter be reheard. In discussing the level of support that may be regarded as ‘adequate’, the Full Court stated (at 59): … 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 … Nor is that question to be determined at a ‘subsistence’ level … Further light was shed by the court when citing Marriage of

Nutting (1978) 4 Fam LN N7 at 59; FLC ¶90-410, where Lindenmayer J stated: By s 72 of the Act, the husband is liable to maintain the wife only to the extent that she is incapable of supporting herself adequately, and again ‘adequately’ imports a standard of living which is reasonable in the circumstance that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them. See also Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600.

The correlation between the inability of one party to support herself or himself and the resources of the other party to meet any shortfall is absolute. Bondelmonte and Bondelmonte [2014] FamCAFC 29 concerned an appeal to the Full Court of the Family Court by the husband against the order in the lower court by Fowler J. [page 369] The orders stated that he pay the wife interim spousal maintenance, child support and costs to cover the children’s school fees, private health cover, school books and extracurricular activities. In total this amounted to $16,618 per month or approximately $200,000 per year. The husband claimed that he did not have sufficient income to cover his own expenses and therefore could not meet the need of the wife for spousal maintenance. On the evidence of the husband his weekly income was $3,365 and his expenditure was $4,437.

Although the Full Court did not conduct a hearing de novo, the husband’s appeal was allowed and the matter sent back to the Family Court for a re-determination.

Care and control of a child of the marriage: s 72(a) 7.17 The applicant may be unable to support himself or herself adequately because he or she has the care of children. The age of the child, the number of children and any special needs of a particular child will be relevant. The applicant’s ability to obtain suitable child-minding facilities will also be relevant. The ordinary meaning of the expression ‘child of a marriage’ is a child born to a husband and wife. It is, however, now well established that as an Australian legal expression, ‘child of the marriage’ also covers any child who was born to a husband and wife before their marriage, and any child who has been adopted by a husband and wife. In light of the fact that in Australia the subsequent marriage of a child’s parents automatically legitimates the child, the ordinary legal meaning of the expression ‘child of the marriage’ in reality covers any natural child of a husband and wife, whether born before or after marriage, and any child who is adopted by a husband and wife: s 60F FLA. Under s 60H of the FLA, if a child was born as a result of artificial conception procedures while the woman was married to a man and the procedure was carried out with their consent, that child is a child of the marriage.

In Halley and Halley [2011] FMCAfam 296 at [95]–[100] a spousal maintenance application by the mother of a child born in 2006 was determined by Scarlett FM as follows: On the question of spousal maintenance, subsection 72(1) of the [Family Law] Act requires the applicant to establish that she has a need for spousal maintenance; she must show that she is unable to support herself adequately for one of the reasons shown in the subsection. In my view, the relevant factors under s 75(2) are: a.

The father was born [in] 1977. He is 33 years old. He appears to be in good health.

b.

The mother was born [in] 1977. She is 33 years old. She appears to be in good health.

c.

The father has given evidence of an average weekly income of $1100.00. The mother has given evidence in her Financial Statement of a weekly income of $1120.00. [page 370]

d.

The child of the marriage, [Z], born [in] 2006, lives with the mother.

e.

The mother has her three children from her previous marriage living with her and she has a responsibility to support them. Those children are aged ten, eleven and twelve years and attend school. Their father has been assessed to pay child support in the sum of $500.00 per week.

f.

Neither party has re-partnered. The father has moved back in to live with his mother.

g.

The father has been assessed to pay child support for [Z]. There is no issue between the parties that he has been paying the mother the sum of $140.00, which is slightly above the assessed amount.

The father has submitted that the mother is fit and able to work full time and the parties’ incomes are virtually equal. In my view, the difference between them is that the mother is the child’s primary caregiver and bears the general expenses of his upkeep. She deposes that she is struggling to make ends meet and cannot obtain permanent employment because [Z] is still below school age. The mother will therefore be at a disadvantage in obtaining employment until [Z] starts attending school, at which time she will have more time available to her to work. She has therefore demonstrated a need for maintenance until [Z] starts school. The father gives his expenditure as $866.00 per week and his income as $1100.00. He therefore has some capacity to pay maintenance. I consider it proper to make an order that the father pay to the mother by way of spousal maintenance the sum of $120.00 until the child starts school or attains the age of 6 years, whichever shall first occur. See also Isbister and Isbister [2013] FCCA 475.

The power of the Family Court to make orders for spousal maintenance 7.18

Section 74 of the FLA provides:

Power of court in spousal maintenance proceedings (1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part. (2) If: (a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and (b) either of the following subparagraphs apply to a party to the marriage: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and

[page 371] (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings. (3) If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to

the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. (4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances. (5) If: (a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and (b) either of the following subparagraphs apply to a party to the marriage (the debtor party): (i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or (ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the trustee of the agreement as a party to the proceedings. (6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the

agreement. (7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances. (8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application.

[page 372]

In Budding and Budding [2009] FamCAFC 165 at 291 O’Ryan J said: … consistently with s 74, an order for maintenance should be proper. The word proper is defined in the Macquarie Dictionary 2nd Edition to mean appropriate to the … circumstances and this definition was adopted in Wilson and Wilson (1989) FLC ¶92-033. The maintenance should be at a level sufficient to enable the applicant to support him or herself adequately, since an order below that level would not remove the need for maintenance, as defined in s 72.

Under the Act, the power of the court to order maintenance is discretionary. This section provides that in maintenance proceedings, the court may make such order as it thinks

proper for the provision of maintenance in accordance with Pt VIII s 74(1).

In the matter of Hawkins and Hawkins [2016] FamCA 440 before Kent J a very unusual set of facts called for judgment. The parties were married for 12 years and separated in September 2007. No final orders in relation to a financial settlement were made in the ensuing years. Instead, the wife had pursued Supreme Court litigation of what were ultimately found to be ‘baseless’ claims. In running the Supreme Court action the wife spent $634,000 on legal fees. The husband was one of the defendants in the Supreme Court litigation and as such was forced to spend $235,000, also on legal fees. This figure was educed to an amount of $131,874.66 by order of the Supreme Court. Subsequently the husband filed an application with the Family Court for a financial settlement between the parties. In relation to the Supreme Court action the wife was found to be entirely responsible for the economic loss suffered. In addition to her own legal expenses, by order of the Supreme Court, costs were awarded to the defendants in the matter, including the husband. In the Family Court Kent J had to consider the contributions made during a 12-year marriage and events of a 10-year postseparation period. In this chapter only the wife’s application for spousal maintenance is considered. In making an order — which in practical terms is partial ‘forgiving’ of a debt — in the guise of spousal maintenance, Kent J stated (at [299]–[303]): Section 80(1)(ba) of the Act permits the making of an order for a specified transfer or settlement of property to be made by way of maintenance and subsection (a) of that section authorises an order to be made in lump sum form.

In my judgment, perhaps erring on the side of generosity to the wife, even if she undertakes some course or courses of retraining to better equip her for external employment, her capacity to meet her needs in full ought be able to be established within the next two years, if not far earlier. If the amount of $500 per week is capitalised for the next two years an amount of $52,000 is arrived at without discounting for present values of a lump sum. In my judgment, in the unusual circumstances of this case, the ‘proper’ order for spousal maintenance is to order that $52,000 of the remaining debt owing by the wife to the husband pursuant to the Supreme Court costs order ought be settled upon the wife as and by way of payment to the wife by the husband of lump sum spousal maintenance. This has the effect of reducing the remaining liability of $131,874.66 by $52,000, to a total of $79,874.66.

[page 373]

In Rankin and Rankin [2017] FamCAFC 29 the husband appealed against an order of Johns J that he pay a capital sum of $65,000 to the wife to cover, in advance, three years of spousal maintenance by which time the wife should be employed: Rankin and Rankin [2016] FamCA 250. Her Honour was mindful that the husband was heavily in debt in relation to child support, school fees and had a plethora of other financial liabilities. Nevertheless, Johns J stated (at [179]): I am also satisfied, having regard to the husband’s non-

compliance with previous orders of this Court that he pay the mortgage expenses for the former matrimonial home and the investment properties that it is appropriate that the wife’s maintenance be paid as a lump sum. Given that she will be paid maintenance in advance I am satisfied that it is appropriate that there be a discount for the lump sum amount as the wife will have the benefit of being paid maintenance in advance. The husband appealed to the Full Court of the Family Court. May, Thackray and Aldridge JJ found that the primary judge erred in finding that the husband had the means to pay a lump sum of $65,000 in spousal maintenance and that her Honour brought down a finding which, while favourable to the wife, failed to ‘add up the figures correctly’. The matter was returned to the Federal Circuit Court for rehearing before a judge other than Johns J. In doing so their Honours cited with approval (at [77]) the decision of Evatt CJ in Spano and Spano (1979) FLC ¶90707 in which Evatt CJ said at 78,766 (Powley SJ and Lusink J agreeing): One ought to mention too that the court has always taken the view that a lump sum order should only be awarded if there are funds available to meet such an order. In the present case there is no such difficulty. There are clearly funds available but it should not be taken that the fact that there are funds available would itself alone justify the making of an order. It is only a condition precedent and not necessarily itself a justification for such an order.

Appropriate level of maintenance

7.19 If the threshold condition in s 72 is satisfied, the court should make an order for maintenance that, consistently with s 74, is ‘proper’. This, in turn, means maintenance at a level sufficient to enable the applicant to support himself or herself adequately, since an order below that level would not remove the applicant’s need for maintenance, as defined in s 72. ‘Adequate’ means a level of support above subsistence level; but there is no fettering principle that the maintenance must be such as to maintain a pre-separation standard of living, where the respondent’s means permit: Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600. Instead, the court must exercise its discretion to award the level of maintenance that is reasonable in all the circumstances, having regard to the factors in s 75(2), and to ss 72 and 74. The level of maintenance awarded may also be affected by the proceeds of any property settlement: s 75(2)(n). The matter following illustrates the rule that where a final property settlement has been decided, the outcome of that settlement plays a vital part in a decision in relation to an application for spousal maintenance. [page 374]

In Westlake and Trask (No 2) [2013] FamCA 928 the wife sought ongoing spousal maintenance in addition to a property settlement in which Aldridge J awarded her net assets of $4,268,665 (60 per cent of the net assets). Aldridge J approached the wife’s application as follows (at [140]–[143]): The first step is to determine whether the wife [is] unable

to support herself adequately (s 72(1)). A court can only make an order for spousal maintenance pursuant to s 74 if the party claiming the maintenance is unable to support herself or himself adequately. Adequately is a relative concept which varies from case to case and in relation to which the standard of living which the parties enjoyed prior to separation is relevant (Bevan and Bevan (1995) FLC ¶92-600; Mitchell and Mitchell (1995) FLC ¶92-601). Pursuant to the orders to be made in this matter the wife will have net assets of the order of $4,268,665. It is not known how she will deal with those assets or what income, if any, they might generate. For that reason the evidence does presently establish that, once the orders are complied with, she will be able adequately [to] support herself. Until that time, she will have the benefit of the existing spousal maintenance orders. Thus the application for spousal maintenance must fail. In contrast, see Carse and Carse [2012] FMCAfam 1202.

Principles relating to an order for spousal maintenance Capacity for employment: s 72(b) 7.20 In Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92601, the Full Court (referring to the Canadian decision of Moge v Moge (1992) 43 RFL (3d) 345) held that in

approaching the question of a female applicant’s capacity to support herself through employment, the court will take judicial notice of social science research concerning the economic consequences of marriage and its dissolution, which shows that women who are primary carers of dependent children inevitably drop out of paid employment and consequently suffer financial deprivation, which is exacerbated by marriage breakdown. As the Full Court put it (at 61–2): Importantly, there is a significant gap between theory and reality in employment, especially for people in middle age who have been out of the skilled workforce for many years. This is so, despite the improvement in rates of employment in society generally. Loss of security, missed promotion opportunities, lack of experience and loss of retraining in developing skills in an increasingly skilled workforce together with the loss of confidence this brings, are notorious circumstances of which the court must take notice and apply in a realistic way.

In Telford and Telford [2012] FamCA 995 the husband was aged 37 and earned approximately $135,000 per annum. The wife was aged 35 and was not in paid employment. The wife sought an order for spousal maintenance in the sum of $1,845 per week payable until she completed post-graduate study on 31 January 2017. The wife [page 375] already had a tertiary qualification. Nevertheless, evidence was given on behalf of the wife that she had a ‘dream’ of completing a particular university course rather than seeking employment.

Macmillan J cited s 72 of the FLA as to the liability to support a party who is ‘unable to support herself adequately’, referring to the mother’s income-earning capacity as being the significant factor (at [22]). His Honour continued (at [23]): The mother concedes that she is skilled in her field. She says that she is ‘… yet to find suitable work despite looking for a job’ however there is no evidence of any attempts to obtain employment and it is clear from her affidavit that even had she been looking for or obtained employment that she was only looking for work until she was accepted at university to study. Macmillan J concluded (at [32]): The mother has not established that she cannot support herself adequately and that it is necessary for the father to support her. There is no basis for an order for spousal maintenance …

7.21 Such evidence is ‘background information’ against which the court will construe the evidence on the record, in particular evidence concerning a wife’s attempts to find employment, her likelihood of success, and the prospect of her obtaining an income from employment with which she can support herself adequately. Such background information is not, however, a substitute for evidence in the particular case concerning the wife’s chances of finding employment sufficiently remunerative to support herself adequately. An order for maintenance for a limited period while the wife seeks employment may be appropriate in such cases: Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601. This may, for example, be a remedy in circumstances where the applicant is engaged in looking after children of the marriage.

Where the husband has ample resources and the parties have enjoyed a high standard of living during the marriage, it may be unreasonable to expect the wife to seek unskilled and lowpaid employment, especially if the marriage is of long duration and the wife has no recent work experience: Marriage of Astbury (1978) 4 Fam LR 395 at 399; FLC ¶90494; see also Marriage of Corner (1978) 4 Fam LN N1; FLC ¶90-438. The court may consider that the applicant has little or no earning capacity by reason of such factors as the following: failing health: Marriage of Puls (1976) 1 Fam LR 11,252; FLC ¶90-036; Marriage of Bird (1979) 5 Fam LR 370; FLC ¶90-678; Marriage of Sharp (1978) 4 Fam LN N38; FLC ¶90470; Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC ¶90-890; Wollacott and Wollacott [2014] FamCA 5; Hand and Bodily [2013] FamCAFC 98; approaching retiring age: Marriage of Olliver (1978) 4 Fam LR 360; FLC ¶90-499; Marriage of Richardson (1979) 4 Fam LN N58; FLC ¶90-603; Marriage of Whitford (1979) 4 Fam LR 754; FLC ¶90-612; Marriage of Atwill (1981) 7 Fam LR 573; FLC ¶91-107; [page 376] lack of employment for many years: Marriage of Whitford (1979) 4 Fam LR 754; FLC ¶90-612; Marriage of Woolley (No 2) (1981) 6 Fam LR 577; FLC ¶91-011. An order for maintenance for a limited period while the wife seeks

employment may be appropriate in such cases: Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601; having no qualifications: Marriage of Richardson (1979) 4 Fam LR; FLC ¶90-603; and a relationship exists between childcare responsibilities and the capacity for employment: Marriage of Lusby (1977) 3 Fam LN N85; FLC ¶90-311; see also Marriage of Brady (1978) 4 Fam LN N54; FLC ¶90-513; Carroll and Maybury [2013] FCCA 288.

The interaction between ss 72 and 75(2) factors: relevant considerations in making an order for spousal maintenance 7.22 It is clear that the requirements of s 72 of the FLA do not stand alone. To have a proper understanding of this area of family law an appreciation of the interaction between s 72 and s 75(2) is vital. It is clear that the criteria set down in s 72 must be considered in light of the matters listed in s 75(2) at the threshold stage of determining whether there is a need for maintenance, and later in the assessment of the amount to be awarded. If the court finds that the test under s 72 in conjunction with s 75(2) has been met, then it may make any order for maintenance it considers ‘proper’ under s 74. The word ‘proper’ has been explained to mean appropriate to the circumstances: Marriage of Wilson (1989) 13 Fam LR 205 at 210; FLC ¶92-033 per Nygh J. Section 75(1) of the FLA states that in exercising jurisdiction under s 74, the court shall take into account only those matters referred to in s 75(2). There

is a clear distinction between maintenance and property. The main purpose of spousal maintenance is to make provision for future needs, and rests squarely on the court being satisfied that one party has need and the other a corresponding financial ability to meet that need. In contrast, property is concerned with past contributions: Marriage of Crawford (1979) 5 Fam LR 106; FLC ¶90-647. This is not to say that the court is never prepared to make generous adjustments to property awards made under s 79 in recognition of the s 75(2) factors (see Chapter 8). 7.23 Section 75(2) states that the matters to be 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

[page 377] (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other

person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person — the

financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (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

[page 378] (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (p) the terms of any financial agreement that is binding on the parties to the marriage; and (q) the terms of any Part VIIIAB financial agreement that is

binding on a party to the marriage.

Section 75(3)–(4) provides: (3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit. (4) In this section: ‘party’ means a party to the marriage concerned.

The list of factors contained in s 75(2), together with a short commentary on each, follows. It will become obvious that some of the factors overlap, with most relating to economics and finance. ‘Age and state of health of each of the parties’: s 75(2)(a) 7.24 In any application for maintenance, the age and state of health of each party must be considered. This is particularly the case when considering the ‘income, property and financial resources of each of the parties and the capacity of each of them for appropriate, gainful employment’: s 75(2) (b). An applicant who is reasonably young and presently unemployed will normally be regarded as capable of reentering the workforce: Marriage of Patterson (1979) FLC ¶90-705. It may also be, that having regard to the age of a spouse, the employment prospects of the spouse are such that it is inappropriate for the spouse to be retrained and then endeavour to obtain employment: Marriage of Evans (1978) 4 Fam LN N13; 30 FLR 566n; FLC ¶90-435; Marriage of Mapstone (1979) 5 Fam LR 205; FLC ¶90-681. Equally, the older a spouse, the more reasonable and legitimate it will be

for that spouse to set aside a capital sum out of any property order as a ‘nest egg’ to deal with future uncertainties; as a result, the fact that a sizeable property distribution has been made in a party’s favour will not necessarily debar a spousal maintenance claim: Marriage of Mitchell (1995) 19 Fam LR 44 at 60; FLC ¶92-601 at 81,995. The age of the person against whom the application is made may also be a relevant factor in the decision making by the court. A combination of age and (ill) health may have an effect on life expectancy of a party and hence his or her financial position following separation: Van Ballekom and Kelly (2005) 34 Fam LR 1; FLC ¶93-233; [2005] FamCA 853. [page 379]

Marriage of Richardson (1979) 4 Fam LN N58; FLC ¶90-603 illustrates how a respondent’s age may be a factor of importance to the applicant’s claim of maintenance and the respondent’s ability to pay. At the time of the hearing, the respondent husband was aged 62 years. Accordingly, his high current income became a factor of less importance in light of his approaching retirement. Conversely, his age gave a considerable importance to the vesting of his superannuation since he was near to receiving it.

The state of health of both parties in Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600 had a close correlation with the husband’s ability to pay, and the wife’s need of support. The medical evidence was that the husband was suffering from

chronic heart disease. The wife, on the other hand, produced evidence that she was suffering from severe anxiety and depression. For this reason it was found that while the husband was able at the time of the hearing to maintain his then earning capacity, his future, having regard to the medical evidence, was uncertain. Nevertheless, because of the wife’s state of health, the court made an order awarding the wife $50 per week by way of spousal maintenance. This case illustrates that s 75(2)(a) applies equally to the mental health and the physical health of the parties.

The facts of matters relating to a very sorry state of health of a spouse can make sad reading. In Gemelli and Pullano (No 2) [2016] FamCA 1020 before Benjamin J the applicant wife was extremely ill. Benjamin J stated (at [11]): It is not an issue that the wife is very sick, as discussed in Prof K’s reports, and that she has a significantly reduced life expectancy. At the beginning of this year, that was said to be somewhere between 12 months and two years. To her credit, the wife has defied the doctors’ expectations so far and it is the hope of this Court that she continues to defy the doctors in terms of that. Given that evidence of health, any s 75(2) factors must be considered in the light of that limited life expectancy and that was acknowledged by counsel for the wife. Although it cannot be said with certainty that the limited lifespan of the applicant had a bearing on the outcome, in any event the respondent husband lacked the financial capacity to contribute to the needs of the terminally ill applicant wife.

‘Income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment’: s 75(2)(b) 7.25 The phrase ‘income, property and financial resources’ is to be construed broadly. This broad definition empowers the court to examine not only the income of the parties, but their entire financial resources and benefits reasonably available to a party, whether or not these benefits and advantages are exploited: Marriage [page 380] of Whitford (1979) 4 Fam LR 754; FLC ¶90-612; Wong and Wong (1976) 2 Fam LR 11,159. The ‘income’ must be actual income received at the time of the hearing. It is the net income after tax: Van Dongen and Van Dongen (1976) FLC ¶90-084; Marriage of Olliver (1978) 4 Fam LR 360; FLC ¶90499.

Income 7.26 If an applicant for maintenance has sufficient income to provide for his or her reasonable needs, then no order should be made: Marriage of Corner (1978) 4 Fam LN N1; FLC ¶90-438; Strahan and Strahan (2009) 42 Fam LR 203; [2009] FamCAFC 166 (where ‘need’ involved the payment of approximately $11 million in legal fees). See also Kendling v Kendling (2008) 39 Fam LR 404.

A further illustration of the rule that in order to gain an award of maintenance a party must show need is provided by Marriage of Rowan (1977) 3 Fam LN N76; FLC ¶90-310. In that case, the wife had enjoyed for many years, both prior to the marriage and throughout the marriage, income provided by a trust fund established by her father. On the findings of the court, as to the reasonable needs of the wife, which were considered in detail, the wife’s income from that source less the tax payable on it left her with a small weekly surplus beyond her reasonable needs. Accordingly, the applicant failed to receive an award of maintenance because she could not show a need under s 72. Any consideration of the income of the applicant will depend on the significance or otherwise of its interaction with other subsections of s 75(2).

7.27 Both the applicant and respondent in an application for maintenance of property settlement under the FLA are obliged to provide the court with full and frank disclosure of all financial circumstances. Order 17 r 3 of the Family Law Rules provides a uniform method of disclosure by the parties, and, if answered truthfully, this allows for a relatively easy comparison of their respective financial positions: Whiterod and Taylor [2006] FamCA 433; (2006) FLC ¶93-266; Somerset and Somerset [2009] FamCAFC 5.

Property 7.28 The relevance of the property of a party in relation to a claim of maintenance will depend upon whether it is readily available for sale or use in a way that produces income. An

applicant for maintenance is not entitled to retain a substantial non-income-producing asset which could be readily sold, and claim maintenance on the basis that he or she has insufficient income to provide for his or her needs. The fact that the applicant is to receive a significant property distribution under s 79 (see Chapter 8) will not necessarily prevent successful application for maintenance. Equally, it is not necessary for an applicant for maintenance to have used up all his or her assets and capital in order to satisfy the requirement of being unable to support himself or herself ‘adequately’: Marriage of W (1980) 6 Fam LR 538; FLC [page 381] ¶90-872; Marriage of Mitchell (1995) 19 Fam LR 44 at 60; FLC ¶92-601 at 81,995; and Strahan and Strahan [2009] FamCAFC 166 (which involved huge sums of money). The extent of the respondent’s property is also relevant. If the respondent has a significant amount of property, it may be appropriate to consider providing lump sum maintenance or a property provision with a substantial maintenance element for the applicant, in preference to an order for periodic maintenance.

Financial resources 7.29 The term ‘financial resource’ is not defined in the FLA. It has, however, been defined by the court, in Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC ¶91-108, as a financial

stock or reserve over which a party has sufficient control as a matter of fact to draw upon when necessary towards supplying some financial want or deficiency of the party. The following examples give an indication of the wide application of the term ‘financial resource’: income or property of a third party: Marriage of Kelly (No 2) (1981) 7 Fam LR 762 at 770; FLC ¶91-108; trust or superannuation fund: Marriage of Bailey (1978) 4 Fam LR 86; FLC ¶90-240; gifts: Marriage of Trenerry (1970) 16 FLR 406 at 408; Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC ¶90890; Marriage of Baber (1980) 6 Fam LR 796; FLC ¶90-901; prospect of remarriage: Marriage of Steinmetz (No 2) (1981) 6 Fam LR 554; FLC ¶91-079; long service leave: Marriage of Richardson (1979) 4 Fam LN N58; FLC ¶90-603; assets of a company: Marriage of Kelly (No 2) at 770; insurance policy: Marriage of Lange and Moores (1979) FLC ¶90-651; service pension: Marriage of Stokoe (1976) 2 Fam LR 11,151; FLC ¶90-092; and common law claim against the other party (in tort, see Marriage of Barkley (1976) 1 Fam LR 11,554; (1977) FLC ¶90-216; in contract, see Marriage of A (1984) FLC ¶91590). The question of whether the property of a third party such as a trust or company is a financial resource of a party will depend upon the control which a party exercises in relation to the trust or company. If a party has legal control over the

assets or income of the third party, then the assets or income of the third party will probably be considered as a financial resource: Marriage of Kelly (No 2) at 770.

Physical and mental capacity 7.30 Under this subsection the court must also consider the physical and mental capacity of each of the parties for appropriate gainful employment. To determine [page 382] the issue, the court may apply both objective and subjective considerations. In recent years, the courts have been willing to take account of this aspect of s 75(2) in a way that takes particular note of social issues and the reality of the employment market, particularly in the case of women who have been the major homemaker of the partnership. The interpretation of the phrase ‘capacity for employment’ in so far as it relates to the applicant’s capacity must be seen in the light of the important decision in Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601, already discussed earlier in this chapter. That decision indicates that, in assessing whether an applicant has satisfied the threshold test in s 72 and her future capacity for employment under s 75(2)(b), the court will take judicial notice of social science data showing the adverse effects of marriage and divorce on women’s earning capacity and earning potential. Such background evidence is relevant in assessing the evidence in the particular case

relating to the applicant’s attempts to find suitable employment, and the prospects of obtaining sufficiently remunerative employment to dispense with the need for maintenance. In the case of Marriage of Mitchell the Family Court was prepared to consider the employment situation in Australia, and the difficulty of obtaining work in a climate in which scarcity of opportunity is widely acknowledged.

Care and control of the party, their children and others ‘Care or control of a child of the marriage’: s 75(2)(c) 7.31 Under Pt VIII the FLA, having the ‘care and control of a child’ plays a major role in financial matters between the parties. This is so whether the Family Court is making a decision with regard to spousal maintenance or the division of property. In relation to maintenance under ss 72 and 75(2) (c), the most significant aspect of having the care and control of a child is that it limits the capacity for gainful employment and in consequence there is a need for maintenance. It is also relevant to the quantum of maintenance. A party who has the care and control of a child will have to pay expenses which he or she would not otherwise have to pay, or not otherwise have to pay as much, in addition to expenses directly incurred for the child: Marriage of Evans (1978) 4 Fam LN N13; 30 FLR 566n; FLC ¶90-435. 7.32 The question of the care of a child arises at two points in the consideration of the maintenance application. First, it arises under s 72 of the FLA where it may be a factor in the explanation as to why an applicant is unable to support

himself or herself adequately. It arises again under s 75(2)(c), as one of the factors examined by the court in a decision as to the amount of maintenance to be awarded. Section 75(2) (c) applies only to a child of the marriage of the applicant and respondent. The care of a child not a child of the marriage is still a relevant consideration under s 75(2)(e), which relates to ‘responsibilities of either party to support any other person’. The operation of s 75(2)(c) relates only to a child or children in ‘care or control’ at the date of the hearing. See Shakir and Shakir [2013] FamCAFC 188 in which the husband had care and control of the children and the wife paid spousal maintenance to him. [page 383] ‘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’: s 75(2)(d) 7.33 Section 75(2)(d) of the FLA refers to the commitments of each of the parties that are necessary to enable a party to support himself or herself and any child or another person that the party has a duty to maintain. The term ‘necessary commitment’ involves the notion that the applicant or respondent has strict obligations to which he or she is committed: Marriage of Lawrie (1981) 7 Fam LR 560; FLC ¶91-102 at 76,755. An assessment of the reasonable needs and obligations of the applicant is relevant to determine a reasonable standard of living in all the circumstances: Marriage of Lusby (1977) 3 Fam LN N85; FLC

¶90-311. The Full Court of the Family Court in the matter following discussed the nature of a strictly necessary expense. The court did so in relation to the obligation of a parent to support a child, but it is equally relevant in a discussion of spousal maintenance.

In Marriage of Gyselman (1991) 15 Fam LR 219; (1992) FLC ¶92279, the Full Court (Nicholson CJ, Fogarty and Nygh JJ) sought to resolve conflicting first instance authorities on how stringently a judge should interpret the requirement that an expense be classified as being ‘necessary’ before it could impact on a payer’s ability to contribute towards child support. Their Honours said (at 237): The obligation of the non-custodian to pay off debts may amount to such a commitment [ie where one party has a legal obligation to repay a debt to a third party, this legal liability will transfer to the non-custodian]. It is, we think, too narrow an approach to suggest that as these are liabilities to a third party they are not necessary for the parent to support himself. Such a liability may be enforced against the parent by an order to garnishee his wages or to seize his property or to render him bankrupt. Whether a particular obligation to pay off a debt should or should not be included depends upon the circumstances of the individual case. … Pre-separation debts are not a separate category in their own right but they do arise from joint liabilities of the parties entered into prior to the separation and which one party may be left to meet. Debts incurred by the absent parent necessary to meet his changed circumstances, including furniture and accommodation, may fall within that provision. Many debts would not be included either

because they are not sufficiently connected with the paragraph [s 75(2)(d)] or because they are not reasonable in amount or could by rearrangement of that person’s finances or circumstances have been avoided. It is a matter of judgment and degree in the individual case, bearing in mind in particular that ultimately it is a matter of competing priorities.

‘Responsibilities of either party to support any other person’: s 75(2) (e) 7.34 Section 75(2)(e) of the FLA refers to someone other than the husband and wife, or any of their children under the age of 18 years. It should be noted that s 75(2)(d) above refers to ‘another person’ and ‘duty’, whereas para (e) refers to ‘any other person’ and ‘responsibility’. The distinction lies in the fact that a ‘duty’ is a legal obligation whereas ‘responsibility’ may include moral as well as legal responsibilities. [page 384]

In Marriage of Lutzke (1979) 5 Fam LR 553 at 564; FLC ¶90-714, Lindenmayer J said: Therefore, it seems to me, that ‘responsibility’ as used in s 75(2)(e) may be defined as meaning ‘the state or fact of being answerable or accountable or morally or legally obliged, or duty bound’ so that s 75(2)(e) may be translated to read: ‘the fact of either party’s being

answerable, or accountable for the support, or morally or legally obliged or duty bound to support, any other person’.

The responsibility of the respondent to support a second spouse or de facto spouse 7.35 It is not unusual for the Family Court to be faced with a balancing exercise between the respondent’s duty to a first and subsequent spouse. In the vast majority of cases, it is the husband against whom a duty lies. Thus, under this section the question often arises as to whether a first wife, who is applying for maintenance, has any priority over a second, or de facto wife, who also has claims upon the husband’s sometimes meagre resources. The answer seems to be that the second family ranks equally with the first. The court takes a realistic view of the situation.

In Marriage of Soblusky (1976) 2 Fam LR 11,528 at 11,530; FLC ¶90-124, the Full Court of the Family Court held: A court is required under paragraph (e) to consider in a realistic way the fact that a party has assumed a responsibility to support another person, and the weight to be given to that fact depends upon the circumstances of each individual case. To adopt a view that in every case the responsibility referred to in that sub-paragraph must be subjugated to the responsibility of the party to his or her spouse is in our view to unduly restrict the scope of paragraph (e) and may in particular

circumstances produce a result which is unrealistic in the circumstances.

The responsibility of the respondent to support the children of a second wife or de facto wife who are not his children 7.36 In the past it was held that the needs of the children of a first marriage should take priority over those children of the second wife or of a de facto spouse: Marriage of Lutzke (1979) 5 Fam LR 553; FLC ¶90-714; Marriage of Ostrofski (1979) 5 Fam LR 685; FLC ¶90-730; Marriage of Baber (1980) 6 Fam LR 796; FLC ¶90-901. This is no longer the situation.

These authorities have been overruled by the Full Court in Marriage of Axtell (1982) 7 Fam LR 931; FLC ¶90-208, where Evatt CJ, Emery SJ and Strauss J indicated that all claims are to be balanced under s 75(2)(e). The court stated (at 938): Despite the comments made in Lutzke, Ostrofski and Baber, we see no reason to depart from the general principle stated by the court in Soblusky [(1976) 2 Fam LR [page 385] 11,528; FLC ¶90-124] … The facts of individual cases vary a great deal. It is generally a question of balancing differing factors and according proper weight to each of

them. It is unrealistic to ignore the fact that a man sharing a household with a woman and her children from a former marriage may need to make some contribution to their support. If there are grounds for believing that some other person (eg, the children’s father) can and should be called upon to contribute to the support of the children, this may affect the weight given to that matter. This is quite different from attempting to determine the issue by assigning priorities to one obligation or responsibility over another, or by putting an onus on one party to justify why a preconceived proportion should not be paid. In our view, the principle stated in Soblusky should be affirmed as a general principle, capable of application to a multitude of different circumstances.

Eligibility for pension or other such benefits ‘Eligibility of either party for a pension, allowance or benefit’: s 75(2)(f) 7.37 In keeping with the proposition that the public purse should be spared whenever possible, s 75(3) was inserted into the FLA by the Family Law Amendment Act 1987 (Cth) on 1 April 1988. It provides that, ‘in exercising its jurisdiction under s 74, a court shall disregard any entitlement of a party whose maintenance is under consideration in relation to an income tested pension, allowance or benefit’. Section 75(3) applies only when the court is making a decision in relation to an award of spousal maintenance. The primary responsibility to provide maintenance for a spouse now rests

on the other spouse so far as he or she is able to bear such responsibility. Accordingly, an award of maintenance should be calculated as if means-tested social services did not exist. The meaning of the word ‘eligibility’ was considered in Marriage of Richardson (1979) 4 Fam LN N58; FLC ¶90-603 at 78,071, where Goldstein J said that this word appears to have two meanings: ‘legally qualified’ or ‘fit to be chosen’. Both meanings would appear to place a party to a marriage in a class to whom a benefit accrues once the necessary condition precedent has been met, for example, an entitlement to a pension once a certain age has been reached.

Eligibility for payment from a superannuation fund or scheme 7.38 Section 75(2)(f) also designates superannuation benefits as a relevant factor under the paragraph. The importance of lump sum entitlements and other lump sum retirement benefits has increased considerably in recent years. Generally speaking, a superannuation entitlement or other lump sum benefit has greater importance in a decision regarding a property settlement than it does in an award of maintenance. Superannuation entitlements may be relevant in applications for periodic maintenance. The existence of the entitlements may have no effect upon a party’s resources at the time of the hearing but give considerable security for the future and reduce the party’s present need to build up capital assets to provide for such security. [page 386]

In Marriage of Bailey (1978) 4 Fam LR 86 at 95; FLC ¶90-240, the court stated: Superannuation entitlements are often of such a nature that the party concerned may reasonably expect to receive a substantial interest at a future date. The existence of the entitlements may have no effect upon the party’s resources at the present time, but gives considerable security for the future and reduces the party’s need to build up capital assets to provide such security. As such the entitlements are relevant to the question of maintenance and the ability of the respondent to pay periodic or lump sum maintenance in an amount which without the future entitlement might otherwise be thought to deprive him or her of the ability to provide future security for himself or herself. See Hayton and Bendle (2010) 43 Fam LR 602; [2010] FamCA 592; see also Chapter 8.

‘A standard of living that in all the circumstances is reasonable’: s 75(2)(g) 7.39 The concept of ‘standard of living’ is not defined under the FLA. This is not surprising, as what might be considered a ‘reasonable standard of living’ will differ from case to case. Accordingly, ‘standard of living’ is a subjective matter, depending on the circumstances of the individual marriage. What each application does have in common, however, is a direct comparison of the overall standard of living of the applicant and respondent, both before the separation of the parties and since. The cases make it plain that, as a guiding

principle, the court must consider what is reasonable in the circumstances of the particular applicant and respondent before the court. Section 75(2)(g) of the FLA enables the court to take into account matters such as the disparity in income between the parties, the provision of a reasonable standard of living in the circumstances, the duration of the marriage and the extent to which it has affected the applicant’s earning capacity. The decisions in Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600 and Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601 make it plain that ‘a standard of living which is reasonable in all the circumstances’ reflects the overall standard of living to which the parties were and are now accustomed, taking into account the changed circumstances. See also Stein and Stein (2000) 25 Fam LR 727; FLC ¶93-004 where a husband who had control of many millions of dollars in assets was ordered to pay $1,160 per week to his wife in interim maintenance following their separation. This was the amount required by the wife to maintain her lifestyle following considerable ‘belttightening’. There appeared to be no such requirement in the following matters.

In Bing and Bing [2007] FamCA 418; (2007) FLC ¶93-318 the Full Court dealt with an interim maintenance order in a large pool case (conceded at many millions) and did not interfere with the trial judge’s over-generous provision to a wife. The trial judge had ordered $800 per week more than the wife’s disclosed need (a lump sum representing $2,000 per week with disclosed need of $1,200 per week). [page 387]

In Keisinger and Paget [2008] FamCAFC 23 there was again a large pool of assets. The husband controlled over $17 million and the wife controlled over $270,000. The wife’s interim needs were assessed at $2,210 per week. The husband sought leave to appeal the decision. In refusing leave to appeal, the Full Court found that the trial judge was entitled to find the wife not able to support herself adequately from her own resources.

In Dawson and Dawson (No 2) [2010] FMCAfam 1106 Turner FM found that ‘a standard of living that in all the circumstances is reasonable’ within the meaning of s 75(2)(g) of the FLA meant in the present case, where both parties were wanting to buy a property of their own after distribution of their property settlement, that they should not do so. His Honour said (at [8]): As both parties would like to purchase a property, but one concedes they are prepared to rent, and there is a significant difference in the cost of renting and purchasing, the court decides that a standard of living that in all the circumstances of this case is reasonable, is for each party not to purchase a property. Turner FM accepted the wife’s incapacity for gainful employment or self-support but dismissed her maintenance application as the husband was found not to be ‘reasonably able to maintain’ the wife, having a surplus of just $65 weekly with which to provide for any unexpected expenses for himself and his son.

In Brown and Brown [2007] FamCA 151; (2007) 37 Fam LR 59; FLC ¶93-316 (Kay, Warnick and Boland JJ), the dispute related to whether the spousal maintenance awarded to the wife ought

to have been by way of periodic amounts, rather than by one very large sum. This was an appeal by the husband against an order for lump sum spousal maintenance and child maintenance. The husband also sought an extension of time to appeal an order restraining him from leaving Australia and leave to appeal further orders. The trial judge ordered the husband to pay lump sum spousal maintenance of $3,750,000 to the wife. Two weeks after making the primary order, the trial judge restrained the husband from leaving Australia and from obtaining a passport. On appeal, the husband submitted that the trial judge had not given adequate reasons for the decision to award lump sum rather than periodic maintenance, nor for the assessment of that lump sum amount. He also submitted that the trial judge had taken into account an irrelevant factor in the assessment of the lump sum. The husband submitted that the order for child maintenance was, therefore, based on the failure of the trial judge to give adequate reasons, to give sufficient weight to certain factors, and contested that the trial judge did not have the power to make the injunction. [page 388] Held: appeal allowed in part; application dismissed. 1.

The trial judge’s reasons for ordering a lump sum payment were clear.

2.

A capitalisation of the wife’s net annual needs for a term of years, selected with regard to joint life expectancy and the exigencies of life, was a relatively straightforward exercise. In the absence of that exercise, it was not known for how long the trial judge thought it appropriate that the husband maintain the wife, albeit by one lump sum payment.

3.

The failure of the trial judge to disclose in his assessment process any consideration of prospective disadvantage to the husband constituted at least a failure of reasons.

4.

It could not be ascertained why the trial judge arrived at $3,750,000 and, accordingly, it was considered that the reasons provided were inadequate.

5.

For the husband to fail to comply with an order which he admitted he had the capacity to pay and then point to that failure as demonstrative of the lack of utility of an order in the nature of enforcement carried little weight.

6.

The trial judge placed the injunction on the husband in order to enforce the lump sum payment to the wife. The Full Court found that there was no difficulty with a condition in the nature of enforcement of a court order being placed upon a stay.

In Budding and Budding [2009] FamCAFC 165 at [29] O’Ryan J, in discussing the manner in which an order granting spousal maintenance might be satisfied, cited the earlier case of Clauson thus: In Clauson [(1995) FLC ¶92-595] the Full Court said at 81,908: The other aspect which it is important to identify in this case is that the power to make a maintenance order is to be found in s 74. As s 80(1) makes clear, the Court, in exercising that power, can do so in a number of ways, including by a periodic order or a lump sum order. Periodic maintenance should be considered before lump sum maintenance. The central power is to order maintenance; that power may be exercised in different ways. A claim for lump sum maintenance is not a claim to the exercise of a separate head of power; it is a claim for maintenance which may be satisfied by a periodic order or by a lump sum order; see Davidson and Davidson (No 2) (1994) FLC ¶92-469. This type of lump sum maintenance is not a separate entity. It is the

capitalizing over a period of time of what is considered to be appropriate periodic maintenance for that period, usually with a discount because of immediate payment. The power to capitalize periodic spousal maintenance is a power to be exercised cautiously for reasons referred to by his Honour in the passage cited above: see, for example, Vaughan and Vaughan (1981) FLC ¶91-066 at 76,508; O’Brien and O’Brien (1983) FLC ¶91-316; Spano and Spano (1979) FLC ¶90-707; Anast v Anastopoulos [(1981) 7 Fam LR 728; (1982) FLC ¶91-201]; Vartikian and Vartikian (No 2) (1984) FLC ¶91-587 at 79,739–40. In particular, uncertainty about future events explains this approach, and capitalization of maintenance would rarely be justified where there was no genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order.

[page 389] ‘Extent to which the payment of maintenance would increase the ability to obtain an adequate income’: s 75(2)(h) 7.40 The thrust of s 75(2)(h) of the FLA is the provision of an award of maintenance on a short-term basis in order to help the applicant to become self-supporting. Section 75(2) (h) overlaps with s 75(2)(j) and (k). Together these provisions oblige the court to engage in an exercise which in effect balances the economic strength of the respondent against the potential of the applicant. In other words, how much can the respondent afford by way of maintenance in the short term, so that the applicant may in the future be able to provide for his or her own needs? 7.41 In assessing proposals for retraining or the establishment of the applicant in a business, the court will have regard to the capacity of the applicant to succeed

whether in the running of a business or the undertaking of education or retraining. The purpose behind training and education so far as the FLA is concerned is to enable the applicant to obtain an income sufficient for his or her needs. Accordingly, there must be a correlation between the course of study or retraining and the return in financial terms. If the applicant has a present earning capacity, but wishes to begin or complete some course or training, that present earning capacity must be taken into account and balanced against the respondent’s financial position and the appropriateness of an award of maintenance. In any application before the court under s 75(2)(h), considerable evidence as to the parties’ true circumstances will be vital. This was made plain in the following case.

In Marriage of McMahon (1976) 2 Fam LR 11,267; FLC ¶90-128, the Full Court directed a rehearing on the question of maintenance. It appeared that the wife had an earning capacity but at the date of hearing had been unemployed and taking a course in business studies. The Full Court directed the rehearing, among other reasons, because little regard was paid to the wife’s potential earning capacity at that time, or in the future.

‘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’: s 75(2) (ha) 7.42 The Family Court has considered the interests of creditors when exercising power to adjust property interests

between spouses prior to the introduction of s 75(2)(ha): Chemaisse and Commissioner of Taxation (No 3) (1990) 97 FLR 176; 13 Fam LR 724; FLC ¶92-133. The introduction of provisions to allow for the concurrent consideration of bankruptcy and family law proceedings and for the institution of property or maintenance proceedings by a non-bankrupt spouse against the trustee in bankruptcy in place of the bankrupt spouse allows for a consideration of the competing interests of creditors on the one hand and spouses and children (see s 79(1)) on the other. [page 390] ‘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’: s 75(2)(j) 7.43 Section 75(2)(j) of the FLA requires the court to consider the extent to which the applicant has made a contribution, whether financial or otherwise, to the income, earning capacity, property and financial resources of the respondent. The contribution may be by the provision of unpaid or underpaid work in the respondent’s business or it may be that the applicant has supplied capital to the respondent by way of gift or by loan. There are several cases where the contribution was by way of financial support to the respondent, enabling the respondent to qualify for a profession. The contributions may have been made by the applicant either prior to the marriage or during the marriage. In assessing such contributions, the court will examine

whether there is a direct relationship between the income, earning capacity, property or financial resources of the other party and the contribution made. The criterion of past contribution is very relevant in proceedings under s 79. It may not be directly relevant in maintenance proceedings except where substantial contributions were made which did not produce any property such as a contribution to the respondent obtaining professional qualifications.

In Marriage of Mitchell (1995) 19 Fam LR 44 at 60; FLC ¶92-601, the court stated: [I]t is important to recognise and give realistic effect to the circumstance that the acquisition and development by the husband of his professional skills (and thus his present high earning capacity) occurred during the marriage whilst at the same time, the wife sacrificed her professional skills to care for the family. These are matters to which paras (j) and (k) of s 75(2) are directed. An illustration of the importance of taking into account that one party had contributed to the other’s earning capacity is Re B and B (No 2) (2000) 26 Fam LR 437; FLC ¶93-031.

Duration of marriage ‘Duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration’: s 75(2)(k) 7.44

The purpose of s 75(2)(k) of the FLA is not to create a

distinction between marriages of a long duration as compared to those of short duration when maintenance is under consideration: Marriage of Petterd (1976) 1 Fam LR 11,496; FLC ¶90-065 at 75,388. The duration of a marriage is important when considering the ability of an applicant for maintenance either to stay in or re-enter the workforce. This is particularly so where after many years of domestic life, a marriage breaks down with a consequential lack of earning capacity on the part of the applicant. Section 75(2)(k) is directed to deal with the situation where the earning skills of an applicant have been eroded as a result of the duration of the marriage. [page 391]

See Marriage of Hirst and Rosen (1982) 8 Fam LR 251 at 252; FLC ¶91-230, where Nygh J said: … paragraph (k) is directed to deal with the situation where a woman has had her earning skills eroded as a result of the duration of the marriage, as a result, in other words, of having left the work force to perform the role of house wife and/or mother for a considerable period.

Earning capacity 7.45 In Marriage of Beck (No 2) (1983) 8 Fam LR 1017 at 1019; FLC ¶91-318, the Full Court held that ‘earning capacity’

as expressed in the FLA should be given a wide interpretation, meaning capacity to earn income by any means, thereby including capacity to obtain income from income-producing assets. The court also made it clear that this paragraph is concerned with earning potential, and not merely with current income. ‘Need to protect a party who wishes to continue that party’s role as a parent’: s 75(2)(l) 7.46 Section 75(2)(l) of the FLA requires the court to consider the need to protect the position of the party who wishes to continue his or her role as a parent. This paragraph echoes para (c) which requires that a court, in considering a question of maintenance, should take into account whether either party has the care and control of a child of the marriage who is not yet 18. Accordingly, it allows the court to consider the financial and other consequences of the responsibilities of looking after a child. There is, however, no absolute right of choice to adopt this role. Paragraph 75(2)(l) is only one of a number of factors to be taken into account by the court. Ultimately it must be weighed with other factors to determine what is reasonable in the circumstances. In reaching its decision, the court will take into account the age and independence of the children in question: Marriage of Heeks (1980) FLC ¶90-804. ‘If either party is cohabiting with another person — the financial circumstances relating to the cohabitation’: s 75(2)(m) 7.47 Section 75(2)(m) of the FLA enables the court to take into account in maintenance proceedings the financial

circumstances relating to the cohabitation with another person of either the applicant or the respondent.

The narrow view of the meaning of cohabitation is to be found in Marriage of Grabar (1976) 2 Fam LR 11,581 at 11,587; FLC ¶90147, where it was stated that ‘cohabitation means living together as husband and wife or as if husband and wife’. This narrow view would confine s 75(2)(m) to circumstances where a party has remarried or is living in a de facto marital relationship.

[page 392] 7.48 The broader view encompasses a relationship without all the characteristics of marriage, which is between two people who are cohabiting in the sense of living in the same premises and providing mutual help and assistance. This was the view taken in Marriage of Roberts (1977) 3 Fam LN N59. 7.49 There appears to be a divergence of opinion as to whether cohabitation infers a mirror image of a marriage with sexual intercourse as a component or whether the words ‘residing with’ is equally correct. The better view appears to be that para (m) places the major emphasis only on the financial aspects of an actual cohabitation.

In Marriage of F (1982) 8 Fam LR 29; FLC ¶91-214, the applicant wife was living in a de facto relationship with a man who for reasons of employment was absent from the applicant’s home

during most weekdays and nights. He made no financial contribution to the upkeep of the household because it was said that he already had a financial responsibility towards his estranged wife and children. In addition, he felt it inappropriate to contribute because he felt no real commitment to the applicant. Fogarty J said (at 33): No doubt the wife and the de facto husband are entitled to make any personal or financial arrangements between them which are suitable to both of them. That however does not mean that the wife may continue to impose upon her husband the responsibility for her support in those circumstances. In relation to the question of appropriate arrangements between a de facto couple, his Honour continued (at 33): [I]n my view, in a specific case such as this, the term ‘the financial circumstances relating to the cohabitation’ is not confined to any actual financial arrangements between the relevant persons. It may also include financial arrangements which would be appropriate in those circumstances. That is, the court is entitled to take ‘this potential into account’ … It would in my view 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 support of [the de facto husband] and in my view is not obliged to contribute to the wife’s maintenance.

‘Terms of any order made or proposed to be made under s 79 in relation to the property of the parties’: s 75(2)(n) 7.50 Section 75(2)(n) of the FLA requires a court, in considering a maintenance application, to take into account the effect of ‘any order made, or proposed to be made’ under s 79 (see Chapter 8) in relation to the property of the parties. This reference imports the notion of any final order, with regard to maintenance and property, being made contemporaneously. [page 393]

In Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,487; FLC ¶90-056 at 75,238, the Full Court stated: Section 79(4)(d) establishes a clear link between the court’s powers to deal with maintenance and its powers to alter the interests of the parties in property, and reinforces the need to consider all these questions together where practicable. This is further emphasized by s 80 which defines the general powers of the court and by s 81 which provides that in proceedings under s 79 and in proceedings relating to maintenance after dissolution ‘the court shall, as far as practicable, make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them’.

7.51

Where the applications for maintenance and property

settlement are considered concurrently, the court is required to reach a decision on the property application, taking into account all matters under s 79, including those under s 75(2), before considering an application for maintenance. The court then has to consider the application for maintenance in the light of the impact of the property order on the parties’ financial circumstances. If the applicant is unable to maintain himself or herself adequately, the court should go on to consider the form and quantum of the maintenance order: Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; FLC ¶91-201 at 77,961. Thus, it can be seen that the court is required to consider the question of maintenance and property adjustment together when it is practicable to do so. There are two sets of circumstances in which the effects of s 75(2)(n) are most noticeable. One is in the circumstance where there is very little property to distribute under s 79, making the award of a maintenance order both necessary and equitable. Conversely, where there is a very large amount of property to be adjusted, it may be that there is no requirement for a maintenance order, in light of the applicant’s lack of need. In Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92595, a ‘four-stage approach’ was adopted in determining property/spousal maintenance cases, whereby: the property is identified; the contributions of each party are assessed pursuant to s 79(4)(a)–(c); then, if a further adjustment is required, the additional factors are considered pursuant to s 79(4)(d)–(e) which incorporates the s 75(2) factors; and

if the needs of a party are still not met, an additional order for spousal maintenance may be required. This was affirmed in Marriage of Rosati (1998) 23 Fam LR 288; FLC ¶92-804. ‘Terms of any order or declaration under Pt VIIIAB Financial Matters relating to de facto relationships’: s 75(2)(naa) 7.52 Section 75(2)(naa) provides that one of the things the court needs to take into account under s 75(2) is the terms of any order or declaration made, or proposed [page 394] to be made, under Pt VIIIAB, in relation to a person who is a party to a de facto relationship, or a party to a marriage, or the property of a person covered by such an order or declaration. ‘Any child support under the Child Support (Assessment) Act 1989’: s 75(2)(na) 7.53 Section 75(2)(na) requires that in proceedings of spousal maintenance, the court take into account any child support that a party to a marriage has provided or is to provide for a child of the marriage.

In Marriage of Stein (2000) 25 Fam LR 727 the Full Court dealt with the problem of including the needs of children in the claim

of a wife for spousal maintenance. Because of the multiple roles of s 75(2), both the obligation of the carer (s 75(2)(d)) and the liability of a payer (s 75(2)(na)) for child support are matters to be taken into account in relation to spouse maintenance. The Full Court dealt with it this way (at [47]–[49]): In determining the quantum of spousal maintenance, his Honour was obliged to take into account under s 75(2) (na) not only child support which a parent is providing, but child support which a parent might be liable to provide in the future. Section 75(2) serves many masters. It contains matters to be considered in both s 74 (spousal maintenance) and s 79 (alteration of property) proceedings. It contains matters relevant to the capacity of the payer to make maintenance payments, and to the needs of the payee to receive them. It contains matters which are relevant to comparing the situation of the parties when deciding what an appropriate adjustment of property interests should be. But its provisions must be read as ancillary to the power being exercised in each case. The maintenance power is to be found within the confines of ss 72 and 74, the property power within the confines of s 79(1) and (2). 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. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the court must determine his capacity to pay that maintenance having regard to his

obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet.

‘Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’: s 75(2)(o) 7.54 Section 75(2)(o) of the FLA contains the final relevant factor to be taken into account when the court is considering an application for spousal maintenance. Much judicial and academic debate has taken place as to the breadth of interpretation of this paragraph. Much of the debate has centred on the types of conduct encompassed by it. It was unclear whether, on a correct interpretation, ‘fact or circumstance’ could relate to marital conduct generally or only that conduct having an impact on the economic circumstances of the marriage. [page 395] The ‘no fault’ system of family law that defines the manner in which judicial decisions are made is, on the one hand, civilised while on the other, it deprives many victims of family violence from feeling that they have been taken seriously. Despite the passing of the years since the seminal cases establishing the ‘lack of interest’ of the Family Court in

all but financial ‘bad’ behaviour, the courts’ bias continues. This, despite the modern-day discussion and recognition of the manner in which violence eats away a victim’s dignity and self-worth. Although the following matter relates to a division of property (and will be further discussed in Chapter 8) it has implications for an application for spousal maintenance also.

In the matter of Kennon and Kennon (1997) 22 Fam LR 1; [1997] FamCA 27 before Fogarty, Baker and Lindenmayer JJ we see the seminal case on violence and the type of evidence demanded to persuade the court of conduct so egregious that justice demands it cannot be ignored. Their Honours stated (at 24): Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.

Daily matters come before the Family Court in which violence and its corrosive effect is cited by applicants, but to achieve a positive outcome for the victim, evidence must be extremely thorough and if possible detailed in a diary. Of course it is not easy to gather this evidence but it adds credence to pleadings on behalf of an applicant.

7.55 It is clear that any modern-day discussion of the interpretation of s 75(2)(o) would be incomplete without a discussion of the impact of violence within the marriage. Any reading of the older cases would lead to the conclusion that in determining maintenance and the division of property, the general approach adopted by the Family Court is that violence is irrelevant, except where it has direct impact on the financial circumstances of the marriage. The following cases give an indication of the attitude of the Family Court when dealing with matters in which allegations of conduct relating to ‘fault’ have been discussed. 7.56 In relating s 75(2)(o) to conduct of a financial nature, the Family Court may have been mindful of the basic philosophy of the FLA in excluding notions of fault from matrimonial proceedings. Certainly, it may be argued that any reintroduction of the recrimination and counterrecrimination of former years would lead to protracted and costly litigation and undermine the basic philosophy of the FLA. Nevertheless, there is some contradiction between the Full Court’s statement as to the undesirability of fettering the court’s discretion under s 75(2)(o) and its statement confining ‘facts or circumstances’ to those of a broadly financial nature. [page 396]

The Full Court’s exclusion of conduct in the decision of Marriage of Soblusky was the subject of comment from another Full Court

in Marriage of Ferguson (1978) 4 Fam LR 312; FLC ¶90-500, where it was held that s 75(2) does not include conduct in the list of matters to be taken into account. In deciding that matrimonial fault was relevant only in terms of economic consequences, the majority stated (at 329–30): [M]atrimonial fault in the general sense is not to be taken into account. The Family Law Act does not set out to punish parties on any basis when it comes to deciding their financial relationships either by way of ongoing maintenance or final property settlement. … [Section 75(2)], when read, as it must be read, ejusdem generis with the matters set forth in s 75(2)(a)–(n) enables the court to bring into account conduct which has an economic significance in the parties’ dealings with each other or the property in dispute. … Conduct of the kind we have been describing is simply one additional factor that can be brought into the balance if the court is of the opinion that the justice of the case so requires …

7.57 The matter is further clouded by the finding of the Full Court in relation to s 43 which obliges the court to be mindful of the need to preserve and protect the institution of marriage and to protect and assist the family as the natural and fundamental group unit in society.

This exception relating to s 43 and the Full Court’s exclusion of conduct in the decision in Soblusky was also the subject of comment by the Full Court in Marriage of Ferguson (1978) 4 Fam LR 312; FLC ¶90-500. Strauss J stated (at 318): I cannot understand what the court meant when it referred to a matter falling within the ambit of s 43 which

may be a fact or circumstance within the meaning of s 75(2)(o). Section 43 does not appear to me to relate to ‘matters’ in that sense, but a principle to which regard must be had in the exercise of the court’s jurisdiction in accordance with the provisions of the Act. I consider that s 43 does not provide any justification for taking into account matrimonial misconduct as such either under s 75(2)(o) or under s 79(2). In the same decision, the joint judgment of Watson and Woods SJJ (at 389) revealed a possible explanation of what the Full Court had meant in Soblusky by its reference to s 43: There may also be the rare or exceptional case where a party has ignored completely the basic concepts upon which the partnership of marriage is founded. For example, there may have been no contribution whatsoever, not even as a homemaker and parent. To this extent, and probably to this extent only, the principles set forth in s 43 may come into play.

In Marriage of Sheedy (1979) 5 Fam LN N24; FLC ¶90-719, the wife alleged that the husband had maltreated her and as a result made her job as homemaker and parent more difficult. Nygh J refused to receive evidence of these allegations, stating (at FLC ¶78,872): [page 397] In the present case, the mere allegation that the husband maltreated the wife, the mere allegation he was unfaithful to her, says nothing about his contribution to the house or as a parent. To allege that as a result of maltreatment, the applicant’s job as

homemaker and parent was made more difficult, is in effect, to revive in a modified form old claims for compensation for matrimonial misconduct. If the Family Law Act has achieved anything, it is the end of that particular approach to the resolution of matrimonial disputes.

The philosophy of the Family Court in disregarding ‘fault’ except in so far as it had economic consequences was evident in Marriage of Mead (1983) 9 Fam LR 193, where the gambling and excessive drinking of the husband had exhausted the earnings of both parties throughout the marriage. Asche SJ held (at 196) that the husband’s conduct should not be used ‘in any sense of punishing him’, and that consequently the wife should not be entitled to a greater share of the property ‘merely to show the court’s disapproval of the husband’s conduct’. It was held that the conduct was relevant only in the determination of the extent of his financial contribution, and that his conduct, which caused a subsequent economic loss to the parties, largely negated any contribution made by him. The court also found that the husband was sometimes violent to the wife when she refused to hand over money to him, but this finding did not apparently influence the conclusion reached by the court. The husband’s conduct was seen as relevant only with regard to the role it played in his financial contributions to the marriage (at 196–7).

The 1990s brought little change, with Marriage of Fisher (1990) 13 Fam LR 806; FLC ¶92-127 being a prime example. In that

case the Full Court per Murray, Baker and Nygh JJ overruled the decision of the trial judge, Cook J, who had refused to strike out of the wife’s pleadings that the husband had committed several assaults on her. The wife did not, however, allege that the misconduct by the husband had a long-term impact on her capacity for employment. Nor did she plead that the court should value her contribution to the marriage more because of the violence. In the judgment of the Full Court, the husband’s behaviour, not being of a financial nature, lacked relevance to the question of contributions by either party to the marriage.

The issue of domestic violence is discussed further in Chapters 8 and 10. 7.58 The following are illustrations of matters which the court has found relevant as a ‘factor circumstance’ under s 75(2)(o) of the FLA: manipulation or destruction of assets: Marriage of Cordell (1977) 3 Fam LR 11,588; FLC ¶90-382 at 76,702; [page 398] breach of an agreement: Marriage of Bates (1976) 2 Fam LR 11,407; FLC ¶90-123; loss of pension: Marriage of Hirst and Rosen (1982) 8 Fam LR 251; FLC ¶91-230; loss of interest in estate: Marriage of Beck (1982) 8 Fam LR 340; FLC ¶91-235 at 77,281; failure to make request for contribution: Marriage of

Patterson (1979) FLC ¶90-705 at 78,757; improvement of qualifications: Marriage of Lang (1976) 1 Fam LR 11,283; cohabitation before marriage: Marriage of Olliver (1978) 4 Fam LR 360; FLC ¶90-499; prospects of remarriage: Marriage of Steinmetz (1980) 6 Fam LR 554. ‘Terms of any financial agreement that is binding on the parties to the marriage’: s 75(2)(p) 7.59 Part XIIIA of the FLA allows for binding financial agreements to be made governing the parties’ financial affairs on divorce or separation. Where such an agreement is binding, the court’s powers under Pt VIII are excluded: s 71A. However, a binding agreement may not cover all the assets of the parties. Those assets not included will still have to be dealt with under Pt VIII. This paragraph ensures that, in exercising those continuing Pt VIII powers, the court is required to have regard to the terms of the agreement in assessing property distribution and spousal maintenance. ‘Terms of any Pt VIIIAB financial agreement that is binding on a party to the marriage’: s 75(2)(q) 7.60 Section 75(2)(q) provides that the terms of any de facto financial agreement that is binding on a party to a marriage should also be taken into account.

Relevance of pension, allowance or benefit — s 75(3)

7.61 Section 75(3) provides that in proceedings for spousal maintenance the court must disregard any eligibility for an income-tested pension, allowance or benefit of the applicant for maintenance. It resolves the conflict that existed as to the relevance of such an eligibility in favour of the ‘public purse’. The primary responsibility to provide maintenance for a spouse now rests on the other spouse so far as he or she is able to bear such a responsibility. The question that arises is whether or not the court still retains a discretion to take such an eligibility into account in an appropriate case. Section 75(3)–(4) provides: 3.

In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

4.

In this section:

‘party’ means a party to the marriage concerned.

[page 399]

Types of orders and duty of courts to end financial relations between spouses 7.62 As noted above, pursuant to s 74 of the Act the court is entitled to ‘make such order as it thinks proper for the provision of maintenance’, that is, an order that is appropriate in the circumstances: Marriage of Wilson (1989) 13 Fam LR 205; FLC ¶92-033. This is the guiding principle in spousal maintenance cases: Marriage of Bevan (1993) 19 Fam

LR 35; (1995) FLC ¶92-600. Section 80 enumerates a number of options open to the court in making orders for spousal maintenance, including ordering a payment by one or more lump sums, periodic payments, or a specified transfer of property. Lump sum orders have the advantage of allowing the parties to have a ‘clean break’; however, they are not always viable given the pool of property available at the time the order is made. The courts have generally expressed a preference for periodic payments of spousal maintenance: Marriage of Clauson (1995) FLC ¶92-595. However, this preference is not insurmountable and in particular may be adopted where there are identifiable assets from which it can be paid and there is concern regarding the capacity and willingness of the payer to regularly comply with orders: Vautin and Vautin (1998) FLC ¶92-827. 7.63 Section 81 is potentially of relevance to the type of spousal maintenance orders that are made. It imposes a duty on the court to make, as far as practicable, orders that will put an end to the financial relations between the parties to a marriage that has come to an end. Section 81 of the FLA states: In proceedings under this Part [that is, Pt VIII], other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, 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.

The philosophy underlying s 81 was stated in an English case,

Minton v Minton [1979] AC 593, when Lord Scarman stated (at 608): The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make, as between the spouses, a genuinely final order unless it was prepared to dismiss the application.

7.64 Section 81 contains a direction as to how the powers of the court under Pt VIII of the FLA should be exercised, but it does not, by itself, confer an independent power upon the court to make an order otherwise than in accordance with ss 74 and 79 (see Chapter 8). There have been a number of cases over the last few years where reference has been made to the problems arising as to the effect of s 81, particularly in relation to women. It is becoming more evident, both in Australia and Canada, that the ‘clean break’ principle does little to promote an equitable and just finalisation of [page 400] the financial relationship. In practice, the clean break principle has been predicated on the promotion of selfsufficiency. The very notion of ‘self-sufficiency’, however, in many circumstances is the ideal, rather than the attainable. More recent cases discuss the view that there must be an

equitable sharing of the economic consequences of marriage and its breakdown. In other words, the parties to the marriage ought to share both the benefits and the burdens accruing from their relationship. This is particularly important where one of the spouses has been a homemaker throughout the marriage rather than developing an incomeearning capacity.

In Marriage of Best (1993) 16 Fam LR 937; FLC ¶92-418, the court emphasised that self-sufficiency is not of paramount significance as an objective in determining settlement between spouses and that it had been over-emphasised given the social and financial realities of the community and the economy: see also Moge v Moge (1992) 43 RFL (3d) 345.

7.65 The duty of the court under s 81 is qualified by the words, ‘as far as practicable’. This has been interpreted as rendering the duty imposed in s 81 subordinate to other duties imposed on the court, such as the duty to make orders for spousal maintenance that are ‘proper’ under s 74. Accordingly, if it is not possible for the court to fulfil its obligations under s 74, the requirements of s 81 may be met by making an order for continuing periodic payments.

In DJM and JLM (1998) 23 Fam LR 396 at 428, the Full Court agreed with the statement in Marriage of Dench (1978) 6 Fam LR 105 at 107; FLC ¶90-469 at 77,402 by Evatt CJ and Watson SJ, when their Honours stated: Section 81 casts a duty on the court as far as

practicable to make such orders as will finally determine the financial relationships between the parties and avoid further proceedings. This provision does not override ss 72, 75 or 79 and it does not come into play unless the court has determined that it would be just and equitable to make a property order under s 79 or that it would be proper, having regard to ss 72 and 75 to make a maintenance order in favour of one party … At that stage, s 81 may have a bearing upon the form of the order; it must be considered in the light of s 83, under which maintenance orders may be modified …

Urgent maintenance 7.66 An award of maintenance may be made where it appears to the court in proceedings for spousal maintenance that the applicant is in immediate need of financial assistance, but it is not practicable in the circumstances to determine what order, if any, should be made: s 77 of the FLA. The court may order the payment of a sum which it considers reasonable in the circumstances. Such an award is provided on the basis of urgent and immediate need. These orders are intended to be a short-term measure and will depend upon the particular circumstances [page 401] and the financial background of the parties: Fairbanks and Fairbanks [2009] FamCA 654.

7.67 It is important to note that the Family Court has held that an applicant for spousal maintenance under s 77 is obliged to satisfy the threshold test in s 72. In other words, the applicant must establish ‘need’ and it must be shown that the respondent has the requisite ‘ability’: Marriage of Guyopar (1986) FLC ¶91-769. Section 77 of the FLA states: Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

The nature of orders under s 77 was considered by the Full Court in Marriage of Chapman (1979) FLC ¶90-671, where Fogarty J (with whom Asche SJ and Murray J agreed) said (at 78,569): I think it must be clearly understood that s 77 applications have particular characteristics about them: they are intended to deal with urgent situations; they are normally relevant for a defined or definable period of time; and they are in the nature of stop-gap orders. That of course does not mean that they have to be bread-line orders. What the appropriate quantum is depends on the particular circumstances of each case and the financial background and history of the parties. See also Marriage of Williamson (1978) 4 Fam LR 355; FLC ¶90555.

In Grimshaw-Grieves and Grieves [2011] FMCAfam 125 the wife applied for urgent maintenance under s 77 of the FLA when her lengthy employment with the family company was terminated by the husband, who also stopped paying for certain utilities. Her evidence was that due to her inexperience in the wider workforce she had been seeking to retrain in another area, but that her efforts would not return an income for some time. The maintenance of $1,050 per week sought was significantly less than her pre-redundancy earnings. The wife also applied for an order that the husband pay the loan repayments and other outgoings on the family home. Counsel for the husband submitted that the wife had shown no ‘immediate need of financial assistance’ as required by the section in that her financial statement disclosed a bank account with a balance of $17,300. Scarlett FM reviewed the relevant case law (including the authorities as to the difference between urgent and interim maintenance) and held that the wife had not demonstrated an immediate need of financial assistance. Scarlett FM said this (at [22]): It is very much a factual issue. I get back to the fact that an application for spousal maintenance under s 77 is an urgent matter. In my view, the fact that the Applicant has funds at her disposal in the amount of $17,300.00 goes a long way at this stage [page 402] to militate against her claim that she is in immediate need of financial assistance. This is not to say that at some stage in the relatively near future she may well be able to demonstrate a claim for a need for ongoing maintenance until further order under s 80 of the Act, but

the procedure is very different. There needs to be a separate application and that is dealt with in a more conventional way, as Nygh J pointed out in the decisions of Pritchard [(1982) FLC ¶91-286] and Ashton [(1982) FLC ¶91-285] in 1982: But where the court is dealing with an application for maintenance which does not qualify for the summary procedure authorised by s 77, the court must conduct the proceedings for maintenance in the ordinary form, after giving the usual directions for the filing of pleadings, and after hearing all relevant evidence having regard to the matters set out in s 75(2).

See also Galazin and Galazin [2010] FMCAfam 1149 where Monahan FM reviewed the relevant law and made an interim order for payment of mortgage repayments and other outgoings, with interim maintenance in the sum of $300 per week.

Interim maintenance 7.68 Under the FLA there is no special category of interim maintenance. The court is empowered by s 80(1)(h) to make a maintenance order ‘until further ordered’ and this is sometimes referred to as an ‘interim’ maintenance order. It is the same as ordinary maintenance under s 74 except that the court is making an order that is limited in duration, such as until further order or pending disposal of proceedings. In such an application all of the normal procedural steps for maintenance applications must be followed, but the court has more flexibility and does not have to conduct a lengthy hearing on the evidence before it: see Marriage of Williamson (1978) 4 Fam LR 355 at 359 per Fogarty J; FLC ¶90-555; Marriage of Redman (1987) 11 Fam LR 411 at 413–15; Marriage of Wilson (1989) 13 Fam LR 205 at 206 per Strauss

J, at 210 per Nygh J; FLC ¶92-033; and Fairbanks and Fairbanks [2009] FamCA 654. In the application for interim spousal maintenance the Full Court of the Family Court in the following case found that the applicant wife had been denied natural justice.

In the matter of Hall and Hall (No 3) [2013] FamCA 1975 Dawe J set out with clarity the methodology used by the court when awarding to the wife spousal maintenance in the sum of $10,833 monthly by way of an interim order (at [13]). This was in circumstances where, pending trial, evidence of the true financial resources of the parties had not yet been determined. In addition, Dawe J made an order in relation to the children of the marriage whereas the husband was ordered to pay all school expenses for the children ‘as and when they fall due, including all associated or related charges or expenses’ (at [12]).

[page 403]

In Gonzales and Garcia [2011] FamCAFC 49 the husband stopped making repayments of a mortgage he had been paying for six years on a property bought by the wife as a home for herself and the two children after separation, whereupon the wife amended her property settlement claim by seeking an interim order for maintenance to cover those repayments. Kemp FM dismissed that application and the wife appealed to the Full Court (May, Ainslie-Wallace and Watts JJ). In the meantime the mortgagee exercised its power of sale. The Full Court said (at [16]–[18]):

The wife said that the house had been sold and contends that the net proceeds will be in the vicinity of $90,000. The wife’s submission is that although the house has been sold, she has suffered financially because of the husband’s failure to meet the mortgage payments. The wife will seek a readjustment in her favour on a final hearing. She contends that this is an issue to be determined between the husband and the wife and that there are remedies available to her. In considering the application, the Federal Magistrate said at para 110: Having heard the evidence of the husband, the court is of the view that the husband does not have the ability to pay the sums sought to be ordered to be paid by the wife to reduce the mortgage debt to the NAB or to meet the ongoing commitments to that Bank under the mortgage. The Court is of the view that the subject property will need to be sold and any equity left would be the subject of the ongoing property dispute between the parties. Given the husband’s now asserted position with respect to the subject property, the only remaining assets may be superannuation.

This paragraph of the judgment seems to suggest that the Federal Magistrate determined the application to finality, leaving only a consideration of how the net proceeds of the house, together with the husband’s superannuation could be divided. The Full Court said (at [56] and [58]–[59]): The Federal Magistrate made several errors. These include his assessment of the husband’s financial circumstances at the time of the hearing before him and in addition a failure to consider the husband’s capacity to pay maintenance to the wife. … The wife’s application for final orders includes an application for lump sum spousal maintenance. The wife could properly apprehend, as a result of the conclusion

reached by his Honour that she would have little hope of convincing his Honour in the final hearing that the husband has an earning capacity that would support any order for spousal maintenance. The Federal Magistrate seems to have concluded the application for final orders would only deal with property under s 79 [FLA], being the husband’s superannuation and any equity left after the sale of the property. The Federal Magistrate erred in reaching this decision. The Full Court also said (at [67]): [W]e are of the view that his Honour’s acceptance of the husband’s asserted financial position was against the weight of the evidence before him to the extent that it impugns the exercise of his discretion. The Full Court proceeded to examine evidence before the Federal Magistrate that suggested ‘an income or earning capacity considerably greater than’ the $92,000 gross ($68,000 net) per annum claimed, including an application by the husband [page 404] for a residential tenancy giving his net weekly income as $9,000 ($468,000 net per annum). The Full Court said (at [78]–[79]): The Federal Magistrate had apparently reached the conclusion that what the husband wrote on his residential tenancy application mistakenly confused a question about personal weekly net income with a question about personal monthly net income. This conclusion is fragile given the husband had an opportunity in the questions asked of him by the wife … to say that he made that mistake and he did not do so. His response was that what was being mistaken was

company weekly income, all of which was not his. By inference, it can be said that the weekly figure was correct; however the monies were not entirely the husband’s personal monies. The Full Court also referred to financial statements for two companies showing income from medical practice fees and medical practice respectively amounting to $556,000 gross, and to the wife’s assertion that the husband was entitled to all of that income, and said (at [89]): Although the Federal Magistrate recorded the wife’s assertion that the husband is the owner and operator of both A Company and P Company, his Honour did not attempt any analysis of what benefits the husband receives from those companies, nor the way those companies had been used to distribute income that has been received as a result of them employing the husband. The Full Court also referred to the wife’s claim that the husband had failed to disclose that he was living in a de facto relationship with ‘Ms M’ (being relevant to s 75(2)(m) of the FLA) and the Federal Magistrate’s failure to examine the moneys Ms M was receiving from the companies, saying (at [95]): This is important because it is clear that there is a significant difference in monies earned by the companies and money distributed to the husband and it is likely monies paid to Ms M account for a large part of that difference. The Full Court held that the husband’s earning capacity had not been considered by the Federal Magistrate either. The appeal was allowed.

Cessation of maintenance orders Death of the beneficiary of a maintenance order 7.69 Section 82(1) of the FLA provides that an order for maintenance ceases to have effect upon the death of the beneficiary of that order. This section does not, however, prevent the estate of the beneficiary from claiming the arrears of maintenance due under an order at the date of death: s 82(8).

Death of the person liable to make payments 7.70 Section 82(2) of the FLA provides that an order with respect to the maintenance of a party ceases to have effect upon the death of a person liable to make payments under the order. This rule does not apply, however, in relation to an order made before 25 November 1983, if the order is expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had [page 405] not expired at the time of the death of the person liable to make payments under the order. In either of those circumstances, the order is binding upon the legal personal representative of the deceased person.

Remarriage of the beneficiary of a maintenance order Remarriage prior to application for maintenance 7.71 Section 82(4) of the FLA provides that an order with respect to the maintenance of a party ceases to have effect upon the remarriage of the party unless in special circumstances a court having jurisdiction under the FLA otherwise orders. The subsection has no application where the remarriage occurred prior to an application for maintenance being made; however, the financial circumstances of the new marriage would be relevant in such a circumstance: s 75(2)(m). Under s 82(6), the beneficiary of spousal maintenance must without delay inform the person liable to make payments of the date of her or his remarriage. Any money paid after a remarriage may be recovered by the person liable to make payments under s 82(7). Prospect of remarriage after application for maintenance 7.72 In making an order for spousal maintenance the court will consider the prospect of remarriage of the beneficiary as a general statistical factor, unless there is a definite relationship that should be considered. In circumstances where there is a definite prospect of remarriage the court may make an order for periodic maintenance, rather than an order for a lump sum. The pathway chosen by the court will depend very much on the circumstances of the parties before it; it will be cautious about making any inappropriate

judgment as to whether a party is likely to remarry: Marriage of Woolley (No 2) (1981) 6 Fam LR 577; FLC ¶91-011.

Variation of maintenance orders 7.73 Section 83 is titled ‘Modification maintenance orders’. It provides:

of

spousal

(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage: (a) made by the court; or (b) made by another court and registered in the firstmentioned court in accordance with the applicable Rules of Court; the court may, subject to section 111AA: (c) discharge the order if there is any just cause for so doing; (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; (e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

[page 406] (1A)The court’s jurisdiction under subsection (1) may be

exercised: (a) in any case — in proceedings with respect to the maintenance of a party to the marriage; or (b) if there is a bankrupt party to the marriage — on the application of the bankruptcy trustee; or (c) if a party to the marriage is a debtor subject to a personal insolvency agreement — on the application of the trustee of the agreement. (2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied: (a) that, since the order was made or last varied: (i) the circumstances of a person for whose benefit the order was made have so changed; (ii) the circumstances of the person liable to make payments under the order have so changed; or (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative — the circumstances of the estate are such; as to justify its so doing; (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; (ba) in a case where the order was made by consent — that the amount ordered to be paid is not proper or adequate; (c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.1

(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part. (4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician. (5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living. (5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously

[page 407] made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to: (a) the other party; or (b) any other person for the benefit of the other party. (6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate. (6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-

mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act. (6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act. (7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75. (8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

In Blake and Blake [2011] FMCAfam 796, during property proceedings initiated by the wife, an order was made by consent requiring the husband to pay the wife interim spousal maintenance of $5,300 per month. Six months later the husband was declared bankrupt on his own petition and two months later he filed an application for the discharge of the maintenance order, an application opposed by the wife on the ground that as a bankrupt he lacked standing to bring such proceedings. Connolly FM reviewed the relevant law and concluded (at [14]– [16]): With respect to the issue of standing, the authorities submitted by both parties support the view that, despite bankruptcy, a bankrupt party has standing to bring an application under the Family Law Act 1975, or applications, that are personal in nature. In broad terms, and as a matter of principle, bankruptcy is no bar to a

bankrupt maintaining claims on his or her own behalf. I agree with the submissions made by counsel for the applicant husband that proceedings that are personal in nature are those which do not affect the quantum of the bankrupt estate, and that principle was recognised in Cummings v Clearmont Petroleum (1996) 185 CLR 124. It seems to me that the crux of the argument relies on the interpretation of s 83(1A)(b), which allows the trustee in bankruptcy to bring an application to vary a spousal maintenance order, at his or her initiative if there is a bankrupt party to the marriage. It doesn’t, however, preclude a bankrupt spouse from making such an application. I am satisfied that the court’s jurisdiction under subs 83(1A)(a) may be exercised in any case in proceedings with respect to the maintenance of a party to the marriage. And that is the case in this matter. It also provides, under subs 83(1A)(b), if there is a bankrupt party, [page 408] as there is in this case, then an application can be made by the bankruptcy trustee. Furthermore, in the circumstances of the current application, vested property will not be affected. While the court is required to consider or take into account the matters set out in s 75(2), it does not mean that the application affects the vested bankruptcy property. The 2005 amendments do not expressly address the situation involving the bankrupt’s non-vested property and applications personal to the bankrupt. It is therefore the position that the previous legal principles which allow a bankrupt party to prosecute a matter personal to him remain undisturbed. I am satisfied further, that there is nothing

in the Act to preclude the bankrupt party from making the application, and the Act is silent on the issue of proceedings personal in their nature, and as they do not affect the vested property, then the matter can proceed. With respect to the issue of joining the trustee in bankruptcy and the Registrar of the Child Support Agency, it is clear from the letters which have been served on each, with the husband’s application, that neither have any interest in being involved. The matter should be listed for a hearing accordingly.

In Trent and Trent [2014] FamCA 95 the ‘change of circumstance’ related to a change of residence for the wife and children. The wife received from the husband interim spousal maintenance in the sum of $500 per week. In addition, pending a child support assessment, the husband was paying $750 to the wife by way of child support. The wife made an application for the interim order already in force to be varied by way of a further interim order. She sought the variation of spousal maintenance on the grounds that rather than continue living with her parents, she wished to rent a property for herself and the three children of the marriage. She sought the sum of $2,813 per week but Rees J reduced that amount to $1,097 payable within seven days of the wife producing to the husband a lease of residential property, executed by the property owner, in which the wife proposed to live. See also Ezard and Ezard [2017] FamCA 26; and Carman and Carman [2017] FamCA 99 in which the wife sought a continuation of spousal maintenance which had been awarded ‘until further order’ on 15 July 2016. The wife’s application was to have ‘until further order’ varied to ‘indefinitely’ on the basis that one of the children of the marriage was diagnosed with a serious medical condition. This involved the

wife in increased expenses in relation to caring for the child. The application of the wife was dismissed. Clearly she could no longer support herself and this was recognised by the court, but equally it was acknowledged that the husband did not have the capacity to meet the shortfall.

7.74 The court may only make an order increasing or decreasing the amount of a maintenance order if it is satisfied that: the circumstances of the person liable to make payments under the order have changed: Marriage of Mottee (1976) FLC ¶90-099; or the cost of living (having regard to changes in the Consumer Price Index) has changed to an extent that justifies variation of the order; or [page 409] the circumstances of a person for whose benefit the order was made have changed; or the court is satisfied that material facts were withheld from the court which made or varied the order in question, or that material evidence previously given was false. Change in the cost of living is only a basis for variation of an order if at least 12 months have passed since the order was made or last varied. The authorisation of the taking into account of a change in the cost of living is no doubt intended to overcome the judicial difference of opinion which was

begun by the decision in Marriage of Milner (1963) 3 FLR 499, where Selby J declined to take into account variations in the cost of living. Problem question Nancy, a barrister, is separated from her husband Danny. Danny is a tennis coach who, until recently, ran a business called ‘Danny’s Tennis Tips’. It is a business he conducts as a sole trader. They were married for 12 years and there are two children of the relationship, Bianca and Simon, who are 5-year-old twins, presently attending the Williamstown Grammar School. Nancy and Danny are both 38 years of age. However, while Nancy is in excellent health, Danny was diagnosed with ‘a slipped disc’ in his back. This prevents him from standing for long periods of time and he cannot do any exercise that involves twisting. Surgery is a possibility, but the chances of a total recovery are less than 50 per cent. It is not clear when he will be able to return to coaching in any meaningful capacity. Since their separation, Danny has been struggling to make ends meet, relying on social security benefits in the sum of $250 per week. His rental accommodation alone costs $170 per week and his considerable medical expenses are driving him into serious debt. As his business held no significant assets or fixed term contracts that could be assigned to a third party, it only generated an income if he was able to work. He has few assets apart from the former matrimonial home and an old 1989 SAAB convertible which is in considerable need of repair. Meanwhile, Nancy is earning on average $3,000 net per week and is living in the former matrimonial home which is unencumbered. Shortly prior to separation, the parties had acquired a new SAAB convertible on hire-purchase and Nancy

has continued making the payments of $500 per week. Bianca and Simon have remained living with Nancy and have continued to attend the Grammar School. Since the separation, Nancy has been meeting their financial needs. Their food, schooling, afterschool care and other expenses amount to $400 per week. She also has the ongoing responsibility for their cats who require a cat-sitter during business hours at a cost of $200 per week, plus $80 per week in food. It has been a bitter separation and Nancy is proving reluctant to negotiate a reasonable settlement. Danny has recently issued an application for final orders; however, he now seeks your advice as to the likely success of an application for spousal maintenance, if he were to issue one at this time.

[page 410]

Suggested answer A prima facie view of these facts would tend to indicate that there is a strong probability that Danny will be granted an order for spousal maintenance, at least on an urgent basis or ‘pending final property orders’. This, however, will depend on establishing the necessary criteria discussed below. 1. Jurisdiction Can Danny satisfy the jurisdictional requirements to institute proceedings seeking spousal maintenance? Spousal maintenance proceedings are included in the definition of ‘matrimonial cause’ in s 4(1) of the FLA, which identifies the types of proceedings that may be instituted between parties to a marriage.

Section 39(4)(a) stipulates that the jurisdictional requirements for the institution of such proceedings are that on the date the application is filed or made to the court, one party to the marriage is either an Australian citizen, ordinarily resident or present in Australia. We would need more information to establish whether Nancy or Danny are citizens; however, from the facts it would appear that they are ordinarily Australian residents. Further, if Danny were present in Australia when his application was filed or made to the court, that would provide the necessary jurisdictional nexus. Further, jurisdictional limits are established by s 44(3) which requires applications made subsequent to the divorce order to be made within 12 months from the date of the divorce order having taken effect, unless leave of the court is sought. The facts indicate that the parties do not have a decree nisi at this point and, as such, s 44(3) does not appear to limit Danny’s options at this stage. The limit in s 44(3) is directed at achieving one of the main objects of the property provisions of the Act, namely, finalising the financial relations between the parties: s 81. There has, however, been a clear movement away from the strict application of this principle and the court is, for instance, more readily prepared to make orders for periodic spousal maintenance extending beyond final property orders: Marriage of Best (1993)16 Fam LR 937; FLC ¶92-418. In Marriage of Best, the court held that the ‘clean break principle may have been taken to extremes in the past and requires careful reconsideration in light of the changing economic and social circumstances’: at FLC ¶80,296. As the Full Court affirmed in Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600, it could be submitted on Danny’s behalf that while consideration has to be given to the s 81 ‘clean break’ principle, it must give way to the requirements of s 74 once the threshold requirements have been met.

Spousal maintenance proceedings generally cannot be instituted where one or both of the parties has died (s 82(1) and (2)) or where a s 87 maintenance agreement subsists and the right of one or both parties to apply for maintenance has been surrendered. Neither of these situations arises in this case. 2. Types of maintenance orders Pursuant to s 74 of the Act, the court is entitled to ‘make such order as it thinks proper for the provision of maintenance’, that is, an order that is appropriate in [page 411] the circumstances: Marriage of Wilson (1989) 13 Fam LR 205; FLC ¶92-033. This is the guiding principle in spousal maintenance cases: Bevan, above. Section 80 enumerates a number of options open to the court in making orders for spousal maintenance, including ordering a payment by one or more lump sums, periodic payments, or a specified transfer of property. Given that there are no facts provided in the scenario to indicate that the parties have assets such as savings or investments which could be directed to Danny by way of lump sum spousal maintenance, periodic payments are more likely to be ordered. While at the present time it would be more important for Danny to make an application for urgent spousal maintenance (s 77) or for maintenance pending final property orders, it is likely that should his dire situation and Nancy’s prosperity continue, he will also be in a position to seek lump sum spousal maintenance, which would be denoted as such in the final orders (s 77A), or an order for ongoing periodic spousal maintenance. 3. Criteria — the two-limbed test in s 72

Under FLA s 72, Nancy is liable to maintain Danny if: (1) he is unable to support himself adequately, whether: (a) by reason of having the care and control of a child of the marriage who is under 18; or (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason, having regard to the s 75(2) factors; and (2) she is ‘reasonably able’ to pay. When considering the first limb of s 72, the meaning of ‘adequate support’ must first be ascertained. The ‘no fettering’ principle stipulates that while pre-separation lavishness is not automatically the standard, neither is subsistence living, and one is not required to use up capital assets before being considered incapable of adequately supporting oneself: Bevan; Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601. Further, the word ‘adequately’ imports ‘a standard of living that is reasonable in the circumstances’: s 75(2)(g); Marriage of Nutting (1978) 4 Fam LN N7; FLC ¶90-410. Thus, while the pre-separation standard of living is relevant, funds will rarely be available to provide both parties with the same standard of living enjoyed by the parties when they were sharing expenses. Looking to the second limb of s 72, it must be noted that when determining whether Nancy is ‘reasonably able’ to pay, the court is not restricted to considering Nancy’s actual income but also her potential earning capacity as well as assets and other resources: Marriage of Beck (No 2) (1983) 8 Fam LR 1017. 4. Danny’s application for urgent spousal maintenance or maintenance pending final property orders Application of s 75(2) factors The two-limbed test in s 72 must be applied in the context of the

s 75(2) factors. Nancy and Danny’s situation consideration of the following s 75(2) factors.

requires

[page 412] Age and state of health of the parties: s 75(2)(a) While both parties are only 38 years of age, the facts indicate that Danny has a serious back injury which, at least in the short- to midterm, prevents him from working and it is not clear when he will be able to return to appropriate gainful employment. The fact scenario indicates that Danny has considerable living expenses including rent and medical expenses — this situation is exacerbated by limited income. To a certain degree, Danny’s case may be likened to the case of Bevan where the wife had a diminished work capacity due to ill health (mental health in this particular case). 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: s 75(2)(b) As noted above, if a spousal maintenance order is to be made, it is necessary to establish both a need on behalf of the applicant and the payee’s ability to pay. In considering this question, pursuant to s 75(2)(b) or s 75(2)(o) the court will look at each party’s actual and potential earning capacity: DJM v JLM (1998) 23 Fam LR 396. If Danny was generating or had reasonable prospects of earning sufficient income to provide for his needs, it is unlikely that a maintenance order would be made requiring Nancy to support him financially: Mitchell; Marriage of Corner (1978) 4 Fam LN N1; FLC ¶90-438. The fact scenario indicates that Danny has insufficient income to cover his expenses as he only receives $250 per week, $170 of which is used for rent. As this leaves only $80 to cover his general food, living and considerable medical expenses, and he has no significant assets that are

income-producing or readily available for sale nor prospects of gainful employment in the near future, Danny could probably establish that he has insufficient means to support himself adequately. Nancy’s prospects, on the other hand, seem somewhat more positive. She has the benefit of the unencumbered former matrimonial home, a flourishing career, with the physical and mental capacity to continue to work. Further, she has a significant surplus after tax and payment of her weekly needs, some of which (for example, the expenditure on the cats) could arguably fail the test of reasonable expenditure, as will be discussed below. Care and control of the children and necessary commitments incurred to support themselves or the persons they have a duty to maintain: s 75(2)(c) and (d) The fact that Nancy has the care and control of Bianca and Simon will be a relevant consideration when determining the amount of maintenance. As highlighted above, the notion of ‘necessary commitment’ gives rise to requirements reasonably necessary to maintain a standard of living which in all the circumstances is reasonable: Marriage of Lawrie (1981) 7 Fam LR 560; FLC ¶91-102. The children’s education, childcare, food and other expenses totalling $400 do not appear to be unreasonable; they would most likely qualify as a necessary commitment given the preseparation circumstances and Nancy’s current lucrative financial position. However, the $500 car repayments and the $280 weekly expenditure on her cats are unlikely to be considered commitments necessary to support herself or the family, given that Danny is having such difficulty maintaining his position. [page 413] Eligibility of either party to receive a pension or like benefit: s

75(2)(f) While Danny is in receipt of social security benefits, s 75(3) indicates that when exercising its jurisdiction pursuant to s 74, the court is to disregard any entitlement to such benefits if that person’s maintenance is under consideration. As the only income he earns is to be disregarded, he would clearly satisfy the requirement of being unable to support himself adequately. Standard of living that is reasonable in all of the circumstances: s 75(2)(g) During their marriage and prior to Danny’s illness (which arose post-separation), Nancy’s expenditure on the car and cats may have been reasonable, given each party’s income and joint living expenses. In the postseparation circumstances where Danny no longer has an earning capacity or income stream and is incurring substantial medical expenses, it seems that the standard of living to which Nancy was accustomed prior to separation is no longer sustainable: Bevan and Mitchell. Consideration of the effect or proposed effect of a property adjustment between the parties: s 75(2)(n) Section 75(2)(n) requires the court to take into account the effect of any order or proposed order made under s 79: Bevan; Marriage of Anast and Anastopoulos (1982) 7 Fam LR 728; FLC ¶91-201. When considering urgent applications or applications pending final orders, it may be difficult to assess the effect or proposed effect of a property adjustment between the parties. In Danny’s case, he would seek to argue that such a consideration is of more limited assistance at this stage as, pending the valuation of the property and assessment of the contributions, he is unable to adequately support himself and Nancy has the capability to pay maintenance. Even if greater consideration were to be given to a proposed property adjustment, it would be clear that the pool of assets is large enough to enable a division whereby even if Danny was not able to work, he would be able to adequately support himself with access to his share of the asset pool. Furthermore, Danny

would not be required to deplete his meagre resources in order to support himself until his return to work. In summary, Danny’s financial situation is acute, and due to his physical incapacity he has been and will for the foreseeable future be unable to undertake gainful employment as a tennis coach. As a result, he is experiencing great difficulties supporting himself at even a modest level and is, in fact, generating considerable debt. Having regard to his situation and given that final property settlement is not likely to take place for some time, it is probable that Danny will be considered to be unable to adequately support himself at the present time on the basis of s 72(b) in light of the s 75(2) factors: Bevan; Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC ¶90-890. Although Nancy has the care of the children and incurs expenses in the sum of $1,180 per week, she has a surplus of $1,820 (before tax) per week and this would tend to indicate that she has a capacity to make some measure of spousal maintenance payments on an urgent basis or ‘pending final hearing’. 5. Final property orders Again, when considering the likely final property orders pursuant to s 79 of the Act, whether Danny is entitled to a further order for spousal maintenance will depend on whether his needs are adequately catered for by the s 79 orders. As mentioned above, s 75(2)(n) requires the court to take into account the effect of any order or [page 414] proposed order made pursuant to s 79: Bevan; Anast and Anastopoulos. As such, when the court is to consider the question of property adjustment and spousal maintenance contemporaneously, it is required to reach a decision in regard to the property orders prior to considering any application for

maintenance: Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595. A ‘four-stage approach’ was adopted in Clauson in determining property/spousal maintenance cases. On this basis, if the property adjustment does not provide Danny with the ability to maintain himself adequately, then the court will consider the maintenance application in light of the final property order, determining to what extent, if any, it should impact upon the quantum or form of a maintenance order. While we would require further information, the facts indicate a moderate pool of assets. It is unlikely that the division of the asset pool would sufficiently meet Danny’s long-term needs, given that the only real assets they have is an unencumbered house, a heavily indebted hire-purchase car and a business with no fixed term contracts. As noted above, Danny will not be required to deplete an already minimal capital amount to enable Nancy to avoid paying spousal maintenance. Should Nancy continue to earn a similar income it is conceivable that, based on a s 75(2) inquiry, she will be considered to be ‘reasonably able’ to maintain Danny. Therefore, it is probable that a periodic maintenance order would be made in addition to the s 79 property distribution for a period of time, after which the court, subject to the medical evidence, may deem that Danny could be reasonably expected to ‘reenter the workforce at a level sufficient to provide for his own day to day support’: Marriage of Rosati (1998) 23 Fam LR 288. The quantum of such an order would very much depend on evidence as to medical, living and motor vehicle expenses, and given that the social security payments Danny receives must be disregarded, it is likely that an order in excess of $250 would be warranted.

Further discussion 1.

What is the meaning of ‘adequately’ in relation to spousal maintenance?

2.

Does the need for spousal maintenance demean those in receipt of it?

3.

Suggest societal changes that might alleviate the need for spousal maintenance.

4.

‘Violence should be taken into account whenever relevant in an application for spousal maintenance.’ Discuss.

5.

‘Other forms of disloyalty, apart from violence and egregious conduct, should be taken into account in an application for spousal maintenance.’ Discuss.

_______________________ 1

See Sadlier and Sadlier [2015] FamCAFC 130 in which the husband successfully appealed an order that he pay spousal maintenance to the wife in circumstances where the wife had not provided any documentary evidence of her finances to the husband.

[page 415]

8 Distribution of Matrimonial Property No one shall be arbitrarily deprived of his property. Universal Declaration of Human Rights 1948, Article 17.2

Introduction Preliminary observations 8.1 Part VIII of the Family Law Act 1975 (Cth) (FLA) provides for the division of the property of parties to a failed marriage. In Western society, ownership of property is sacrosanct. For many, it denotes success and status. In particular, ownership of a family home is encouraged as the ideal. It is hardly surprising, therefore, that the breakdown of a marriage so often provokes intense disputes as to ownership and distribution of property formerly shared by the parties. Many disputes are settled without recourse to litigation. Nevertheless, a number end up before the Family

Court for consideration and judgment. This has led to a myriad of reported cases. In this chapter, we have space only to include those decisions integral to an understanding of the principles and philosophy underlying the division of property pursuant to FLA s 79. It is not, however, mandatory to have recourse to a judicial process. Parties to a marriage can agree between themselves as to how property is to be divided without the need of instituting proceedings. Such parties benefit in a number of ways: they greatly reduce the financial and emotional costs of legal proceedings; their continuing relationship as parents, if there are children of the marriage, is likely to work better; they are able to more readily make a new life for themselves in the future; the resulting improvement in communication bodes well for a more amicable resolving of disputes in the future; [page 416] it saves time and money if the parties reach agreement between themselves. They also know exactly what each will obtain by way of settlement, without the uncertainty involved in waiting for a decision of the court.

Private agreements, consent orders and binding financial agreements regarding

property and maintenance 8.2 As already stated it is not necessary to invoke the jurisdiction of the court in order to reach a property division following separation. In fact, parties are encouraged to make these arrangements privately. Broadly, there are three ways in which parties can order their property without involving the court. As we shall see, however, in all circumstances it is not possible to conclusively oust the jurisdiction of the court. 8.3 The first, and most straightforward, method for the division of property after separation is by private informal agreement. 8.4 The second method for resolving property and/or spousal maintenance matters is by way of consent orders: Family Law Rules 2004 (Cth) r 10.15(1)(b). In effect, these orders consist of a private agreement which is filed, scrutinised and then sealed as a court order if considered to be just and equitable. 8.5 The third type of private property arrangement are known as binding financial agreements made pursuant to Pt VIIIA of the FLA which enables the parties to make a property agreement before (s 90B), during (s 90C) and after the marriage: s 90D. The provisions relating to binding financial agreements were introduced by the Family Law Amendment Act 2000 (Cth). These provisions enable parties to make enforceable financial agreements which (at least formally) oust the jurisdiction of the court pursuant to s 79: see s 71A. Since 28 December 2002, these agreements can also make provision for superannuation entitlements.

Binding financial agreements are commonly entered into prior to marriage. When binding financial agreements are made prior to marriage, they are commonly known as prenuptial agreements. As noted above, the agreement can cover how in the event of marriage breakdown the financial assets will be divided. The agreement can also deal with spousal maintenance and any other incidental or ancillary matters. Colloquially these agreements are referred to as ‘prenup’ or ‘post-nup’. 8.6 There are a number of formalities with which the agreement must comply: s 90G. These include: the agreement must be in writing; it must be signed by both parties; it must state that both parties received independent legal advice (and the lawyers must sign a statement to this effect) regarding the effect and operation of the agreement on their legal rights and the advantages and disadvantages of entering into the agreement. A copy of the statement must be given to each spouse; [page 417] the agreement must state that the agreement has not been terminated or set aside by a court; and each party must receive a copy of the agreement. In order for such an agreement to be binding, it does not need to be filed or scrutinised by the court.

Although the agreement is expressed as being binding, the court can overturn the agreement in a number of situations. The utility of financial agreements, in terms of providing certainty to the parties, is greatly undermined by a large number of circumstances in which they can be set aside by a court. These circumstances include (s 90K) where: (a) the agreement was obtained by fraud (including nondisclosure of a material matter); or (aa) a party to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or (ii) with reckless disregard of the interests of a creditor or creditors of the party; or (ab) a party (the agreement party) to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or (iii) with reckless disregard of those interests of that other person; or (b) the agreement is void, voidable or unenforceable; or (c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or

(d) 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; or (e) in respect of the making of a financial agreement — a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or (f) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or (g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB. (See this section in its entirety).

[page 418] Additionally, a financial agreement cannot exclude the jurisdiction of the court to make an order in relation to spousal maintenance where the effect of the agreement would be that a party was unable to support himself or herself without an income-tested pension, allowance or benefit: s 90F. Given that many marriages endure for many years and the limited capacity for people to foresee future events, paras (c)

and (d), in particular, provide ample scope for the court to set aside financial agreements. The first case which considered s 90K is Australian Securities and Investments Commission v Rich (2003) 31 Fam LR 667; FLC ¶93-171 where it was held that the court did not have jurisdiction pursuant to ss 90K(1)(b) and 90KA (or any other power) to set aside a financial agreement made under s 90C. This application was brought not by a party to the agreement, but by a third party creditor. The following matter indicates the importance of drafting a financial agreement in a manner acceptable to the Family Court.

Kostres and Kostres [2009] FamCAFC 222; (2009) 42 Fam LR 336; FLC ¶93-420 before the Full Court of the Family Court (Bryant CJ, Boland and Jordan JJ) related to the manner in which terms of a financial agreement made under Pt VIIIA of the FLA should be construed, and the circumstances which may lead to such an agreement not being enforced. This was an appeal from orders of Wilson FM. The parties executed what purported to be a binding financial agreement (‘the agreement’). The parties’ stated intention was for the assets acquired during the marriage with joint funds to be shared between them pursuant to the terms of the agreement. The agreement was entered into on the basis of the parties’ mistaken belief that Mr Kostres (the husband) was a bankrupt. This mistaken belief led to the parties acquiring assets that were not purchased in the parties’ joint names, rather by the wife. The parties did not advise their lawyers about the husband’s bankruptcy status and this factor was not taken into account in the terms of the agreement. The wife was also a trustee of a trust which held beneficially certain assets acquired during the marriage, including real property. The husband sought that the agreement be enforced to the extent that the wife pay him a sum

representing one half of the net assets acquired during the marriage (which included, inter alia, real property and goodwill in a business) (at 337). Wilson FM ordered that the husband be paid an amount representing a portion of the goodwill in the business, but declined to make the orders about the real property held by the trust. The husband appealed on the grounds that Wilson FM had incorrectly interpreted and applied the terms of the agreement. Alternatively, the husband argued that if the property held on trust fell outside the terms of the agreement, that property should be divided between the parties pursuant to s 79 of the FLA. The wife filed a cross-appeal in which she asserted the Federal Magistrate erred in determining that the goodwill of the retirement hostel business was caught by the financial agreement, and thus in error in making any order in the husband’s favour, other than a monetary sum to reflect his half interest in the unit. Implicit in the wife’s resistance to the husband’s appeal, and the agitation of her cross-appeal, is the proposition that she [page 419] has acquired the sole entitlement to the business and the assets of the trust under the provisions of the financial agreement. The Full Court allowed the appeal, dismissed the cross-appeal, set aside the financial agreement, and returned the matter for rehearing (at 338). The Full Court analysed a number of long-standing authorities of the High Court of Australia and the Family Court about the meaning of the word ‘acquire’. The Full Court noted that the parties did not agree about what was meant by the use of the words ‘acquired by joint funds’ in the terms of the agreement.

The Full Court stated that it could not correct the terminology with appropriate certainty to give effect to the parties’ agreement. The Full Court stated that the common law principles of construction could apply and be used to avoid absurdity in the terms of the agreement. In the circumstances of this case, however, it was impossible (accurately) to discern what the intention of the parties was at the time of the making of the agreement and the terms of the agreement were ambiguous. The Full Court found the terms of the agreement were ineffective and that Wilson FM’s orders enforcing the terms of the agreement constituted appealable error. The Full Court also concluded that Wilson FM should have dealt with the property of the parties held on trust pursuant to s 79 of the FLA. In discussing the importance of careful drafting of financial agreements under Pt VIIIA of the FLA and in particular the agreement before them, the court stated (at 338–9): (x) The ambiguities lead to the conclusion that the whole agreement is void for uncertainty and should be set aside. Thus the appeal must be allowed and the cross-appeal dismissed. The effect of this conclusion is that the adjustment of the parties’ property will be determined under s 79 of the Act. (xi) This case has thrown into sharp focus the particular care needed to be exercised by parties entering into a financial agreement under Pt VIIIA (and the significant responsibilities on the legal practitioners drafting and advising on the agreement) if the agreement is to be binding and enforceable in the event their marriage, for any reason, breaks down. Agreements designed to avoid costly litigation can have expensive consequences if the intention of the parties is not readily discernable from the drafting of the agreement.

Duress, undue influence and unconscionable conduct are ugly terms, inferring as they do notions of dominance by a stronger party over the will of a weaker party to whom is caused detriment.

In Saintclaire and Saintclaire [2015] FamCAFC 245 before Strickland, Murphy and Kent JJ the husband appealed against orders of Ryan J which set aside a financial agreement entered into between the parties prior to their marriage in 2009. The wife opposed the appeal. At trial, Ryan J in Saintclaire and Saintclaire [2013] FamCA 491 at [114] found that the application by the wife should succeed and the financial agreement be set aside: [page 420] The effect of my findings that the financial agreement is vitiated by undue influence and unconscionable conduct is that at equity I would declare that there is no financial agreement. In reaching this decision her Honour considered what she perceived to be the power of the husband in relation to the ‘disadvantage’ of the wife: He was in a vastly superior financial position and she was reliant on her being able to re-establish her career balanced with parental responsibilities, an eventual inheritance and him being willing (but not required) to settle property on her. There is no doubt that this transaction should not have proceeded. The wife has

established that the husband knew of the facts that put her at a ‘special disadvantage’, which included her desire to continue the family unit and her love for him. This financial agreement is tainted by unconscionable dealing: at [110]–[111]. In addressing the indisputable fact that the wife had received legal advice to the effect that the binding financial agreement overwhelmingly favoured the husband, Ryan J acknowledged (at [112]): The advice she received financial agreement was undoubtedly correct. That husband’s advantage and apparent from its terms.

from her solicitor that the to her disadvantage was this agreement was to the the wife’s disadvantage is

Held: Appeal allowed. In setting aside the orders of Ryan J and therefore allowing the appeal of the husband, the Full Court found that the reasoning of Ryan J was fundamentally flawed, stating (at [58]): If the wife was to succeed in a case founded in actual undue influence, it was necessary for her to prove facts that established that in making the agreement, she was not exercising her free and independent will. In our view the evidence before her Honour falls a long way short of establishing the requisite ‘influence over the mind’ of the wife by the husband. Indeed, we are unable to see any evidence led before her Honour from which any such conclusion could be drawn reasonably. The Full Court then turned their minds to presumed undue influence in which the dominant party (husband) holds a position of trust or confidence over the weaker party (wife). In that context the Full Court stated (at [59]): If the wife was to succeed in a case founded in

presumptive undue influence, it was necessary for her to prove facts which established that the antecedent relationship between her and the husband was such that the making of their agreement involved the exercise by him of dominion or ascendancy over her will and a concomitant dependence by her upon him or subjection to his will. As with many matters which come before the Family Court, the provision of solid evidence which can withstand crossexamination is vital to success. The Full Court remained unconvinced by the evidence of the wife and the findings of Ryan J, stating (at [60]): We are unable to see any evidence led before her Honour which alleged, much less proved, that the wife was ‘beholden [or] obliged’ to the husband, or ‘disadvantaged’ with respect to him or, indeed, that he exercised any ‘dominion’ over her. Similarly, we are unable to discern any evidence by which the wife alleged, much less proved, that she reposed any trust or confidence in the husband in and about the agreement and its negotiations. [page 421] Again, the Full Court questioned the lack of evidence available to support the findings of the trial judge, saying (at [63]): ‘With respect to her Honour, we are unable to discern the evidentiary foundations for concluding that “the wife was in a position of ‘special disadvantage’ qua the husband”’. Their Honours continued to express their misgivings: We also, with respect, fail to understand the relevance of the finding that the agreement would ‘disentitle the wife

from making a claim for property settlement’ (or the implication apparently inherent within it). Both parties negotiated over seven months, each with the benefit of independent legal advice, for a financial agreement designed to replace a previous agreement to similar effect. If the agreement that both had negotiated and executed was binding, the axiomatic outcome for both parties is that each would be disentitled from making a claim for property settlement. The husband was entitled to press for settlement of the agreement that both parties had sought. In addition, during that time, the wife sought, and ultimately achieved, amendments to the draft agreement which, on her Honour’s findings, were beneficial to her: at [64]. The Full Court also examined whether an error with regard to the application of the incorrect sections of the FLA might vitiate a binding financial agreement, stating: An instrument is to be construed according to the intention of the parties appearing from the whole of its contents and to that end corrections may be made which a perusal of the document shows to be necessary: at [87] … In our view, the agreement, properly construed as a ‘financial agreement’; complies with s 90G and is ‘binding’ within the meaning of that section: at [90].

This topic continues, with a matter that has received leave to apply to the High Court of Australia. Not an easy feat. Later this year the High Court of Australia will make a decision which may have a considerable impact on the way

in which the Family Court views the validity or otherwise of binding financial agreements, whether entered into prior to marriage (prenuptial) or after marriage (postnuptial). On 10 March 2017 Keane and Edelman JJ of the High Court of Australia were asked to grant special leave for an appeal in the matter of Thorne v Kennedy [2017] HCA Trans 54. The appellant seeking leave of the High Court is the wife. There is a long history to this matter, including the fact that the husband is now deceased and litigation is continued by the executors of his estate.

In Kennedy and Thorne [2016] FamCAFC 189 the Full Court comprised of Strickland, Aldridge and Cronin JJ allowed an appeal by the husband’s estate against a decision by Demack J to set aside financial agreements under ss 90B and 90C for duress under s 90K(1)(b). The parties met on an internet dating site in early to mid-2006. The husband was a 67-year-old property developer with assets of $18 million. The wife was 36 and lived overseas. After initially meeting on the internet, the parties commenced speaking with each other on the telephone. They spoke in English and in another language. [page 422] The applicant agreed that the deceased said to her: ‘I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.’ Shortly thereafter, the husband travelled overseas to meet her. Evidence was given that the husband was attracted to Ms Thorne as they shared a religion and could

speak to each other in (language omitted). Although plainly keen to have a relationship, and potentially, another marriage, Mr Kennedy was at pains from the outset to make it clear to Ms Thorne that his wealth was his, and he intended it to go to his children. Ms Thorne was certainly aware of that position from the outset. On 8 August 2007 the husband and wife attended on the husband’s solicitor, Mr Jones, for the purpose of drafting a financial agreement prior to the wedding. Mr Jones spoke only with the husband on this occasion. The same occurred on 14 August 2007. The trial judge found that during these conferences, the husband’s solicitor was adamant that the husband maintained his view that the marriage would only go ahead if the wife signed the agreement. On or around 16 September 2007 (and most likely on 19 September 2007), the husband told the wife that they were going to see solicitors about the signing of some documents. The trial judge found that the wife had known for some time that there would be documents to sign before the wedding. Equally important was the advice given to the wife by her solicitor that the intended agreement was ‘no good’ and should not be signed. Despite this advice the husband and wife each signed a document headed ‘Financial Agreement (Pre-Nuptial Agreement s 90B Family Law Act 1975)’ (‘the first agreement’). A second agreement was signed by both the husband and wife on 20 November 2007, and was headed ‘Financial Agreement (Agreement s 90C Family Law Act 1975)’ (‘the second agreement’). The husband signed a separation declaration in June 2011. The wife filed her initiating application on 27 April 2012, seeking declarations that the agreements be declared non-binding, or alternatively, set aside, or declared void. The wife also sought an

adjustment of property in the order of $1,100,000, along with lump sum spousal maintenance of $104,000. Citing commercial authority in relation to establishing the elements of duress, the Full Court looked at Australia and New Zealand Banking Group Ltd v Karam [2005] NSWCA 344 and Commercial Bank of Australia Ltd v Amadio [1983] HCA 14. The Full Court stated (at [71]–[74]): … There needed to be a finding that the ‘pressure’ was ‘illegitimate’ or ‘unlawful’. It is not sufficient … that … [it] may be overwhelming … that there is ‘compulsion’ or ‘absence of choice’ … ‘[I]nequality of bargaining power’ cannot establish duress … In any event … [t]he … husband was at pains to point out to the wife from the outset that his wealth was his and he intended it to go to his children. The wife was aware of that … and … acquiesced … [T]he trial judge found that the wife’s interest lay in what provision would be made for her [if] the husband pre-deceased her … not what she would receive upon separation … [page 423] In declaring both agreements to be valid, the Full Court concluded (at [165]–[167]): … the fact that the husband required an agreement before entering the marriage cannot be a basis for finding duress. Nor can the fact that a second agreement was required … Again … it was not … the case that the agreements were non-negotiable. Changes were made by the wife through her solicitor, and … were accepted by the husband. However, the real difficulty for the wife in establishing duress is that she was provided with independent legal advice about the agreements,

she was advised not to sign them but she went ahead regardless. The wife successfully sought leave to appeal the decision of the Full Court to the High Court. The court accepted that the issues raised are a matter of public importance and that there is public policy in supporting a marital relationship where that relationship is traditionally one founded on mutual support and maintenance. The wife’s application for leave was successful.

The matter of Parkes and Parkes [2014] FCCA 102 before Phipps J considered a s 90B financial agreement where the wife accepted ‘that all the relevant requirements under [Pt VIIIA] were complied with and so it is binding unless set aside’ but contended that the husband ‘exercised duress or undue influence or engaged in unconscionable conduct and that there ha[d] been a material change in circumstances relating to the care, welfare and development of a child of the marriage’ such that she would suffer hardship if the court did not set the agreement aside (at [46]). The court found the evidence given on behalf of the wife was straightforward. The parties were engaged in December 2007 and a wedding was set for 2008. All arrangements were in place; the reception was paid for by the wife’s parents, the wife stating it cost in excess of $35,000 and her mother saying it cost in excess of $40,000. Invitations had been sent. Phipps J accepted the evidence of the wife that the period leading up to the wedding was hectic (at [53]). Three days prior to the wedding the husband first raised the issue of entering into a prenuptial agreement by handing the wife a prepared agreement signed by him. The husband asserted that

if the wife were not to sign the agreement, the wedding would be off (at [54]). The husband arranged for the wife to see a lawyer the following day in Melbourne. The husband and his mother accompanied her. They waited in the car while the wife met with the lawyer for a 15- to 20-minute appointment. The wife admitted that the lawyer told her she would receive the items listed in Schedule 1 and the husband would retain the items in Schedule 2. She said she recalls the lawyer making a comment about the agreement changing when she and the husband had children. The wife said he did not go through each paragraph of the proposed agreement but rather concluded the conference by saying to her that if she were his client he would tell her not to sign the agreement; she said she replied that she was getting married in two days and she had no choice (at [55]). [page 424] Phipps J said (at [66]): To have the agreement set aside for duress, undue influence or unconscionable conduct the wife needs to establish that she was in a position of special disadvantage known to the husband. The special disadvantage can arise from a particular situation. Phipps J concluded that the wife was in a position of special disadvantage because the wedding would be cancelled which would lead to a traumatic event and the wife declared she had no choice and the husband knew this. The agreement was to no advantage of the wife and she knew this as the lawyer told her so (at [67]–[68]). His Honour stated that the husband knew there was no risk to him as the wife would not refuse to sign the agreement at the risk of cancelling the wedding (at [69]).

Phipps J held that the will of the wife was overborne and the requirements of duress or undue influence were satisfied (at [70]). His Honour went on to say that if the requirements of duress and undue influence were not satisfied because the wife’s consent was independent and voluntary then the requirements for unconscionable conduct were satisfied (at [72]). The agreement was set aside in respect of either s 90K(1)(b) or (e) and under s 90K(1)(d) (at [73]–[92]).

When parties disagree — steps to be followed 8.7 If the parties cannot agree as to how their property and assets are to be divided, they may consider applying to a Family Court of Australia, the Federal Circuit Court of Australia or the Family Court of Western Australia for orders. Sometimes, this may be the only way to deal with a dispute. Even in those circumstances, however, there is a strict procedure to follow before any appearance before a judicial officer is possible. For those parties who cannot agree, the wait may be long and expensive (both in terms of money and emotion). Parties must make a genuine effort to resolve the matter by following the pre-action procedures for financial causes: refer to the Family Law Rules 2004 (Cth) r 1.05 and Sch 1. Throughout this chapter reference will be made to how the court applies FLA s 79 to property disputes.

‘Separate property’ regime

8.8 It is common to use the term ‘matrimonial property’ when discussing family law but, correctly speaking, in Australia we maintain a ‘separate property’ regime. This means that marriage does not create any special rights in the partners to a marriage. In other words, under Australian law, shared ownership of property does not arise automatically from the fact of marriage. Each party to the marriage retains whatever property he or she may have had prior to the marriage, and any property acquired in separate names during the marriage. In many marriages, of course, couples own much of their property jointly. It is common to have joint bank accounts and to hold the matrimonial home as tenants in common or, more usually, as joint tenants. Further, the effects of a ‘separate property’ regime within marriage become somewhat illusory on marriage breakdown. This is because Australia has [page 425] provision for the equitable distribution of property by the Family Court following a marriage breakdown. In reaching a decision under s 79 of the FLA, courts need pay scant attention to the state of the legal title or the existence of equitable interest held in specific property by the parties to a marriage. This last statement should be qualified, however, by noting the relevance of the length of a particular marriage. In a marriage of long duration, legal and equitable titles may count for little in the final analysis. Conversely, in a short marriage, legal and equitable title in a property retains a

closer alliance with the more general rules of common law property ownership. 8.9 As a further qualification, two recent matters before the courts have brought into sharp focus the continuing importance of legal title to property and a sharp reminder that any division of such property must be firmly based on justice and equity. These matters are Stanford and Stanford [2012] HCA 52 (Stanford) before the High Court and Bevan and Bevan [2013] FamCAFC 116 (Bevan) before the Full Court of the Family Court. If the number of academic analyses, citations and judicial discussions by the judiciary of the Family Court is an indication of ‘watershed’ then these matters, especially Stanford, deserve the appellation. Both matters will be discussed throughout this chapter.

The power of the Family Court in the division of property upon the breakdown of a marriage 8.10 The power of the Family Court to alter the property rights of the parties to a marriage is to be found in Pt VIII of the FLA. The main conferring power is contained in s 79. This section, aided by a series of subsections, enshrines a broad discretionary approach to the re-allocation of property in which the court is allowed to take into account both the contributions, financial and non-financial, of both parties to the marriage and the future needs of the parties. Despite the broad discretion under s 79, the power of the court is not without constraints and guidelines. Above all, any order made under s 79 must reflect the demand contained in s 79(2), namely, that the order is in harmony

with principles of justice and equity. In particular, in deciding what order to make, if any, the court must take into account the contributions each spouse has made to the marriage — both to property and to the welfare of the family. It must also consider the respective future needs of the spouses and their ability to maintain those needs. Further, in order that the parties may get on with their lives (to use the modern terminology, ‘move on’), the Family Court aspires, as far as is practicable under all the circumstances, to make orders that will finally end the financial relationships between the parties and avoid any further proceedings between them. This is called the ‘finality’ principle: s 81. This notion of finality, however, attractive as it may be, has lost some of its force within the last decade. This is largely due to the increasing financial resources tied up in superannuation funds. In a very large number of cases coming before the Family Court, such financial resources form a considerable part of the parties’ wealth, but are not always immediately available for distribution. To ignore this source of eventual financial gain would be inequitable. In other words, the ‘finality’ principle may be overridden by the particular financial circumstances in any given case. [page 426]

Who may make an application? 8.11 Before the Family Court is empowered to resolve disputes with regard to the property of a marriage, the applicants must satisfy the jurisdictional requirements set out

in s 39(4) of the FLA. This means that either party to the marriage must be an Australian citizen, ordinarily resident in Australia, or present in Australia on the date on which the application is filed: s 39(4).

Time limit on the institution of property proceedings 8.12 Property or spousal maintenance applications must be instituted within 12 months of a divorce order being granted, unless the court grants leave: s 44(3) and (3A) of the FLA. It is not unusual for leave to be sought to institute an application for maintenance and property out of time, and these provisions are of considerable practical importance. The court, however, will grant leave only if it is satisfied that hardship would be caused to the applicant or a child if such leave were not granted (s 44(4)(a)): Oxenham and Oxenham [2009] FamCAFC 167.

In Spade and Spade [2014] FCCA 653, a matter before McGuire J, the husband sought leave to commence a property settlement between the parties to the marriage pursuant to s 79 of the FLA. The parties were divorced on 24 March 2010 so this was an application out of time. His Honour pointed out that in order for the husband to file an application he would need the leave of the court. The husband explained the delay by giving evidence of his involvement in ongoing civil litigation in the Supreme Court of Victoria in relation to the property of both the husband and wife. He also gave evidence that the pool of matrimonial property to be distributed under s 79 had a gross value of approximately $3 million (at [8]). McGuire J, in referring to the applicable provision of the FLA,

stated (at [3]): Section 44(4) of the Act provides: The court shall not grant leave under subsection (3) or (3A) unless it is satisfied: (a) That hardship would be caused to a party to the relevant marriage or a child if [leave were] not granted; McGuire J (at [3]) continued by citing the matter of Whitford and Whitford (1979) FLC ¶60-612 at [78,134] heard by the Full Court of the Family Court in which it was said: Two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion, the court should grant or refuse leave to institute proceedings. Being mindful of the balance to be struck between alleviating hardship and observing the letter of the law, McGuire J continued (at [4]): Also in Whitford [at 78,146], their Honours observed: The determination how this discretion should be exercised must depend on the facts of the particular case. Due weight must be given to the expressed

[page 427] legislation intendment that ordinarily, proceedings should be commenced within a year from the date of the decree nisi, and the general policy of the Act, which appears from s 44(3) and s 81, that financial relationships between the spouses should, wherever possible, be brought to finality within a reasonable time after the

dissolution of the marriage. Hence, such matters as 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 hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion … Having regard to the nature of the jurisdiction which this Court exercises, this power should be exercised liberally in order to avoid hardship, but nevertheless not in a manner which would render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.

In finding for the husband, McGuire J stated (at [22]): On balance, I am of the view, in all of the circumstances, that my discretion should be exercised in favour of the husband being given leave to bring his application.

In Chaucer and Lake [2013] FCCA 953 Scarlett J accepted the evidence of the husband that the delay of three months in seeking a remedy was a lack of funds to pay a solicitor to act for him. Scarlett J stated (at [32]–[34]): … The delay is not an unduly excessive delay and I am of the belief that the explanation is, at the very least, plausible. I am of the view that the Applicant’s delay in commencing his substantive application in time has been reasonably explained. I have given consideration to the merits of the Applicant’s claim. It is not one where he can expect to receive the major part of the asset pool. It is not one, however, where he could expect to receive nothing or next to nothing, taking into account necessary legal costs. It is not a hopeless case, nor is it a near a hopeless case. It is, in fairness, to my mind, a weak case but, as Kirby J said, in Lindon v Commonwealth of

Australia (No 2) [[1996] HCA 14] even a weak case deserves its time in Court. It is for these reasons that I propose to grant leave, under subsection (3) of s 44 of the Family Law Act 1975, for the Applicant to commence proceedings out of time. See also Star and Star [2013] FamCA 91 in which the husband could not satisfy the hardship criterion because no substantive claim was likely to succeed.

In the matter following, leave to proceed out of time was not required by the applicant seeking a property settlement under s 79 of the FLA.

In McIntosh and Anderson [2013] FamCA 164 before Murphy J the parties had married in Australia but divorced in a foreign country. A property order was made in that country limited to property within that jurisdiction. Upon the wife later applying for property orders under the FLA, the parties agreed that the divorce should be [page 428] recognised under s 104 of the Act but the husband argued that the wife needed to seek leave under s 44(3) before her application could proceed. Murphy J examined the section, its legislative context and use of the expression ‘divorce order’ as opposed to ‘divorce’ (at [29]), saying: The term ‘divorce’ is used in the Act now in connection with a termination of the marriage that may occur by order under the Act and that which might occur in

accordance with an overseas process, including, it might be said, a process that does not involve a court order. By way of contrast, the term ‘divorce order’ is used only by reference to a process involving termination of marriage by order under the Act. [at [37]] In finding that the wife was not constrained by the delay of her application under s 79 Murphy J in effect looked at the rules of interpretation, that is, the intention of the legislators, when he stated (at [69]): I consider that the words of s 44(3) construed in their proper context evidence an intention that the expression ‘divorce order’ as used in that section is confined to orders for divorce obtained in Australia pursuant to an application under the Act. The very strict interpretation of Murphy J in deciding the difference between ‘divorce’ and ‘divorce order’ bestowed a considerable benefit on the applicant wife, but equally raises the question as to how long an applicant can delay before seeking a remedy in the wake of a divorce in a foreign jurisdiction. In addition, in the face of a prolonged delay, the respondent may argue the equitable doctrine of estoppel or assert that the vital principles of equity and justice are being defeated by allowing a tardy applicant to seek a remedy under s 79 of the FLA.

‘Matrimonial cause’ — arising out of the matrimonial relationship 8.13 By virtue of the limited jurisdiction that is conferred on the Family Court under the FLA, property proceedings can be instituted under the FLA only if they constitute a ‘matrimonial cause’ as defined in s 4(1) of the FLA.

The expression ‘parties to a marriage’ is defined in s 4(2) of the FLA. Providing the property proceedings can be said to arise out of the marital relationship, it is not necessary (although usual) that an application for divorce or nullity of the marriage be on foot. The Family Court does not, however, have jurisdiction to adjudicate on each and every property claim likely to arise between the parties to a marriage.

In Dougherty and Dougherty (1987) 11 Fam LR 577 at 581; FLC ¶91-823, with reference to the power of a court to alter property interests under s 79, three members of the High Court stated: Claims grounded solely in contract or tort or equity or otherwise arising by reason of a relationship, for example, of partnership, where the marriage relationship is purely coincidental are not likely to attract the power. See also Stephens and Stephens [2007] FamCA 680.

[page 429] 8.14 The Full Court of the Family Court, in the following case, discussed the question of determining when property proceedings may be said with clarity to ‘arise out of the marital relationship’ between ‘parties to the marriage’.

In Marriage of Kowalski (1992) 16 Fam LR 235; (1993) FLC ¶92342, the Full Court of the Family Court showed a readiness to

interpret the terms ‘marital relationship’, ‘matrimonial cause’ and ‘parties to a marriage’ generously. The parties in that case had been married in April 1974, and separated in September 1974. The marriage was dissolved in 1976. The wife claimed that the parties continued the relationship despite the separation and, in 1980, they resumed living together but did not marry. In 1992 the wife sought and obtained leave from the Family Court to institute property proceedings in relation to the former matrimonial home, which had also been the parties’ residence for most of their subsequent cohabitation. The trial judge granted the wife’s application for an order restraining the husband from interfering with her occupancy of the home. The husband appealed, arguing that the wife’s claim did not arise out of the parties’ marital relationship (and hence was not a matrimonial cause) but out of their de facto relationship. The Full Court dismissed the appeal and held that the proceedings fell within s 4(1)(ca)(i) of the FLA (at 243): Once a marriage has been celebrated between the parties, the entire relationship between the parties, whether arising out of contributions before, during or after the formal tie of marriage was entered into or dissolved, falls within the ambit of Part VIII of the Family Law Act 1975 (Cth) … these parties are before the Family Court because they were once married and hence the proceedings can be said to arise out of the marital relationship, even if the property, the subject of such proceedings, does not. The Full Court plainly saw this approach as both logical and consistent with the provisions of the FLA.

Definition of property 8.15 Section 79 of the FLA relates to proceedings ‘with respect to the property of the parties to a marriage or either of them’, and allows the court to make orders ‘altering the interests of the parties in the property’. At first glance, this seems a reasonably uncomplicated proposition. It contains, however, many elements requiring explanation, some simple and some less so.

Statutory definition 8.16 The term ‘property’ is defined in s 4(1) of the FLA as follows: ‘Property’, in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.

The Family Court has interpreted the term ‘property’ very widely. It includes real and personal property. The inclusion of the term ‘whether in possession or [page 430] reversion’ in the statutory definition refers to the entitlement to property rather than to any property, and is intended to extend, rather than limit, the meaning of ‘property’.

In Kennon v Spry; Spry v Kennon [2008] HCA 56 at 89, Gummow and Hayne JJ, discussing the correct construction of the legislative intent behind the FLA with regard to the division of property, said: The phrase in para (ca) ‘with respect to the property of the parties to the marriage or either of them’ should be read in a fashion which advances rather than constrains the subject, scope and purpose of the legislation. In particular, as statements by this Court illustrate, the term ‘property’ is not a term of art with one specific and precise meaning. It is always necessary to pay close attention to any statutory context in which the term is used. In particular it is, of course, necessary to have regard to the subject matter, scope and purpose of the relevant statute.

See also Romano and June [2013] FamCA 344 in relation to trust assets.

In Marriage of Duff (1977) 3 Fam LR 11,211; FLC ¶90-217; 15 ALR 476, a particularly wide definition of ‘property’ was given. Although the court did not attempt to set out a catalogue of what property may include, it adopted a broad definition from an old English case, Jones v Skinner (1835) 5 LJ Ch 90, in which Langdale MR stated (at 11,218): Property is the most comprehensive of all terms which can be used in as much as it is indicative and descriptive of every possible interest which the party can have. In approving the definition, the Full Court said (at 11,218):

This is a definition which commends itself to us as being descriptive of the nature of the concept of ‘property’ to which it is intended that the Family Law Act 1975 should relate and over which the Family Court of Australia should have jurisdiction to intervene when disputes arise in relation to the property of spouses as between themselves or when the court is asked to exercise the powers conferred upon it under Pt VIII or its injunctive powers under s 114 so far as they are expressed to relate to a property of the party to a marriage. We are of the view that the intention of s 79 is to enable the court to take into account and assess all the property of the parties upon being asked by either of them to make an order altering the interests of the parties in the property. We are further of the view that when s 4 defines property as being ‘property to which the parties are entitled whether in possession or reversion’ the words ‘whether in possession or reversion’ are not intended to indicate that the kind of property with which this Act can deal must be property to which a party is entitled in possession or reversion but rather the phrase ‘whether in possession or reversion’ is, as a matter of grammar, an adverbial phrase which qualifies the word ‘entitled’. The phrase means that the entitlement to the property may be either in possession or reversion; ie the phrase is descriptive of the entitlement and not of the property and it removes any fetter upon the court in dealing with property under this Act by limiting the nature of the entitlement thereto to entitlement in possession. See also Stephens and Stephens [2007] Fam CA 680; Kennon v Spry; Spry v Kennon, above. Contrast Simmons and Simmons [2008] FamCA 1088.

[page 431] 8.17 Subsequent Family Court cases have reflected the broad definition of ‘property’. The following interests have been held to be property within the meaning of s 4(1) of the FLA, and therefore falling within the jurisdiction of the Family Court: shares held in a company (Marriage of Duff at 11,219); choses in action (Marriage of Duff at 11,217; Marriage of Carvell (1984) 9 Fam LR 1055 at 1056; FLC ¶91-586); trust assets where the husband was both the appointer and guardian and also a beneficiary under the trust deed (Marriage of Harris (1991) 15 Fam LR 26 at 36; FLC ¶92254); an option granted to the wife by the will of her father to acquire a home owned by him (Marriage of Rickaby (1995) 19 Fam LR 814; FLC ¶92-462); funds paid into court to be invested by the senior master on behalf of a successful claimant in a personal injuries action (Marriage of Holmes (1988) 12 Fam LR 331 at 342; FLC ¶91-944); a vested right to superannuation, redundancy and long service leave entitlements (Marriage of Bourke (1992) 16 Fam LR 325; (1993) FLC ¶92-356); the interests of a partner in a partnership (Marriage of Best (1993) 16 Fam LR 937 at 957; FLC ¶92-418); an expectation of future income (Marriage of Whitehead

(1979) 5 Fam LR 308 at 317; FLC ¶90-673); a future or non-vested entitlement to long service leave (Marriage of Nolan and Ingram (1984) 9 Fam LR 808 at 819; FLC ¶91-585); damages: while the position with regard to a right of action in damages is unclear, the High Court in Marriage of Williams (1985) 10 Fam LR 335; FLC ¶91-628 made it plain that the actual proceeds of the settlement of an action for damages for personal injuries were ‘property’. Further, in Marriage of Holmes (1988) 12 Fam LR 331; FLC ¶91-944, the Full Court of the Family Court held that common law damages paid for an injury in the course of the husband’s employment which had not been paid directly to the husband but rather had been paid into the Supreme Court to be invested on his behalf, did constitute ‘property’ for the purposes of the FLA. The fund was to be managed by the court but the husband had not been divested of any proprietary interest: see also Marriage of Holden (1986) 11 Fam LR 835 at 839; (1987) FLC ¶91-842; compare Marriage of Palmer (1985) 10 Fam LR 406 at 406–7; FLC ¶91-606; Marriage of Zorbas (1990) 14 Fam LR 226 at 230; FLC ¶92160; Marriage of Zubcic (1995) FLC ¶92-609; superannuation: there is no doubt that in the present day, superannuation schemes are dealt with under s 79. They form in fact a most important component of many s 79 proceedings. They give rise to a range of issues, including valuation and the identification of the parties’ contributions. They also give rise to procedural issues such as the adjournment of proceedings so

[page 432] that final orders can be made after superannuation entitlements have vested: Marriage of O’Shea (1988) 12 Fam LR 537; FLC ¶91-964; Marriage of Carson (1999) 24 Fam LR 360; FLC ¶92-835. This was certainly the case prior to the 2001 amendments to the FLA. The situation in relation to superannuation has since been clarified by the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) which came into effect in 2002. This Act inserted s 90MC into the FLA, which makes it clear that superannuation is to be treated as property for the purposes of s 4(1)(ca) regarding the definition of matrimonial cause. This is discussed further below at 8.76–8.85; and future entitlements to superannuation: whether future superannuation benefits are ‘property’ within the meaning of s 79 will depend on the provisions of the deed or legislation governing the scheme, and the events that have occurred at the time of the hearing. Essentially, the court must look at the case before it. In Marriage of Wunderwald (1992) 15 Fam LR 713; FLC ¶92-313, the court found that where the trustee of a superannuation fund is clearly a creature of a party, and that party can, if he or she chooses, become immediately entitled to the party’s share of the superannuation without suffering any detriment, the Full Court held that it would be ‘unreal’ to treat such an entitlement as other than property available for distribution under s 79: see also Marriage of Stay (1997) 21 Fam LR 626; FLC ¶92-751. Note these cases were decided prior to the 2001 amendment to the FLA.

Future salary as property 8.18 In Marlowe-Dawson and Dawson (No 2) [2014] FamCA 599 before Kent J the question arose as to whether the husband’s future taxable monthly income was a legal or equitable interest in property that could be the subject of an order made under s 79 of the FLA. His Honour commenced with the definition of ‘property’ in s 4 of the Act which is in the following terms: ‘property’ … in relation to the parties to a marriage or either of them — means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion …

His Honour observed that the High Court in Stanford [2012] HCA 52; (2012) FLC ¶93-518 referred to the need for a court to identify the existing legal and equitable interests of the parties. The High Court emphasised the word ‘existing’. His Honour said (at [50]–[54]): The distinction between a presently existing entitlement, on the one hand, and a future and/or contingent and/or potential interest on the other, is the point of reconciliation of the authorities as to what has, or has not, been held to be ‘property’ within the meaning of the Act and which may be subject to the Court’s jurisdiction to alter the interests of the parties in ‘property’.

Thus, for example: a.

vested rights of superannuation, redundancy and long service leave entitlements have been held to be property (In the Marriage of Woolley (No 2) (1981) FLC

[page 433] ¶91-011; Burke and Burke (1993) FLC ¶92-356) whilst a future or non-vested entitlement to long service leave has been held not to constitute property (Whitehead and Whitehead (1979) FLC ¶90-673 per Baker J; Nolan and Ingram (1984) FLC ¶91-585); b.

funds paid into Court to be invested by the Senior Master on behalf of a successful claimant in a personal injuries action were held to be property (Holmes and Holmes (1988) FLC ¶91-944; see also Williams and Williams (1984) FLC ¶91-541) but an action for an unliquidated claim in tort for personal injuries has been held not to constitute property (see Saba and Saba (1984) FLC ¶91579);

c.

the interests in trust assets of a party whose control over those assets is such that they can deal with the assets as they please has rendered the conclusion that trust assets are ‘property’ as compared with those cases involving trust assets where such powers of disposition do not exist (Stephens and Stephens (2007) FLC ¶93-336).

In W and W (1980) FLC ¶90-872 Nygh J considered whether work in progress of a legal partnership constituted assets of the partnership for the purposes of s 79 of the Act. In that context and rejecting the proposition that work in progress was property Nygh J observed (at pages 75,523): ‘Property’ even in the wide definition adopted by the Full Court in Duff and Duff (1977) FLC ¶90-217, at page 76,133 must still indicate some present right of value which the law will enforce. An expectation, however real or imminent, of future income or gain is not ‘property’: see Crapp and Crapp (1979) FLC ¶90615.

It would seem to be well-settled that ‘property’ for the purposes of the Act does not include contingent interests as appears from the following well known statement of Fogarty J in Crapp and Crapp (1979) FLC ¶90-615 at 78,176 as follows: An order can only be made … under s 79 where a party has a present or future interest in a particular item of property. Clearly where a party has a present interest no difficulties arise, and by ‘future interest’ in the above sense, I take it to mean a situation where a party has an established interest in an item of property but the date of receipt is postponed to some future time. That is different from the case where a party may become entitled to an interest in property in the future, provided that certain events occur and/or that certain disqualifying events do not occur in the meantime … In Perrett and Perrett (1990) FLC ¶92-101 … the Full Court of this Court held that a right to future payments of a weekly pension which could not be capitalised or transferred, and the payment of which was dependent upon the husband surviving from week to week, could not be termed property within the meaning of s 79(1)(a) (despite the money constituting property once it had been paid into the hands of the husband). [some citations omitted]

Must there be property before proceedings can be instituted? 8.19 The terms of s 79 of the FLA require that there should be some property in existence before the court can make an order under the section. This requirement received the attention of the court in the case below.

[page 434]

In Marriage of Law-Smith and Seinor (1989) 13 Fam LR 397; FLC ¶92-050, the question arose as to whether it is possible to commence s 79 proceedings where there is no property yet in existence but there is likely to be in the future. In that case, the husband was of retiring age and was in a position to instruct the administrators of a superannuation fund to pay him a lump sum on retirement. Nicholson CJ, with whom Baker J agreed, held that s 79 proceedings could be commenced. His Honour stated (at 402): I can see no reason why the proof of the physical existence of property at the commencement of [a s 79 proceedings] is a necessary prerequisite to the commencement of it. The fact that no property arising out of the matrimonial relationship is in or is ever likely to come into existence may be a ground for striking out such proceedings as frivolous or vexatious in certain circumstances, but in circumstances where there is a very real possibility of property coming into existence, which may be characterised as arising out of the matrimonial relationship, such considerations would not apply. See also Simmons and Simmons [2008] FamCA 1088.

Financial resources 8.20 In determining property or maintenance disputes, one of the matters the Family Court must consider in arriving at the appropriate outcome is the financial resources of each

party: ss 75(2)(b) and 79(4)(e) of the FLA. In keeping with the very broad definition given to property under Duff, the Family Court has interpreted the expression ‘financial resources’ widely. The term ‘financial resources’ means something not covered by the terms ‘income’ and ‘property’. The term ‘financial resources’ is not defined under the FLA. It has, however, been defined by the court.

The most often quoted case in this area is Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC ¶90-108, where the term ‘financial resources’ was defined in the following terms (at 768): A financial stock or reserve over which a party has sufficient control as a matter of fact to draw upon when necessary towards supplying some financial want or deficiency of the party. This quote from the court makes it clear that the reality of the parties’ true financial position is uppermost. It is not necessary that one of the parties have a legal or even an equitable interest in property in order for it to be taken into account in the division of the matrimonial property. In this case, the Full Court of the Family Court said that a ‘financial resource’ need not be equated with the property of the party but could comprise benefits which were received in the past and which might be expected to continue in the future. It does not matter that a third party owns the property supplying the ‘financial resource’. In circumstances where the party was able to exercise de facto control over the allocation, distribution and use of that property, it may be possible to ensure the continuation of past benefits. [page 435]

The relevant property had been transferred by the husband to a trust in which he had no legal or equitable interest. The actual control of the company and trust resided in his brother and his accountant, both of whom had always acted in accordance with his wishes. The financial benefits the husband received in this way were taken into account by the Full Court as a financial resource of the husband. In other words, despite the husband divesting himself of both the legal and equitable ownership of the relevant property, the court took the view that the husband, at least behind the scenes, had considerable control of the benefits accruing from the property and that, ‘in fact’, the property remained a financial resource of the husband. Accordingly, whether the property of a third party (such as a family company or trust) will be regarded as a ‘financial resource’ depends on the question of control: see also Marriage of Collins (1992) 16 Fam LR 261; (1993) FLC ¶92-343.

In Marriage of Whitehead (1979) 5 Fam LR 308; FLC ¶90-673, the wife had established a trust and lent it funds which had been a bequest and gifts to her from her family. Her control over the trust arose substantially as the result of a power to bring about variations in the trust, which she exercised by removing her former husband as a potential beneficiary, and by a power to appoint and remove the trustees. The court concluded that the wife was able to control the disposition of the income and assets of the trust and, accordingly, treated it as being a ‘financial resource’. In contrast, in Marriage of Yates (No 2) (1982) 7 Fam LN N20; FLC ¶91-228, it was held that property owned by a third party could not be taken into account as a financial resource of the husband. In that case, it was found that the husband did not have either legal or equitable interest in the relevant property,

nor did he have any right as to the disposition of the benefits flowing from the property. Contrast Kennon v Spry; Spry v Kennon [2008] HCA 56 and Stephens and Stephens [2007] FamCA 680 where the husband had control over the trust property.

Declaration of interests in property: s 78 8.21 One of the very important steps marking a division of property in the Family Court is the initial identification of the relevant property, the subject matter of such division. In a minority of cases the parties cannot agree as to the legal and equitable ownership of the property in dispute. In such a case, the Family Court may be required to make a finding as to correct title of the property. Section 78 of the FLA empowers the Family Court to make a formal declaration of a party’s existing title or rights with regard to property. A declaration under s 78(1) is a formal order which determines the existing title or rights of parties to a marriage in property. Section 78(1) of the FLA provides: In proceedings between the parties to a marriage with respect to existing title or rights in respect of the property, the court may declare the title or rights, if any, that a party has in respect of the property.

[page 436] 8.22 Under s 78(2) of the FLA, the court may, if it makes a declaration under s 78(1), make consequential orders,

including orders as to sale or partition and interim or permanent orders as to possession. The court, however, retains discretion and may refuse to make such an order if it is deemed unnecessary.

Scope of the powers under s 78 8.23 Under s 78 of the FLA, the court has power to consider all issues of law and equity relevant to the determination of a party’s title and rights in respect of property: Marriage of Good (1982) 2 Fam LR 354; FLC ¶91-249; Marriage of Balmaves (1988) 12 Fam LR 488; FLC ¶91-952. Section 78 proceedings must be between parties to the marriage. This does not, however, preclude the court from making a declaration to the effect that neither party to the proceedings has an interest in a particular asset.

In Marriage of Moran (1994) 18 Fam LR 534; (1995) FLC ¶92559, it was held that s 78 enables declarations to be made where one party to a marriage seeks orders declaring that the other party to the marriage is the beneficial owner of property held by a third party. A declaration of property interests under s 78(1) does not, however, bind third parties who are not parties to the proceedings. In Marriage of Lanceley (1994) 18 Fam LR 71; FLC ¶92-491, the Full Court of the Family Court made it clear that the court should not make an order affecting third parties unless the third parties have had an opportunity to be heard, for example, after becoming parties to the proceedings by intervention under s 92 of the FLA.

In the following matter a wife sought two orders against her former husband under the FLA. The first was a declaration under s 78 as to the ownership of property in which the parties had lived for 30 years. The registered proprietors of the property were the husband and the husband’s sister. The second order sought was an alteration of property interests under s 79. The judge at first instance refused to make a declaration under s 78. The wife appealed the decision.

In Friar and Friar [2011] FamCAFC 71 the Full Court (Finn, Thackray and Watts JJ) upheld an appeal against Fowler J’s summary dismissal of the wife’s application under s 78 that the wife and husband be declared sole owners of a property the registered proprietors of which were the husband and his sister, and which was the former home of the husband and the wife (and for an order for 60 per cent of it to be paid to the wife by the husband). Finn J agreed that the trial judge had misapprehended what was being alleged and argued by the wife, saying this (at [18]): Once the elements of the wife’s claim just discussed are understood in the ways in which I consider that they should have been understood, her case for equitable relief [page 437] would then be founded on ‘… an assumption as to the future acquisition of ownership of property which have been induced by representations upon which there had been detrimental reliance by the plaintiff’ (per Gleeson

CJ, McHugh, Gummow and Callinan JJ in Giumelli [(1999) 196 CLR 101]), and could not be said to be ‘doomed to fail’. The wife’s application for relief under s 78 should not therefore, with respect, have been summarily dismissed. The wife’s case and the principles applying to applications for summary dismissal were also reviewed by Thackray and Watts JJ in a joint judgment. Their Honours were not persuaded that the trial judge had misunderstood the wife’s claim but did (at [81]–[89]) uphold the appeal on the ground that the trial judge erred in concluding that a statement by the husband’s sister to the wife that ‘she and her husband should not sell [the property] as it was an asset and would be worth more in years to come’ was not a representation of ownership, but rather an opinion as to the future worth of the property, concluding (at [88]): We therefore find merit in Ground 3, at least to the extent that we consider the statement relied upon by the wife is capable … of constituting a representation of ownership. We consider the decision as to whether it did, in fact, amount to such a representation ought to have been left until trial. The majority also held (at [100]) that the trial judge had erred in concluding that other evidence referred to as supporting the wife’s claim ‘could [have been] referable to arrangements unrelated to the ownership of the property, and no reasonable inference [could] be drawn that they are facts upon which reliance could be placed as sustaining a representation or joint venture affecting ownership of the matrimonial home’, saying (at [101]): We accept that the matters … could, as his Honour found, be referable to matters unrelated to the ownership of the two properties. It should be remembered, however, that in summary dismissal proceedings, the case of the respondent is to be taken

at its highest. In our view, if proven and considered collectively, the matters referred to … could be found at trial to be corroborative of the assertion of the wife about the ownership of the two properties. The majority further held that the trial judge had erred by finding that the wife had incurred no net detriment from her expenditure on the property having regard to the benefit of her lengthy occupation of it, saying (at [120]): In our view, all his Honour needed to do in dealing with the issue of detriment was to find that the assertions made by the wife were capable of constituting detriment. The extent of, and legal consequences attached to, that detriment should then have been left for trial. The majority also held that an error occurred when the trial judge found (at [130]) ‘that because the wife could not obtain the precise relief she sought [declaration of a constructive trust], her entire application under s 78 should be dismissed’, saying (at [139]): We consider his Honour ought to have proceeded on the basis that the wife would, before trial, formally amend her application to seek the relief set out in the points of claim, rather than proceeding on the basis that the relief to be sought was as contained in the application. However … the wife’s failure to amend would not prevent the court from making an order in her favour for some relief falling short of what had been sought. [page 438] The Full Court returned this matter for a rehearing based on the success of the wife’s appeal. Friar and Friar [2013] FamCA 121 illustrates the difficulties inherent in trying to establish a

beneficial interest in property where neither legal nor equitable title is confirmed by compelling evidence. In relation to the wife’s position with regard to real property Murphy J said (at [2]): The wife has no existing legal interests in real property. Her legal interest in other property that might be the subject of a potential claim pursuant to s 79 is confined to the ownership of shares of very modest value and a negligible amount of funds in a bank account. The wife alternatively submitted that she was induced by statements of the husband and his sister to believe that she would have a beneficial interest in the property and acted to her detriment in reliance on those statements. Murphy J held that the evidence did not disclose a joint endeavour or common intention, his Honour finding that the statements alleged by the wife to have induced her to act to her detriment were unclear and ambiguous. The wife’s claim was dismissed.

Bankruptcy 8.24 It is a legal truism that legislation is enacted or amended to ‘cure a mischief’ in the common law or legislation which falls short of jurisdictional requirements. This has occurred through an Act amending the FLA and the Bankruptcy Act 1966 (Cth) which authorises amendments to the Family Law Rules 2004 (Cth). The changes in the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) (Amending Act) relating to the interaction between family law and bankruptcy came into effect on 19 September 2005. The amendments made by the

Amending Act enable concurrent bankruptcy and family law financial proceedings to be brought together in a court exercising family law jurisdiction. This is achieved by giving these courts additional jurisdiction to deal with bankruptcy matters that run concurrently with family law financial proceedings and by facilitating the involvement of the trustee and creditors in those proceedings. The impetus for these quite dramatic changes was to ensure that all the issues are dealt with at the same time and in the same forum, and to clarify the competing rights and interests of the creditors and non-bankrupt spouse where bankruptcy and family law issues are present. Before 2005 the Family Court encountered considerable difficulties when asked to bring down a judgment in relation to a property settlement where one party to the marriage was bankrupt. Through ‘curing’ legislation the position of the Family Court has changed markedly. The Amending Act introduced a new way to resolve disputes about the property of a bankrupt when a bankrupt is separated. These disputes are now dealt with in the one court, by the Family Court. The Federal Magistrates Court retains its dual jurisdiction under both Acts. The Amending Act gave the Family Court power to make s 79 FLA orders about property which [page 439] has vested in a trustee in bankruptcy if there are property settlement proceedings related to that property. The court can order that property, otherwise available for distribution to creditors, be transferred to the non-bankrupt spouse.

The general rule under the Bankruptcy Act that property vests in the trustee at the date of bankruptcy (s 58) is now subject to property settlement and spousal maintenance orders (s 59A). A new form of exempt property was added. Section 116(2)(q) provides that property of the bankrupt is exempt if, under a Pt VIII FLA order, the trustee is required to transfer that property to the spouse of the bankrupt. Section 116(2)(r) refers to orders under Pt VIIIAB. Since the Amending Act, at the third step of the four-step s 79 process, the interests of creditors are considered as one of the factors under s 75(2) (s 75(2)(ha)). Prior to the 2005 legislation, the non-bankrupt spouse would rank as an ordinary unsecured creditor of the bankrupt estate. The non-bankrupt spouse is now in a position whereby his or her interests may be directly balanced with those of the unsecured creditors which, subject to the specific facts of the case, is expected to provide a much greater distribution of property to the non-bankrupt spouse from the bankrupt estate than was previously provided for under general bankruptcy legislation. The second reading speech of the bill in parliament by the Attorney-General (quoted in Trustee of the Property of G Lemnos (A Bankrupt) and Lemnos (2009) 41 Fam LR 120 at 130; FLC ¶93-394; [2009] FamCAFC 20) referred to the above sections: The effect of these amendments will be to offer procedures and protections to the non-bankrupt spouse that were not previously available. At the same time, the court can be on notice about the interests of creditors of a bankrupt spouse and can take those interests into account in determining family property or spousal maintenance orders.

See also Debrossard and Official Trustee in Bankruptcy [2011] FamCA 648 and Simon and Simon [2013] FCCA 432. The requirement of notice — the Family Law Rules 2004 8.25 Rule 6.17 of the Family Law Rules 2004 (Cth) requires that if a party to proceedings is or becomes a bankrupt they must notify all other parties and the court of that fact, and must notify the Bankruptcy Trustee of the case. Rule 6.02 states that ‘a person whose rights may be directly affected by an issue in a case and whose participation as a party is necessary for the Court to determine all issues in dispute must be included as a party to the case’. The Bankruptcy Trustee can become a party by making an application for leave to intervene (r 6.05) or by being named as a respondent in the application filed by another party (r 6.03). A Bankruptcy Trustee, having been given notice that the bankrupt is a party to proceedings, may choose not to participate in those proceedings unless the non-bankrupt spouse is seeking orders in respect of vested bankruptcy property. [page 440]

In Trustee of the Property of G Lemnos (A Bankrupt) and Lemnos (2009) 41 Fam LR 120; FLC ¶93-394; [2009] FamCAFC 20, in the Full Court of the Family Court before Coleman, Thackray and Ryan JJ, the husband held a $4.5–5 million home in his own name with a $2.4 million mortgage (for which the wife was a

guarantor). He owed the Australian Tax Office (ATO) $5.7 million due to past improper claims for tax deductions. There were no other significant assets. The trial judge ordered that the wife retain half of the property’s net value after payment of the mortgage (but not subject to the ATO debt). In other words, she would retain property to the value of about $1–1.3 million, and the creditors would retain the same amount. The trial judge considered the wife had not been party to her husband’s dishonest tax claims (at 121). The Trustee in Bankruptcy appealed the decision. On appeal, the Full Court of the Family Court emphasised the wife taking ‘the good with the bad’. Coleman J pointed out that the trial judge’s decision meant the creditors received less than a quarter of their $5.7 million in entitlements, while the wife received almost 100 per cent of the value of her contributions to the marriage. The Trustee in Bankruptcy’s appeal was successful and the matter was ordered to be reheard by a different judge. In relation to the discretion of the first instance judgment by Le Poer Trench J and hardship to the wife the Full Court found that: The trial judge’s exercise of discretion miscarried by failing to particularise the way in which an adjustment in favour of the trustee would work an injustice and hardship on W [the wife]. Given that the trial judge’s orders would lead to unsecured creditors receiving only a very small proportion of their entitlement, while W would receive nearly the entirety of her contributionbased entitlement it was incumbent upon the trial judge to explain in what way any adjustment in favour of the trustee would cause W injustice and hardship … The outcome determined by the trial judge was outside the range of reasonable discretion. The error in the exercise of the discretion may well have been the result of the trial judge having given disproportionate weight to

W’s lack of complicity in H’s [the husband’s] indiscretions and having given inadequate weight to the fact that W had benefited from those indiscretions … [at 121–2]. The trustee primarily appealed on the basis that at first instance Le Poer Trench J should have considered all relevant circumstances and factors and made orders, having regard to the husband’s bankruptcy, to treat the wife and the creditors of the husband equally. The trustee also argued that Le Poer Trench J erred in failing to follow the procedure outlined in Biltoft and Biltoft (1995) FLC ¶92-614 for identification of the property of the parties, their assets and financial resources net of their liabilities. Further, the trustee argued that had Le Poer Trench J correctly taken into account the liabilities of the husband, there would have been no property of the husband available for the alteration of property interests. The Full Court allowed the appeal. In his judgment, Coleman J stated that the 2005 amendments to the FLA and the Bankruptcy Act 1966 (Cth) meant that the interests of unsecured creditors did not automatically ‘trump’ the interests of a nonbankrupt spouse and that the legislation required the court to balance their competing claims in the exercise of the wide discretion conferred on the court. His Honour also found that Le Poer Trench J miscarried his discretion in the circumstances of the case [page 441] by focusing on the wife’s lack of actual or constructive notice about the husband’s impermissible tax dealings. Coleman J also held that Le Poer Trench J erred in concluding that the husband should satisfy the debt to the ATO from his own resources

before having regard to the balancing exercise required by the legislation. Thackray and Ryan JJ partially agreed with Coleman J, but determined that the court may make orders in favour of a nonbankrupt spouse, even though the combined liabilities of the parties may exceed the total value of the property. Their Honours also found that Le Poer Trench J had erred in determining that the wife ought to be excused from sharing the burden of the primary taxation liability incurred by the husband: at 167.

The matter of Trustee for the Bankrupt Estate of N Lasic v Lasic (2009) 41 Fam LR 369; [2009] FamCAFC 64 was heard in the Full Court of the Family Court before Boland, Thackray and Ryan JJ. The case concerned a variation to consent orders that were made between the husband and wife in 1998. At first instance, Coleman J found that the circumstances in which the consent orders had been made constituted a miscarriage of justice, as the husband had transferred his right to several properties to the wife in order to avoid paying a judgment debt against a third party, Mr M, following a finding of negligence against the husband in the New South Wales District Court. Coleman J ordered that the consent orders should be varied so that the wife had to pay to Mr M a sum to satisfy the judgment debt. The trustee of the bankrupt estate of the husband primarily appealed on the basis that Coleman J had no power to make an order for the payment of the judgment debt by the wife directly to Mr M as a third party. The wife filed a cross-appeal. In reference to the cross-appeal the Full Court stated (at 371): By her cross-appeal, which was filed by leave granted at the hearing before us, the wife asserted that the trial judge had erred in:

entertaining the trustee’s application in circumstances where no finding had been made as to whether the trustee was a ‘person affected’ within the meaning of s 79A; varying the consent orders and requiring the wife to pay an amount directly to Mr M; and ordering the wife to pay the trustee’s costs. The trustee submitted that the husband’s share of the property should have vested in the trustee and been distributed by the trustee in accordance with the hierarchy of order of payment to creditors as set out in the Bankruptcy Act 1960 (Cth). Mr M, as an intervener, sought that the appeal and cross-appeal of the wife about the trustee’s standing be dismissed. In allowing the appeal, the Full Court determined that a third party may be a ‘person affected’ by orders made pursuant to s 79 for the purposes of s 79A of the FLA. The Full Court also determined that Pt VIIIAA of the Act had no application, as the [page 442] consent orders were not set aside by Coleman J, but varied. The Full Court found that there was no power to order the direct payment by the wife to Mr M as he only had a right to prove in the administration of the husband’s bankrupt estate and was subject to the hierarchy of order of payment to creditors: at 372.

8.26 A question that has arisen in seeking a declaration under s 78 of the FLA is whether the Family Court has jurisdiction to make a declaration in respect of property which has vested in the official trustee pursuant to s 58 of the Bankruptcy Act 1966 (Cth).

In Marriage of Garmonsway (1986) 10 Fam LR 1026; FLC ¶91746, Baker J held that the court had no such jurisdiction under s 78. Once a debtor has become bankrupt, the effect of s 58 of the Bankruptcy Act is immediately to vest the whole of a debtor’s property either in the official trustee, or a registered trustee.

A similar picture emerges in relation to claims made under s 79 of the FLA. If a s 79 order has not been complied with, the spouse to whom a transfer is owed is in the same position as general (that is, unsecured) creditors in the bankruptcy if the other spouse goes bankrupt: Ejje and Ejje [2002] FamCA 1003. For a discussion of the operation of the relation back (or ‘claw back’) provisions of the Bankruptcy Act 1966 (Cth) and the FLA, see Re Sabri; Ex parte Brien (1996) 21 Fam LR 213; (1997) FLC ¶92-732. Where the parties settle their property division by agreement prior to the bankruptcy, as opposed to orders pursuant to s 79, the agreement is classified as a ‘maintenance agreement’ pursuant to the Bankruptcy Act and is protected from the relation back provisions of the Bankruptcy Act: for further discussion, see P Parkinson, ‘Setting Aside Financial Agreements’ (2001) 15 AJFL 26; see also Frost and Sheahan [2008] FCA 1073. Section 35 of the Bankruptcy Act 1966 (Cth) states: The Family Court’s jurisdiction in bankruptcy where trustee is a party to property settlement or spousal maintenance proceedings etc. (1) If, at a particular time:

(a) a party to a marriage is a bankrupt; and (b) the trustee of the bankrupt’s estate is: (i) a party to property settlement proceedings in relation to either or both of the parties to the marriage; or (ii) an applicant under section 79A of the Family Law Act 1975 for the variation or setting aside of an order made under section 79 of that Act in property settlement proceedings in relation to either or both of the parties to the marriage; or (iii) a party to spousal maintenance proceedings in relation to the maintenance of a party to the marriage;

[page 443] then, at and after that time, the Family Court has jurisdiction in bankruptcy in relation to any matter connected with, or arising out of, the bankruptcy of the bankrupt. … (2) [Subsection (1) does not] limit the Family Court’s jurisdiction under section 35A. (3) In this section: ‘property settlement proceedings’ has the same meaning as in the Family Law Act 1975.

The following matter relates to the question as to whether a bankrupt party to a marriage can seek an order under s 79 of the FLA in circumstances where ‘property of the marriage’ has inadvertently been overlooked.

In Pacelli and Hopkinson [2010] FMCAfam 1248, subsequent to a property settlement reached between the wife and the trustee of the husband’s estate, Burnett FM ordered that the bankrupt husband be reinstated to the proceedings for the purpose of an application to set aside the consent order enabling him to claim a superannuation fund valued at $13,000 which had not been disclosed as part of the parties’ asset pool. After reviewing the statutory limits to the rights of a bankrupt under s 79(11), (12) and (13) of the FLA, in conjunction with s 79A(5) and (6) of the FLA, and s 58(1)(a) of the Bankruptcy Act 1966 (Cth), Burnett FM said (at [20]–[22]): However, what of the position where one or some of the assets are exempt from distribution among the creditors? Does the bankrupt have standing [locus standi] in respect of those assets? That is the case here. Here the bankrupt has an interest in a regulated superannuation fund. The answer in part lies in s 5 [of the Bankruptcy Act] which defines ‘the property of the bankrupt’ to mean ‘the property divisible among the bankrupt’s creditors’. Section 116 [of the Bankruptcy Act] details the property divisible among the bankrupt’s creditors. That does not extend to that property described in s 116(2) and more particularly s 116(2)(d)(iii)(A) being a regulated superannuation fund. See also Halsbury’s Laws of Australia, Butterworths, 1998, vol 3(1) para 50-825. In other words property which is exempt by s 116(2) does not vest and remains the property of the bankrupt. Burnett FM then referred (at [23]) to authority that ‘supports the view that, despite bankruptcy, a bankrupt has standing in s 79 FLA property proceedings because of their personal nature’ and (at [33]–[35]) concluded:

A purposeful approach should be adopted to the construction of the FLA. See s 15AA Acts Interpretation Act 1901 (Cth). The clear purpose of the FLA is to permit the resolution of property claims between parties to a marriage. Save for the 2005 amendments there is nothing in the FLA to expressly exclude the application of the pre-existing principles insofar as they applied to non-vested property. That is, the amendments did not disturb recognition of the rights of the bankrupt in respect of non-vested property. On that basis, I do not think s 79A(5) FLA should be read to exclude a bankrupt from pursuing rights in respect of non-vested property, although a [page 444] bankrupt’s Trustee is also taken to be a person whose interests are affected in respect of such property. The fact that the bankrupt is a person affected does not however limit the Trustee’s rights as are deemed by s 79A(5) FLA. In fact, it is entirely foreseeable that both parties have an interest in a s 79 FLA order in respect of non-vested rights enlivening the rights of each. In Deputy Commissioner of Taxation v Swain [1988] FCA 238; (1988) 20 FCR 507 at 514 the Federal Court has recognised that matter. It follows that as the applicant’s superannuation fund did not vest, he is not subject to s 79(12) FLA in respect of the superannuation fund nor subject to the requirement for leave in respect of an application pursuant to s 79 in respect of that property. He is a person who would be affected by an order under s 79 FLA [authority cited] and

has standing to make application pursuant to s 79A(1) FLA.

Section 78 declarations as opposed to s 79 alterations 8.27 The differences between ss 78 and 79 of the FLA are fundamental, and must be understood. They are particularly apparent in the exercise of jurisdiction by the Family Court. The jurisdiction under s 78 is narrow in its focus in that the Family Court is restricted to declarations as to existing interests in property, relying on the general principles of property law and equity. Proceedings under s 79, on the other hand, are not governed by ordinary principles of property law. Section 79 empowers a court to alter proprietary interests, as justice requires, in order to give effect to the various factors listed in s 79. The selection of the right section under which an applicant should proceed can be of great importance in relation to the evidence sought to be relied on and the power of the court either to make a declaration with regard to the interests of the parties or alternatively to alter proprietary interests. It should be noted that s 78 proceedings are not a prerequisite to seeking an order under s 79. Indeed, in view of the wide powers under s 79 to alter property interests, the situations in which s 78 proceedings will be used are limited. In the majority of cases, a s 79 application is heard without recourse to a s 78 declaration. Equally, it is unusual but not impossible to have a s 78 declaration made without subsequent alteration of property interests under s 79.

In Marriage of Smith (1990) 14 Fam LR 521; FLC ¶92-200, quoting the decision from Marriage of Caitlin and Kent (1986) 11 Fam LR 639; (1987) FLC ¶91-815, it was stated (at 524): [T]he court has indicated its reluctance to embark upon a determination of s 78 issues alone, and … leans towards linking [ss] 78 and 79 issues in one hearing …

The nature of s 78 as a vehicle for a declaration in circumstances where the parties to the marriage had died was explored in the matter following. [page 445]

In Whitehouse and Whitehouse (2009) 42 Fam LR 319; FLC ¶93415; [2009] FamCAFC 207 before the Full Court of the Family Court comprised of May, O’Ryan and Stevenson JJ, the question arose as to whether the jurisdiction of the Family Court under ss 78 and 79 prevails when both the parties to a marriage have died. Seeking an answer to this question were the executors of the husband and wife. In a nutshell, the matter concerned the standing of executors to the estate of the husband and wife (who had commenced property proceedings before the Family Court) to continue with a cause of action pursuant to non-federal jurisdiction after both of the parties to the marriage had died. The matter came before the Full Court by way of an appeal from a judgment of Mushin J. The Full Court stated (at [1]): This appeal is concerned with the continuation of

property proceedings after both parties to a marriage have died. The appeal, filed on behalf of the deceased wife by her case guardian, is from orders of Mushin J made on 6 February 2009. Although both parties are represented by their legal personal representatives, for the sake of convenience and without wishing to give offence, they will be referred to as the husband and the wife. The husband and the wife were advanced in age and were both represented by case guardians in relation to their property settlement pursuant to s 79 of the FLA. The husband died. The wife’s case guardian amended her application requesting that the court exercise its accrued and equitable jurisdiction declaring that the husband and his successors hold their interests in property by implied, constructive or resulting trust (‘the accrued application’). The wife then died. A further application was then filed on behalf of the deceased wife seeking that the executors of the wife’s will be substituted as parties. Mushin J determined that the Family Court had jurisdiction pursuant to s 78 of the FLA to determine the accrued application. His Honour stated that any relief that was a matrimonial cause could only be sought pursuant to s 78. Mushin J concluded that it was possible to make the orders as sought in the accrued application because it constituted a matrimonial cause. As a result of the wife’s death, however, his Honour dismissed the accrued application as void ab initio for want of jurisdiction. The wife’s representative argued that Mushin J erred by failing to substitute the executors of the wife’s estate as parties in lieu of the wife; by dismissing the accrued application; by determining that the Family Court had jurisdiction to determine the application pursuant to s 78; and by determining that that application was void ab initio for want of jurisdiction.

The Full Court dismissed the appeal. It determined that the death of the wife terminated the federal jurisdiction of the Family Court to hear the federal claim (being the original application to alter the interests of property of the parties to the marriage). Consequently, there was no accrued jurisdiction available to the Family Court to make the declaration sought by the wife’s representatives. The Full Court considered that it would be unlikely to exercise its discretion to exercise accrued jurisdiction in any event because of the exceptional circumstances of the case. The Full Court upheld part of Mushin J’s reasons for judgment. The Full Court reached different conclusions with respect to whether the accrued application was [page 446] a matrimonial cause which could only have been brought under s 78 of the FLA and whether the accrued application was void ab initio for want of jurisdiction. The Full Court concluded that as both parties were deceased, there was no dispute remaining between them for which the Family Court had federal jurisdiction. This meant that no application relying on accrued jurisdiction could attach to a cause of action before the Family Court. The Full Court also expressed doubt as to whether proceedings for a declaration pursuant to s 78 can be continued after one party dies. The Full Court stated (at [52]): We are of the view that when the matter came before Mushin J for determination, as both parties were deceased, there was no dispute remaining between them about which the Family Court had federal jurisdiction. Therefore no application relying on accrued jurisdiction could attach to a Family Court matter.

Section 79 and the High Court decision in Stanford 8.28 Since the inception of the FLA in 1975 the High Court has played a vital part in clarifying the meaning and proper application of the principal purpose of the FLA. On occasions, the finding of the High Court alters to a considerable degree the manner in which certain provisions of the FLA are to be applied. With some matters this is simply by implication, that is, obiter dicta rather than the express ratio decidendi applicable to the decision in the matter before the court. The matter following informs us as to the manner in which the Justices of the High Court made known, directly and indirectly, the correct application of s 79 and its relevant subsections to an application for a property settlement under Pt VIII of the FLA. Although in the matter before the High Court the parties to the relevant matter were never separated in the technical sense envisaged by the FLA, the findings of their Honours may well be applicable to a myriad of fact situations in which a remedy is sought under Pt VIII of the FLA. In reading the judgment in the matter below it is useful to be mindful of the insistence of the High Court on the importance under the common law of the existing legal and equitable interests in relation to property.

In Stanford and Stanford [2012] HCA 52 (Stanford) before French CJ, Hayne, Heydon, Kiefel and Bell JJ, the husband and wife married in 1971 which was the second marriage for each. Each

had children from their prior marriages. The parties lived for 37 years in a Perth home registered in the husband’s name which he owned prior to the marriage. The parties retired in 1989 and in 1995 the husband made a will giving the wife a life tenancy in the home and the remainder to his children. In 2005 the wife made a will leaving her estate to her children. In December 2008 the wife suffered a stoke and was admitted to residential care and did not return to the [page 447] marital home. The wife developed dementia and the husband throughout continued to provide for her care. He put $40,000 into a bank account to cover the wife’s medical needs and requirements. In August 2009 the wife’s daughters, as case guardians, instituted proceedings through the Family Court of Western Australia. In the application the daughters sought orders that the matrimonial home be sold with the net proceeds divided equally between the parties and that the husband’s superannuation and joint savings also be divided equally. In the first instance, Magistrate Duncanson (as her Honour then was) ordered that the husband receive 57.5 per cent and the wife 42.5 per cent, stating she was satisfied this was a just and equitable decision. The husband was ordered to pay the wife $612,931 within 60 days. The husband appealed the decision to the Full Court of the Family Court of Australia who overturned the decision of the Magistrate of first instance. After the appeal had been heard but prior to the judgment being delivered, the wife died. The daughters then applied to continue the proceedings as the wife’s legal personal representatives. The appeal was reheard and the daughters were successful. The Full Court ordered the husband

to make the payment ordered at first instance but this payment could be made upon his death. The husband then successfully appealed to the High Court. The husband argued that s 39 of the FLA was not invoked as the proceedings had not arisen out of the marital relationship as the marriage was intact and the wife had since died. The High Court rejected this argument and determined the appeal in respect of s 79(2) and (8) and stated as follows (at [24]): Section 79(8)(b) thus requires a court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with respect to property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an order. Both of those inquiries require consideration of s 79(2) and its direction that the court not make an order unless ‘satisfied that, in all the circumstances, it is just and equitable’ to do so. It follows that, in cases where s 79(8) applies, a court must consider 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. The majority discussed the power to make a property settlement order in such a case (at [25]–[34]), saying: The expressions ‘intact marriage’ and ‘breakdown’ of the relationship or marriage were evidently used in the husband’s submissions as expressions of opposing meaning. But beyond that opposition, the content of neither was spelled out. In particular, the marriage in this case was described as ‘intact’ even though the husband and wife lived apart with no prospect of resuming cohabitation and even though the wife’s dementia would inevitably affect the mutuality of the marital bonds

between them. The expression ‘intact marriage’ appeared to be used in a way that gave definitive significance to the fact that the separation of the parties was not voluntary, but the legal significance of this fact for the husband’s proposition about lack of power was not identified. Nor was its legal significance explored for the husband’s second argument about the exercise of power by the magistrate and by the Full Court (if, contrary to the husband’s principal argument, they had power to make a property settlement order in this case). Yet it is in this second context that the involuntary nature of their separation is significant. [page 448] The majority continued (at [44]): When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife’s care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and

ability to make adjustments.

those

necessary

or

desirable

The majority said further (at [48]–[49]): In its second judgment, the Full Court re-exercised the power given by s 79 of the Act and made a property settlement order. The Full Court said that the ‘many years of marriage and the wife’s contributions demand that those moral obligations be discharged by an order for property settlement’ (emphasis added). It described the outcome produced by its orders as ‘just and equitable’. But otherwise the Full Court made no separate inquiry into whether, had the wife not died, it would have made a property settlement order. That inquiry required it to consider whether, had the wife not died, it would have been just and equitable to make a property settlement order. And because the Full Court did not consider whether it would have made an order if the wife had not died, it did not make any express inquiry into whether it was still appropriate to make an order. No basis was identified at first instance, on appeal to the Full Court, or in argument in this Court, for concluding that it was just and equitable to make any order dividing the parties’ property between them. It was not shown that the wife’s needs during her life were not being or would not be met. The majority concluded (at [51]): Whether it was just and equitable to make a property settlement order in this case was not answered by pointing to moral obligations. Reference to ‘moral’ claims or obligations is at the very least apt to mislead. First, such references appear to invite circular reasoning. On its face, the invocation of moral claims or obligations assumes rather than demonstrates the existence of a

legal right to a property settlement order and further assumes that the extent of that claim or obligation can and should be measured by reference to the several matters identified in s 79(4). Second, the term ‘moral’ might be used to refer to a claim or obligation that is based on the kind of contribution described in s 79(4)(b) — ‘the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them’. But nothing is gained by describing such a contribution as founding a ‘moral’ claim or obligation. Moreover, if the word ‘moral’ was being used in this context with some wider meaning or application, it is important to recognise that it is used in a way that finds no legal foundation in the Act or elsewhere. It is, therefore, a term that may, and in this case did, mislead. The rights of the parties were to be determined according to law, not by reference to other, non-legal considerations. The references by Brennan J in Fisher v Fisher [[1986] HCA 61] to moral claims should not be misunderstood as suggesting otherwise. [footnotes omitted] The appeal was allowed, the orders of the Full Court set aside and the application filed by the case guardian dismissed.

[page 449] Several observations may be made in the aftermath of Stanford. The first is the intimation by the High Court of the doubtful jurisdictional basis by which the Family Court made an order for a property settlement under Pt VIII of the FLA.

The circumstances of the matter clearly indicated an absence of voluntary separation. Nor was there any indication from the husband or the wife that either sought a settlement of property pursuant to s 79 of the FLA. The marriage was intact when the original application was made and the death of the wife did not enlarge the jurisdiction of the lower courts in any way with regard to a s 79 application. It is true that s 79 endows a very broad discretion on a court exercising jurisdiction under the FLA. It is not, however, an unbridled power even when the necessary jurisdiction is clearly established. In very simple terms the lower courts in each hearing of Stanford made a decision contrary to their power (or in the language of the common law — ultra vires). An application under s 79 for settlement of property formerly shared by parties to a marriage, in most circumstances, is easily made, but we may see more cases in which the courts do not find it ‘just and equitable’ to satisfy that application. See, for example, Simon and Hassett [2014] FCCA 48. The first matter to be heard by the Full Court of the Family Court in the wake of Stanford was Bevan and Bevan.

In Bevan and Bevan [2013] FamCAFC 116 before Bryant CJ, Finn and Thackray JJ, the wife appealed the trial judge’s decision that it was just and equitable to alter existing property interests when the parties had largely lived apart for 18 years and the husband had told the wife she could retain the assets. The Full Court considered the decision of Stanford, as it was submitted on behalf of the wife that the trial judge had applied it inappropriately. Bryant CJ and Thackray J considered the High Court’s position regarding the four-step process:

Although the High Court did not disapprove the four step process, we accept it was not approved either. Given the way the matter was resolved, there was no requirement for a pronouncement either way. However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so: at [65]. Their Honours continued (at [72]): It follows that judges would be well advised to avoid what we consider to be arid discussion of the ‘stage in the process’ at which ‘adjustments’ are permissible. Such discussion tends to elevate the four step process to the status of a statutory edict, when in fact it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so. Their Honours summarised the three ‘fundamental positions’ in Stanford and noted (at [81]) that the third position: … demands separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done. [page 450] Their Honours declined to describe this separate enquiry as a ‘threshold’ issue (at [86]). However, the issues from s 79(2) and (4) must not be conflated, although ‘they are intertwined because the text of the Act links them’ (at [87]). Ultimately, their Honours held (at [89]):

In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. The Full Court consequently found merit in the wife’s ground of appeal that the trial judge had conflated the two questions. Further, it was found that the trial judge: … erred in saying there was ‘no requirement to consider what representations the parties may have made during the marriage or subsequent to separation’. In our view, such representations clearly could be relevant in determining whether it was just and equitable to make an order adjusting existing interests: at [111]. Having found merit in some of the grounds of appeal, the court stood the matter over, allowing the parties to make further submissions regarding re-determination of the matter. The parties made written submissions as required by the court and those submissions were taken into consideration in Bevan and Bevan [2014] FamCAFC 19. The Full Court, again comprised of Bryant CJ, Finn and Thackray JJ, referred to the written submissions and concluded that the wife’s appeal be allowed and the husband’s application for property settlement be dismissed (at [4]).

It is important to note that the Full Court in Bevan did not disagree with the long-held principle of the first step in approaching an application under s 79, namely, to establish the actual property in question and to whom title is to be attributed. This approach bolsters the emphasis by the High

Court of the vital importance of common law principles when a court is asked to alter established title to property. This, however, is merely the first step and not to be confused with the provisions of s 79(4). It will be useful to revisit Stanford and Bevan through the following judgment. It is not necessarily the particular facts of this case that engage us but the provision of clarification and insight into the correct methodology when making an order pursuant to s 79 of the FLA.

In Demara and Montijo [2013] FamCA 612, the wife Ms Demara sought orders pursuant to s 79 of the FLA in relation to her property and that of the husband, Mr Montijo. The value of the relevant property was $3,384,916 with liabilities of $896,274, making the net total assets $2,488,642. This was further reduced by the repayment of a loan to the wife’s parents of $379,167, making the final sum for settlement of $2,488,642. The husband received 54 per cent of the assets and the [page 451] wife 46 per cent. The wife also received an extra 16 per cent on the basis of an adjustment pursuant to s 75(2) factors. The matter was heard by Aldridge J who stated (at [101]–[103]): According to guidelines established through a series of authoritative decisions, the court is required to determine the following matters: having regard to the breakdown of the marriage, if any, is it just and equitable to consider whether the

alteration of the parties interests in their property is just and equitable the assets, liabilities and financial resources of the parties to the marriage all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order. I must first determine whether it is just and equitable that there be an alteration in the property rights of the parties. This must be done by consideration of the relationship, its breakdown, if any, the property held by the parties and the basis on which it was held and used by them. The determination is not to be conflated with the consideration of matters arising under section 79(4) (Stanford v Stanford [2012] HCA 52). In the present case I am satisfied that it is just and equitable to make orders altering the interests of the parties to the marriage to the property held by them. They are no longer living in a marital relationship. The basis on which the ownership of their property and the use of it by reason of them being in a married relationship and living together has ended and it is appropriate that their property interests are altered so as

to meet their new needs and circumstances. The parties join in seeking such an order.

Alteration of property interests 8.29 Here we consider the relevant legal principles applicable in the adjustment of property interests under the FLA and the procedure and process which the courts generally follow in the application of those principles. An understanding of the application of s 79(1), (2) and (4) to various fact situations will be made easier by a recognition of the highly discretionary nature of the decision making of the Family Court. Discretion may be described as the right of a judge to exercise personal judgment, providing his or her decision falls within the ambit and guidelines of the court in which he or she sits. In other words, the discretion is not unbridled and must be made in accordance with accepted legal and equitable principles. This may mean that it is sometimes difficult to reconcile decisions made at different times and by different judges. Nevertheless, it is easy to identify common steps and approaches throughout the cases and to use these as a valuable guide in learning the rules and philosophy of the Family Court when distributing property pursuant to s 79. [page 452] 8.30 In Marriage of Norbis (1986) 10 Fam LR 819 at 823; FLC ¶91-712 at 75,167, Mason and Deane JJ stated:

Section 79(1) of the Act provides that the court may make such order as it thinks fit altering the interests of the parties to a marriage in the property of the parties or either of them. In so providing, the Act confers a very wide discretion on the court. But that discretion is not unlimited. Its exercise is conditioned by the requirement that it is just and equitable to make the order (s 79(2)), and that the court take into account the matters specified in s 79(4) and the general principles embodied in ss 43 and 81, so far as they are applicable.

In Marriage of Mallett (1984) 9 Fam LR 449 at 450–1; FLC ¶91507, Gibbs CJ said: The Family Law Act was passed at a time when great changes had occurred, and were continuing to occur, in the attitudes of many members of society to marriage and divorce, but when it was (as it is now) difficult, if not impossible, to say that any one set of values or ideas is commonly accepted, or approved by a majority of the members of society. Conflicting opinions continue to be strongly held as to the nature of marriage, the economic consequences of divorce and the effect, if any, that should be given to the fault or misconduct of a party when a court is making the financial adjustments that divorce entails. It is not surprising that given this diversity of opinions the Parliament did not require the power conferred by s 79 to be exercised in accordance with fixed rules. On the contrary, it has conferred on the court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made (see sub-ss (1) and (2) of s 79) although there are some broad principles to which the court is required to give effect, and some circumstances which it is required to take into account.

In Marriage of Beneke (1996) 20 Fam LR 841, the manner in which the court should approach a s 79 application was again discussed. Fogarty and Finn JJ stated (at 845–6): Subsections (1) and (2) of s 79 are the governing provisions of s 79, granting both the jurisdiction and indicating the nature of that discretionary power. … Broadly speaking, they can be summarised by saying that s 79(1) gives the court power to order a settlement of property or otherwise alter the interests of the parties in their property while s 79(2) makes the not unimportant point that the court should not do so unless it is satisfied that it is just and equitable to make such an order: see Ferguson (1978) 4 Fam LR 312; FLC ¶90-500. Section 79(4) is the important component in that actual exercise. It sets out the matters which the court is required to take into account in exercising that discretion. In cases under s 79 attention is ordinarily directed to an analysis of and an application of those provisions to the facts of the particular case. In particular, this court has emphasised over the years what is essentially a three-step process: the ascertainment of the property of the parties at trial; an assessment of their contributions within s 79(4)(a)– (c); the factors under s 75(2) through s 79(4)(e), along with, where relevant, paras (d), (f) and (g) of s 79(4). [page 453]

The other essential aspect to bear in mind in any appeal in relation to the s 79 exercise is the wide discretion which that section grants to the trial judge and the consequent limitations upon interference by the Full Court. See also Fadden and Fadden [2009] FamCAFC 157.

8.31 The matter following shows the reluctance of the Full Court of the Family Court to set aside a judgment by a single judge.

The matter of Norman and Norman [2010] FamCAFC 66 before Finn, May and Murphy JJ in the Full Court of the Family Court concerned an appeal by the applicant wife (the wife) against orders of Watts J. In March 2009 his Honour effected a property settlement between the wife and respondent husband (the husband). The parties had been in a relationship that lasted 15 years. The orders made by his Honour reflected an overall assessment that the ‘property of the parties or either of them’ (valued at approximately $1.5 million) should be divided 60 per cent to the husband and 40 per cent to the wife. Before the Full Court the wife appealed those orders made by Watts J. The wife appealed on the grounds that Watts J had failed to properly take into account the wife’s contributions over the course of 15 years of cohabitation, and in particular, that his Honour had failed to realise that the wife’s contributions over the course of the relationship had offset the husband’s original contribution. The wife also argued that Watts J had not properly considered the significant income disparity between the parties and her role as a primary carer for the parties’ two children, as

well as the fact that the husband had not paid child support for approximately three years. Overall, it was submitted that the orders made by his Honour were not just and equitable. The wife did not challenge the accuracy of his Honour’s factual findings, simply the manner in which he dealt with those facts. The grounds essentially challenged the exercise of discretion by the trial judge in considering and weighing the significance of initial contributions, the adjustment to be made for the matters enumerated in s 79(4)(d)–(g) of the FLA and the overall justice and equity of the orders. The Full Court dismissed the appeal. In doing so it referred to a number of longstanding authorities of the High Court of Australia and the Family Court. The Full Court reiterated the longstanding proposition that there is a ‘generous ambit’ within which ‘reasonable disagreement is possible’ in the exercise of the discretion of a trial judge (at [5]). Just two of those cases cited contain judicial statements which would suggest that an appeal against the discretionary finding of a Family Court judgment at first instance is fraught with uncertainty. In applying the legal principles to the matter before them the Full Court stated (at [18]–[19]): The principles to be applied in dealing with an appeal from a discretionary judgment are well settled, of long standing and familiar. They were well summarised by Warnick J [page 454] in G & G [2004] FamCA 1179 [para 82]. We respectfully adopt this summary by his Honour. Warnick J said: … Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted

statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach: … We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.

… In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513; (1986) FLC ¶91-712 at 75,178 [a decision of the High Court] Brennan J stated: The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

The Full Court agreed with the principle stated in the judgments cited that, as an appellate court, it should be very cautious to allow an appeal against the exercise of a trial judge’s discretion where the grounds of an appeal relate only to conflicting assessments of matters of weight. The Full Court stated (at [68]): Having found that no appealable error is demonstrated, the appeal must fail.

The more recent matter of Hoffman and Hoffman [2014] FamCAFC 92 before Faulks DCJ, Murphy and Watts JJ, where the husband appealed the orders of Brewster FM (as his Honour then was), illustrates yet again the nature and breadth of the discretion of the decision maker at first instance and the manner

in which an appeal from the lower courts is treated by the Full Court of the Family Court. The orders resulted in the trial judge settling the assets of the parties in a percentage of 50 per cent of a pool of assets of $9,795,763 to each party. The major complaint by the husband was that the trial judge erred in law by failing to place sufficient weight on the special contributions made to the property by the husband. Before considering the outcome of the appeal it is interesting to consider the matter in the context of the hearing in the lower court in Hoffman and Hoffman [2012] FMCAfam 1061. Brewster FM had a very no-nonsense attitude to delivering [page 455] judgment. When discussing contributions both ‘special’ and otherwise, the trial judge stated (at [32]–[33]): Apart from the ‘special contributions’ issue, which I will turn to shortly, there is nothing unusual about the parties’ contributions during their relationship. They commenced their relationship a long time ago. Each brought a property into the relationship. The wife had a house subject to a loan and the husband a flat. The difference in the values of these properties is no longer relevant. The claim for an additional share based on the physical work the husband performed on the parties’ various properties can be disposed of in short compass. This work was done when the parties still had young children. It is reasonable to assume that the work the husband did on the parties’ properties took him away from the home. It is reasonable to assume that a greater burden fell on

the wife in caring for the parties’ children. I decline to make any contribution based adjustment on this basis. His Honour went on (at [36]–[37]): I do not propose to make any adjustment in favour of the husband by reason of any special contributions made by him. The law in this respect is not settled in Australia and if the husband wishes it to be settled in his favour then an appeal is his appropriate recourse. For reasons I will explain I regard myself as free to form my own view as to the concept of special contributions and I shall indicate what that is and endeavour to explain it. Plainly the list of authorities provided by the husband indicates that my views are not shared by a number of judges of the Family Court and any appeal from my judgment may well be successful. Put shortly I do not accept the principle (if it be a principle) of special contributions. In a case reported as Palmer and Palmer [[2010] FMCAfam 999 at [88]] I said as follows: The concept of ‘special’ or ‘outstanding’ contributions is no stranger to section 79 jurisprudence. In some cases in the past courts have made a contribution based adjustment in favour of an entrepreneurial husband whose skills have brought great wealth to the family. These have been referred to as ‘big money cases’. … However it is fair to say that … the tide appears to be running out in this respect and that era of special contributions may well be at an end.

His Honour was scathing of earlier judgments such as Mallet (1984) 9 Fam LR 449; FLC ¶91-507, saying it ‘need not and should not be followed’ (at [57]). Such a course is permissible because the decision is ‘infected by gender bias’ and its constituent judges were ‘born between 1917 and 1933’, and ‘[t]he zeitgeist of the era when they grew up, and the zeitgeist in 1984 when Mallet was decided, was vastly different to the zeitgeist today’ (at [46]).

The appeal judges were circumspect in relation to his Honour’s many criticisms of earlier cases and his statement that he was ‘free to form [his] own view as to the concept of special contributions’. The Full Court merely said (at [19]): Such significant criticism as might, properly, be directed to broad statements such as those being made by a judicial officer in an inferior court is not central to the disposition of this appeal. The Full Court dismissed the husband’s appeal and, agreeing with Brewster J, said (at [29]): If in using the words ‘the principle (if it be a principle) of special contributions’ (at [37]), the Federal Magistrate intended to hold that there is no ‘binding rule of law’ of special contributions, we respectfully agree.

[page 456] 8.32 Under s 79 of the FLA, the court has the power to make orders redistributing the property of parties to a marriage. In contrast with s 78, the court is not limited to declaring and enforcing existing property rights. It can alter interests and redistribute property, the most obvious example being the order by the court to one spouse to transfer the matrimonial home to the other spouse. The power may be exercised over any property owned by either party, or by the parties jointly. As already stated, there is no concept of ‘matrimonial property’ under the FLA. The power to alter interests is wide, and not limited to property acquired during the marriage. It follows, therefore, that all property owned by

the parties at the time of the hearing may be the subject of an order under s 79(1). This is evident from the terms of s 79(1), which states that a court may make ‘such order as it considers appropriate altering the interests of the parties in the property’.

In Marriage of Carter (1981) 7 Fam LR 41 at 48; FLC ¶91-061 at 76,491, Evatt, Emery and Lindenmayer JJ stated: Section 79(1) is quite clear. It refers to applications as to property of the parties to the marriage or either of them … any property of either party or their joint property can therefore be dealt with by the court. No part of the property is to be separated out and defined as matrimonial property or any other sort of property. There is no part of the property that is to be excluded from the jurisdiction of the court to make an order changing the ownership of that property. See also Stephens and Stephens [2007] FamCA 680 and Kennon v Spry; Spry v Kennon [2008] HCA 56.

General and specific powers: s 79(1) 8.33 Section 79(1) of the FLA has two limbs. The first gives the court exercising jurisdiction under the FLA a general power to alter the property interests of the parties to a marriage. The second limb outlines specific orders which a court can make when exercising jurisdiction under s 79. Section 79 (‘Alteration of property interests’) states: (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 … including … (d) an order requiring: (i) either or both of the parties to the marriage; or … to make, for the benefit of either or both of the parties to the marriage … such settlement or transfer of property as the court determines. … (2) 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.

[page 457]

The basic steps in proceedings under s 79 8.34 Studying the provisions of s 79 of the FLA for the first time, with its many aspects, can be somewhat daunting, particularly when attempting to incorporate the factors in s 75(2) into s 79(4). Before we look further at the application of s 79 and the specific power of the court in a division of property between parties to a marriage, it may be helpful to understand the methodology used by the court when dealing with an application under s 79. This methodology in the

normal course of events follows a series of well-established steps. Up until the matter of Stanford, the Full Court in Marriage of Hickey (2003) 30 Fam LR 355 at 370; FLC ¶93-143 at 78,386 articulated a clear four-step approach which it stated was the preferred approach to s 79 applications: The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four interrelated steps. First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Marriage of Lee Steere (1985) 10 Fam LR 431; FLC ¶91-626; Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC ¶92-335; Marriage of Davut and Raif (1994) FLC ¶92-503; Marriage of Prpic (1995) FLC ¶92-574; Marriage of Clauson (1995) FLC ¶92-595; Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC ¶92-569; Marriage of Biltoft (1995) FLC ¶92-614; Marriage of McLay (1996) 20 Fam LR 239; FLC ¶92-667; JEL and DDF (2001) FLC ¶93-075; and Marriage of Phillips (2002) FLC ¶93-104.

Stanford and Stanford [2012] HCA 52 neither approves nor

disapproves of the findings in Hickey but the High Court intimates (at [37]–[40]) that the application of s 79 is as follows: First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to ‘altering the interests of the parties to the marriage in the property’ (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth [[1956] HCA 71;

[page 458] (1956) 98 CLR 228 at 231–2], Dixon CJ observed that a power to make such order with respect to property and costs ‘as [the judge] thinks fit’, in any question between husband and wife as to the title to or possession of property, is a power which ‘rests upon the law and not upon judicial discretion’. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong [[1976] HCA 39; (1976) 136 CLR 248 at 257]: The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide

discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that ‘[c]ommunity of ownership arising from marriage has no place in the common law’ [Hepworth v Hepworth (1963) 110 CLR 309 at 317]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be ‘decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses’ [Hepworth at 317]. The question presented by s 79 is whether those rights and interests should be altered. Third, whether making a property settlement order is ‘just and equitable’ is not to be answered 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 which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’ [R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257]. To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. [footnotes omitted]

From this judgment we understand the High Court confirmed that the ‘just and equitable’ requirement is a separate and distinct step in the application of s 79.

The obligation to make an order that is just and equitable 8.35 It should be noted, however, that consideration of s 79(2) is double edged. It is used at the start of a judgment in order to work out whether the circumstances of the parties enliven the Family Court jurisdiction to make an order altering the property interests of the parties. In this context the demands of justice and equity are uncomplicated. In simple terms the court considers the relationship, the breakdown, if any, and the property held by the parties and the basis by which they hold such property. The justice and equity principal is again taken into account when a decision has been made as to the actual distribution of property. [page 459] 8.36 The specific factors required to be taken into account before the court considers whether an order is just and equitable are to be found in ss 79(4) and 75(2) so far as they are relevant: Marriage of Neale (1991) 14 Fam LR 861; FLC ¶92-242. The term ‘so far as they are relevant’ allows the court to match the specific factors found in s 75(2) to the circumstances and facts of the case before it at any given time. It would be a very rare occurrence indeed for each and

every specific factor in s 75(2) to be applicable to a particular case. 8.37 The question has arisen as to the proper relationship between s 79(2) and 79(4) of the FLA. While it is clear from the terms of both subss (2) and (4) that each affects the exercise of a court’s discretion under subs (1), the reported cases on this matter confuse rather than enlighten. Some judgments suggest that the court should look first at subs (2) and then at the provisions in subs (4): Marriage of Zappacosta (1976) 2 Fam LR 11,214; FLC ¶90-089. Other judgments indicate that the court should look first at the factors contained in subs (4) and only then at subs (2): Marriage of Mallett (1984) 9 Fam LR 449; FLC ¶91-507. To add to the confusion, other cases say that the court should consider both subsections together: Marriage of Currie (1976) 2 Fam LR 11,307; FLC ¶90-101. What is not in doubt, however, is that any order that the court makes under s 79(4) is subject to the requirement of justice and equity under s 79(2). This means that s 79(2) has an overriding effect on the court’s discretion under s 79(1) and therefore controls the way in which the court takes into account the specific factors set out in s 79(4). The following matter relates to the application of ss 75(2) and 79(4) and the requirement that an order in a settlement of property ‘be just and equitable’.

In Baxter and Baxter [2010] FamCAFC 183 there was an appeal from a decision of Neville FM involving both superannuation interests and non-superannuation assets (a house). The applicant wife appealed on the basis that the orders handed down by Neville FM did not meet the standards of justice and

equity in that, inter alia, the division of property to the wife was ‘manifestly inadequate’ (at [3]). Nor did Neville FM give reasons for the findings made in relation to the contributions of the wife. In addition, it was argued on behalf of the wife that Neville FM was inconsistent in whether the division of the property should be treated as one pool or two (at [30]). The Full Court (Bryant CJ, Finn and Boland JJ) said (at [31]) that ‘his Honour does appear to have moved from a one pool approach … to a two pool approach’. The Full Court said that although it was correct to recognise the husband’s greater contributions to the parties’ superannuation entitlements overall ‘given the much longer period for which the husband had through his employment been contributing to his superannuation’ (at [34]), his Honour’s reasoning (in assessing contributions to the nonsuper assets at 60 per cent to the husband, each party to keep their own super ‘untouched by the other party’ (at [17])) was held to be ‘not sufficiently clear’, adding (at [35]): Indeed the following calculation by counsel for the wife indicates that the ultimate result may well not have been just and equitable to the wife: … The wife received 55% of the non superannuation assets and just 19% of the superannuation interests. The husband received 45% of the non

[page 460] superannuation assets and 81% of the superannuation interests. As a result the value of the property and superannuation received by the wife was about 33% of the total net asset pool of $317,214.00 …

The Full Court also found error in the s 75(2) adjustment (15 per cent to the wife) ‘which was only made in relation to the nonsuperannuation assets’, saying this (at [45]–[46]):

So far as the pool comprising the superannuation interests is concerned, it can simply be said that in the circumstances of this relatively short marriage, where both were working for much of the time, it is artificial … to regard either party as having made any indirect contribution of any real worth to the other’s superannuation interest. Both should be regarded as having made the sole contribution to his or her own superannuation interest. That does not, of course, mean that those interests should then be overlooked (as his Honour appears to have done) for purposes either of considering whether a s 75(2) adjustment is required, or assessing the justice and equity of the ultimate orders. The disparity in their respective superannuation interests is itself a matter for consideration under s 75(2). However, given that neither party ultimately sought a splitting order in relation to the other’s superannuation interest, it is unnecessary to attempt to make any adjustment of either party’s superannuation interest on the basis of the matters in s 75(2). Rather any s 75(2) entitlement or adjustment in relation to either’s superannuation interest is more appropriately satisfied out of the non-superannuation assets. The Full Court added this (at [47]): While it may well be possible in the case of a relatively short marriage [5 years in this case plus a year of premarital cohabitation] to demonstrate more effectively than in the case of a longer marriage, the superiority of the financial contributions of one party …, non-financial and homemaker contributions must also in relatively short marriages be given appropriate, and not just token weight (Mallet v Mallet (1984) 156 CLR 605). The Full Court proceeded to reassess the parties’ contributions to the non-super assets as equal (net assets to each of about

$60,000) and s 75(2) factors, being the wife’s health concerns, her more limited capacity to earn income and to increase her super, and the husband’s greater existing super, as 20 per cent (of the net nonsuper assets of $120,000), resulting in the net non-super assets being divided 70/30 in favour of the wife with no division of their super interests (at [50]). As to retention of the home, the Full Court said (at [53]): If the wife wishes to retain the home she will need to pay the husband 30 per cent of the net value of the nonsuperannuation assets (of $120,722.00), being $36,217.00. If she cannot raise this amount, the home will have to be sold and its net proceeds shared in the proportions of 70 per cent to the wife and 30 per cent to the husband.

In Danford and Danford [2010] FamCA 420, an appeal case, the primary issue was the treatment of the damages received by the husband for his personal injuries and the weight to be given to any extra contributions made by the wife as a result of the husband’s incapacitation due to such injuries. The husband appealed against an order of Rose J awarding him 58 per cent of the property pool. In particular the [page 461] husband appealed on the ground that his Honour misapplied the s 75(2) factors. The Full Court of the Family Court dismissed the husband’s appeal. In doing so it again discussed the considerable breadth of discretion of a court of first instance. Rose J at first instance heard a property case where the parties

had been together for 24 years and had three adult children. They operated a furniture sales business until 17 years into the marriage when the husband was severely injured, resulting in the amputation of a limb and treatment for chronic pain and many residual physical and psychological disabilities. Their net assets at trial were valued at $2.5 million ($1.4 million of which was a damages award received by the husband in the year of separation) and superannuation in excess of $500,000 (held by the parties in about equal funds). The asset pool included paid legal fees and disbursements, which were added back in accordance with established authority (at [2]). Rose J declined to add back, as sought by the wife, $26,000 ‘wasted [by the husband] on prostitutes’ in the three years since separation, saying (at [57]–[59]): In Gollings and Scott [(2007) FLC ¶93-319 at [68]] the Full Court held that ‘[a]s a general rule once the parties have separated, subject to obligations of maintenance and support, and subject to the kinds of considerations described in Kowaliw (1981) FLC ¶91-092 relating to waste, each party is entitled to get on with his or her life independent of the other’. The Full Court held that the husband in that case was free to spend money earned post separation ‘in the furtherance of his relationship’ with a particular female friend. The Full Court further stated ‘it would not normally be appropriate some years after separation to require each of the parties to account for any monies they had spent post separation so as to determine whether or not that expenditure was reasonably necessary for their own self-support and to the extent that it was not, to determine whether it would be proper to add it back into

the pool of assets available for division between the parties’. Finding that the parties’ contributions to the time of the accident were equal, Rose J found (at [82]) that since the accident, ‘the wife’s direct and indirect financial contributions as well as her contribution in the role of homemaker and parent significantly increased’. She took a ‘pivotal role’ (at [89]) in the primary conduct of the business seven days a week and the care of the husband for several years at the same time as providing care for their children requiring ‘a Herculean effort’ (at [122]). She had received bequests of about $60,000 and the husband family gifts of about $45,000. Applying Aleksovski (1996) FLC ¶92-705 at 83,437 in which the Full Court held that a damages award is the contribution by the party who suffered the injury, Rose J assessed contributions as to the net assets (excluding superannuation) as 55 per cent in favour of the husband. Contributions to the superannuation were assessed as equal in that each had made contributions to their own funds to the best of their ability (at [119]). Section 75(2) factors, including the husband’s continuing disabilities, need for further treatment and domestic assistance and income disparity, were assessed as an adjustment of 3 per cent in favour of the husband. [page 462] In understanding why so many appeals fail before the Full Court of the Family Court the following statements by the Full Court in Danford and Danford [2011] FamCAFC 54 at [49]–[50] citing from the judgment of the High Court in House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513 are useful:

Before discussing [the husband’s] complaints, we should record the limitations on appellate interference with discretionary judgments. These were explained in House v The King (1936) 55 CLR 499 (at 504–505) in these terms: 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.

In considering an appeal against the exercise of the discretion conferred by s 79 of the Act, the following passage from the judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 (at 539–540) is also instructive: The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v Satterthwaite [[1948] 1 All ER 343 at 345], Asquith LJ stated the rationale of an appellate court’s approach: It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which

reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.

The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

In the following case the husband appealed against a judgment of Demack FM that the parties’ contributions during the marriage were equal and in addition he asserted that her Honour failed to give the husband proper recognition for his initial contribution to the property of the marriage. [page 463]

In Manolis and Manolis (No 2) [2011] FamCAFC 105 a 26-year marriage had produced no children but an asset pool of $4 million. The husband (75) and wife (57) were both retired. In contention was the husband’s premarital contribution of $40,000 from the sale of his business which was used to establish another business which, four years into the marriage, was sold at a profit of $800,000. Demack FM held contributions (the ‘second step’) to have been equal but under the ‘just and equitable’ provision of s 79(2) of the FLA (the ‘fourth step’) made an adjustment of 5 per cent for the husband’s initial contribution as it ‘was a springboard for the successful sale of the [V Pty Ltd] business only four years into the parties’ marriage’. No

adjustment was made for s 75(2) factors. The husband appealed and the wife cross-appealed. The Full Court (Coleman, May and Ainslie-Wallace JJ) reviewed the case law as to how an initial contribution is to be assessed (at [62]), in particular, Pierce and Pierce [1998] FamCA 74 at [28] in which the Full Court said: 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 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. In the present case that use was a substantial contribution to the purchase price of the matrimonial home … The Full Court also (at [63]) cited Hickey and Hickey and Attorney-General (Cth) [2003] FamCA 395 in which the Full Court explained ‘what is now accepted as a four step approach’ to the determination of a s 79 application. As to the fourth step, being the ‘just and equitable’ provision in s 79(2), the Full Court concluded (at [65]–[66]) that while a court had the power to make a further adjustment after the ‘third step’ of assessing s 75(2) factors, the trial judge’s assessment of contributions was in error (at [67]) due to ‘an inconsistency in the reasoning in relation to the effect of the husband’s contributions’ (between the finding of equal contributions at the ‘second step’ and the need for an adjustment at the ‘fourth step’). The Full Court allowed the appeal and upon a re-exercise of the discretion of the trial judge said (at [71]): In our view the husband’s contributions were greater than that of the wife by reason of the business at the

time of the marriage which provided a ‘springboard’ for the later businesses. We would assess the parties’ contributions to the date of the separation as 55 per cent in favour of the husband. There are no circumstances by which that percentage would alter to the date of trial. No adjustment was made for s 75(2) factors. The court also allowed the appeal on the ground that the trial judge’s order for the division of money held in trust failed to provide the wife with a share of the interest earned on that money. The trial judge’s order as to disbursement of that money was amended accordingly.

Medlow and Medlow [2016] FamCAFC 34 before May, Ryan and Aldridge JJ presents a good example of the adage ‘money cannot buy happiness’ or indeed ‘money is the root of all evil’. Whether the old adages are true or false, the matter before us speaks of huge amounts of money and the manner in which the Family [page 464] Court in a trial of first instance should make orders which are ‘just and equitable’ to the parties concerned. This was an application by the wife for leave to appeal against the orders of Loughnan J in which the applicant husband successfully sought an interim property order for a disbursement of $2.9 million (see Medlow and Medlow (No 2) [2014] FamCA 530). The wife opposed this order as a depletion of the property pool for a future settlement and in addition complained that the husband had failed in the strict obligation to make full and frank disclosure of his finances. Loughnan J, however, carefully went through the application of s 79 and having carried that out, decided (at [30]): ‘On the balance of probabilities it will be just and equitable that the parties have relief under s 79.’ In relation to the assertion of the wife of lack of disclosure by the husband and that he had diverted, hidden or wasted assets, Loughnan J said (at [58]–[60]): … It is variously asserted by the wife that the husband has had access to something like $25 million over recent years and has failed to account for all but about $900,000 of that fund. The wife expresses her fears, based on conversations she reports, that those funds have not been lost but that they have been hidden.

Of course it is possible that some or all of the wife’s fears are correct. The question is, is that sufficient for a finding on the basis of which the husband’s application should be dismissed? In my view it is not. I propose to grant the husband’s application. There are reasons, including compelling reasons for the husband to have immediate access to funds. He has a case to make under s 79 that exceeds $2.9 million by a significant margin. On the balance of probabilities, the disbursement of $2.9 million will not threaten the wife’s claim. The parties’ began living together in 1990, married in 1992 and separated in December 2008. They have two children: E who is now 21 years of age and F who is 16 years of age. The husband also has four adult children from an earlier marriage. At the commencement of cohabitation the wife was 22 years of age and had no significant property. The husband was 42 years of age and even after achieving a settlement of property with his first wife, had accumulated substantial wealth. This current matter has been running since 2010 when the proceedings for a property settlement under s 79 were initiated. At this time the pool of assets was also impressive. The wife adduced evidence from a chartered accountant who had investigated the parties’ assets. He expressed the opinion that, as at 30 June 2010, the property of the parties was valued at not less than $73 million. Nevertheless, this was complicated by several factors involving the husband. In addition to these proceedings the husband is involved in additional litigation as follows: criminal proceedings in which the husband is charged with murder; proceedings in the New South Wales Supreme Court in which there are claims and counterclaims for significant sums of

money. The husband’s assets of up to $15.5 million have been frozen; and proceedings in the New South Wales Supreme Court over significant holdings of land in which the Family Court of Australia has granted an injunction restraining the husband from settling that litigation. [page 465] The husband closed a sale of one of the parties’ properties for $37 million prior to consent orders being effected for a refinance (which the husband urgently needed to pay legal fees). The wife contends that the consent orders were falsely obtained as she was not given notice of, among other things, the freezing of the husband’s assets in the criminal proceedings. The Full Court allowed the wife’s appeal. Although space does not allow a discussion of every point made by May, Ryan and Aldridge JJ, their exploration of, first, whether they have the power to grant an appeal of an interlocutory decision and, second, if the Full Court does have such power, how ought it be used in achieving justice between the parties, is noteworthy. The Full Court said (at [55]–[57]): The adoption of a new test, in the form currently applied by the Federal Court, does not cross the boundaries mentioned in Norbis v Norbis [[1986] HCA 17] and Decor Corporation Pty Ltd v Dart Industries Inc [[1991] FCAFC 844] because it is a litmus test to be applied in the general run of cases but always in the context of the unfettered discretion given by s 94AA. In appropriate cases, it being a test or a guideline, it will give way to the particular interests of justice in that case. We see merit in the Niemann test [Niemann v Electronics

Industries Ltd [1978] VR 431] for the reasons set out by the Court as quoted above in Jess and Jess [(2014) FLC ¶93-620]. Having regard to what was said there by their Honours and the issue being fully argued by senior counsel before us we see no reason to maintain the reluctance felt by that Full Court. We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. And (at [91]): It follows that the husband’s submission that he should receive an interim settlement of $2.9 million from the wife’s share of the Suburb C property proceeds of sale because at a final hearing he would be entitled to at least that additional sum cannot be accepted. The primary judge could not have been satisfied on the evidence and the submissions before him that it was inevitable that the husband would receive an additional $2.9 million or that it could be ‘clawed-back’ at a final hearing. The husband had already received $15.5 million of the parties’ property which was at risk of being lost. If the husband’s application was accepted, the husband would, potentially, have received not $2.9 million but $18.4 million from the Suburb C property. The Full Court concluded (at [102]–[103]): It is true, as the primary judge correctly observed, that the Court was not in a position to make findings on the disputed issue as to what the wife was told of these

orders in various meetings. However, what was clear is that the husband breached the 14 January 2011 orders by agreeing to the orders in the Mr G litigation. He then breached those orders by not providing the wife with a copy of the orders until after the 8 April 2014 orders had been entered into. In other words, all that was in dispute was what the wife had been told about the Mr G litigation orders not that there had been a breach, which is beyond doubt. These breaches of the orders were significant matters which should have been given considerable weight. The primary judge erred in not doing so.

[page 466] In the matter below, the applicant wife sought an interim division of the assets so that she would receive $10 million in order to buy a house in which she and four children of the marriage would live. Her application did not succeed.

In Sully and Sully (No 2) [2016] FamCA 706 Stevenson J dismissed the wife’s application for a partial property settlement of $10 million to buy a new home for herself and the children of the marriage. The husband estimated the net value of his business (X) at $55 million after tax. Upon receiving $1.1 million from the husband, the wife discontinued her interim maintenance application. The home was worth $10 million, the husband had property of $9 million in his name and the wife $7 million in hers (her investment properties returned net rental income of $3,700 per week).

After citing Strahan and Strahan (Interim property orders) (2011) FLC ¶93-466, the court noted the husband’s evidence that he had no access to funds outside X; that its funds were reserved as working capital; that X would require capital for a development project; that a large tax debt would be generated if $10 million were extracted from X; and that X’s ability to honour commitments to third parties may be compromised. Stevenson J added that such money could not be extracted from the parties’ assets without a sale of the home which ‘would mean that the four children [and husband] … would need to be reaccommodated’ (at [25]–[29]), although ‘the children’s future living arrangements are far from clear (the parties’ son J having refused to spend time with the wife since separation and the husband seeking final orders for primary residence)’ (at [35]). From the point of view of Stevenson J there was insufficient certainty in all of the facts before the court (this included the question of with whom the children would live) for it to be considered just and equitable to prematurely disturb the status quo until final property orders were made.

Ascertaining the property of the parties 8.38 Section 79, unlike s 78, requires the court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. Each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Marriage of Oriolo (1985) 10 Fam LR 665; FLC ¶91-653; Marriage of Black and Kellner (1992) 15 Fam LR 343; FLC ¶92-287; Marriage of Weir (1992) 16 Fam

LR 154; (1993) FLC ¶92-338; Marriage of Tate (2000) FLC ¶93-047. 8.39 It is now well established that, in proceedings for an alteration of property interests under s 79 of the FLA, the court must of necessity determine precisely what property is in the possession of each of the parties to the marriage at the time of the hearing. See the definition of property in 8.15. [page 467]

In Marriage of Duff (1977) 3 Fam LR 11,211 at 11,215; FLC ¶90217, the Full Court of the Family Court stated: We are of the view that the intention of s 79 is to enable the court to take into account and assess all the property of the parties upon being asked by either of them to make an order altering the interests of the parties in the property. In making this statement, the court was acting on the implicit intention in the words of the first limb of s 79(1), which states: ‘In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property.’ See also Fadden and Fadden [2009] FamCAFC 157. For a discussion of the validity of the approach taken in Duff, see Stephens and Stephens [2007] FamCA 680; Kennon v Spry; Spry v Kennon [2008] HCA 56; Simmons and Simmons [2008] FamCA 1088.

8.40 The term ‘the property of the parties to a marriage or either of them’ makes it plain that with regard to s 79(1) of the FLA, the circumstances of acquisition, that is, how or when the property was acquired, are irrelevant at this initial stage of proceedings. Nor does the location of the asset, or its type, matter. It is vital, therefore, that both parties are truthful in revealing all of their property interests, whether legal or equitable. Indeed, there is a strict obligation on the parties to disclose all matters of financial importance which may have an impact on the final outcome of the court’s deliberations. This obligation to disclose relevant matters of personal finance is made plain in the rules and regulations of the Family Court.

Duty of disclosure 8.41 The Family Law Rules 2004 (Cth) specifically outline the requirements for full and frank disclosure: rr 12.02, 12.03, 12.05, 12.06, 13.01, 13.02, 13.03, 13.04, 13.05, 13.06, 13.07. 8.42 As can be seen from the Family Law Rules, a party to proceedings must make a full disclosure of his or her financial circumstances verified by affidavit known as a financial statement. The financial statement should set out any interest, whether presently vested or contingent, which a party may have in property of any type, companies, trusts, benefits under wills, superannuation schemes and the like. The court has repeatedly held that failure to make full disclosure, or evidence that a party has lied in relation to his or her income, financial resources or property, may result in an exercise of discretion by the court detrimental to that

party. In addition, failure to disclose may have a bearing on costs. In other words, costs may be awarded against the nondisclosing party: Marriage of Oriolo (1985) 10 Fam LR 665; FLC ¶91-653; Marriage of Suiker (1993) 17 Fam LR 236; FLC ¶92-436; see also Monroe and Monroe [2009] FamCAFC 173. A lack of frankness may also result in the court deciding to make an estimate of the amount which a party has failed to disclose, and make subsequent orders benefiting the other party. [page 468]

In Marriage of Weir (1992) 16 Fam LR 154; (1993) FLC ¶92-338, the wife appealed against Family Court orders made in proceedings for property settlement. The husband had a business, and investigations by the wife’s accountant suggested that certain sales might not have been disclosed properly in the books of the company. These sales were in excess of $150,000. The husband gave a partial explanation of the discrepancies, but other damaging evidence was given by the adult son of the parties, who testified that the husband had a practice of pocketing cash payments and failing to record them. The trial judge awarded an equal division of the property. The wife appealed to the Full Court of the Family Court. The court varied this, by estimating that $50,000 of the money was accounted for by the husband’s explanations, and ordering that the husband pay to the wife one half of the remaining $100,000, in addition to the sum ordered by the trial judge. In the Full Court, Nicholson CJ, Strauss and Nygh JJ stated (at 158): [O]nce it has been established that there has been a deliberate nondisclosure … then the court should not be

unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

In Gerber and Gerber [2010] FamCA 861 Coleman J found that the husband had failed to fully or frankly disclose his financial circumstances in the post-separation period or at the date of trial. Applying Marriage of Weir (1992) 16 Fam LR 154; (1993) FLC ¶92-338, Coleman J decided to notionally increase the $1.6 million asset pool by $500,000 under s 75(2)(o) in reliance upon benefits derived by the husband after separation from a business previously carried on by a company owned as to one half by the husband and wife but transferred at separation to a company in which they had no legal interest. The husband’s brother conceded at trial and the court found that the husband beneficially owned 50 per cent of the acquiring company, the value of which could not reliably be determined as its income had been significantly understated. Coleman J said (at [380]): To regard the husband’s interest in B Pty Ltd as being worth no less than $500,000, whilst not being unduly cautious, can be supported by reference to the evidence of the benefits which B Pty Ltd has provided to him over the last six years. If having regard to that sum is excessive, the husband cannot complain. It was always open to the husband to ‘come clean’. To the end, he deliberately failed to do so.

In Marriage of Stay (1997) 21 Fam LR 626; FLC ¶92-751, a

husband’s non-disclosure of details of the trusteeship of his superannuation fund, of which he was the only member, led the court to conclude that the husband exerted a sufficient degree of control over the fund for it to be counted in as ‘property’ rather than merely a financial resource: see also Marriage of Stein (1986) 11 Fam LR 353; FLC ¶91-779; Marriage of Mezzacappa (1987) 11 Fam LR 957; FLC ¶91-853; Marriage of Black and Kellner (1992) 15 Fam LR 343; FLC ¶92-287.

[page 469] It is not uncommon that the evidence in s 79 proceedings reveals that one or both parties, or other persons, may have been guilty of some fraud, tax evasion, or the like. In such cases, the question has arisen whether the court should of its own motion draw the evidence to the attention of the relevant authorities. The normal mechanism for this is for the court to refer the relevant documents — which may be affidavits, exhibits or transcripts — to the Attorney-General. It is then a matter for the Attorney-General whether to take further action. The Full Court considered the matter in some detail in Malpass and Mayson (2000) 27 Fam LR 288; FLC ¶93-061. The Full Court expressed no final conclusions on the issue, but said it did not necessarily follow that the court is always under a duty to report the fact of commission of possible offences. In effect, the Full Court recognised that it would be unreasonable for the court to be expected to report all such matters whether of a high or low degree of seriousness. Were the court, however, to be faced with a high degree of

culpability on the part of a person before it, then it is likely that such a matter would be reported to the Attorney-General for further investigation and necessary action. Even where final orders have been made and a party to those proceedings discovers non-disclosure of a material fact, they can reopen the matter by way of an application in a case pursuant to s 79A of the FLA. In Paget and Dubois [2013] FCCA 1746 final orders were made in 2010 in respect of property of the parties. In 2013 the wife filed an application in case to set aside those orders. The basis for her application was reliant on hearsay evidence that the husband had hidden an overseas bank account containing £250,000 (approximately $383,433). The husband denied that. Burchardt J ordered the husband to provide the wife with a customer authority required by the bank to enable her to make inquiries of the bank as to any account held by the husband in 2009 or 2010. The wife was to bear the costs of such investigation.

Debono and Debono (No 2) [2012] FamCA 1086 before Young J involved 10 hearings before the court (in the final hearing of which each party was represented by senior and junior counsel). The court estimated legal fees of $200,000 to be paid by the husband and $270,000 by the wife (at [171]). Although the facts of this matter with regard to the financial wealth of the parties and lack of full disclosure should be noted, it is the statements and observations of Young J which provide a fascinating insight into the many nuances of a judgment. Young J was in no fear of any need to be subtle when describing the matter before him. Essentially, his Honour criticised the parties and their extended families for acting in a way that inevitably protracted a matter that was relatively a straightforward one (at [1]).

The animosity between the parties was based on more than financial matters. The husband alleged that the wife was physically violent towards him. As a result, he was protected by a 12-month family violence intervention order against her (at [432]). In relevant documents before the court the husband referred to the wife as ‘a little witch’ (at [433]). [page 470] Young J stated that he had not taken into account the conduct in evaluating and determining the division of the property but nevertheless it appears he did take into account the credibility of each party, to the disadvantage of the husband. In common with most matters for adjudication before the Family Court, the credibility of the parties has a considerable bearing on the views of the judge. Much of the evidence in relation to the failure by the husband to reveal the full extent of his assets acquired before and after separation was revealed by the fact that for a considerable period the wife had the password of the husband’s personal and business email accounts. Perhaps it might be said that in keeping with the old adage that ‘all is fair in love and war’ the wife used the knowledge to considerable advantage. It was only when the husband was served with the affidavits of the wife that he realised the extent of her knowledge. His Honour found the net asset pool to be $3,636,485 of which the wife was to receive 55 per cent and the husband 45 per cent. Since this case, there have been a number of cases all relating to the enforcement of Young J’s orders: Debono and Debono [2013] FamCA 46; Debono and Debono (No 2) [2013] FamCA 797; Debono and Debono (No 3) [2013] FamCA 872; Debono and Debono [2014] FamCA 3.

Justice and equity can be reflected only in light of the truth

with regard to the joint assets of the parties to be settled. The applicant in the matter following was a lawyer who should have been both aware of the law and ethics when approaching the Family Court seeking a remedy.

In Jamine and Jamine (No 2) [2012] FamCAFC 104 before Thackray, Strickland and Ainslie-Wallace JJ the husband unsuccessfully appealed an order of Cronin J as a result of which the wife was awarded a loading of 15 per cent for s 75(2) factors of which 5 per cent was expressly related to his finding that the husband had failed to disclose the full extent of his assets. His Honour pointed out that s 75(2)(o) allows a court to take into account any fact or circumstance which the justice of the case requires. In discussing the impact of the husband’s non-disclosure on the s 75(2) adjustment, the Full Court referred to Cronin J’s reference to Kannis and Kannis (at [21]): It is also instructive to recall the observation of the Full Court in Kannis and Kannis [[2002] FamCA 1150] … that this robust approach is not confined to deliberate nondisclosure. Where a court is satisfied that the pool may be greater than is clearly demonstrated, the court can ‘err on the side of generosity’ to the party who might otherwise have been seen to be disadvantaged by that disclosure. Here, the issue is all the more perplexing because the husband is a practicing [sic] lawyer. I reject the suggestion that his non-disclosure is as a result of some health issue.

Valuation of property 8.43

Before a court can exercise its discretion in adjusting

the rights of the husband and wife with respect to their property under s 79 of the FLA, it is important that the true value of the property be ascertained. The valuation of the relevant property is usually achieved by determining the gross value of the parties’ property and [page 471] deducting the value of outstanding mortgages, debts and other liabilities. There is a body of case law on issues that have arisen in connection with valuation and we will consider these issues now. In the normal course of events, the valuation as at the date of the hearing is that most conducive to the achievement of justice and equity in the final division. This rule is, however, not set in stone. In some cases, it may be necessary to ascertain the value of the property at a date other than at the date of the hearing. The process of taking into account contributions and s 75(2) factors is a complex one and the value of property at different dates may be significant in determining the final outcome of an application under s 79.

An example of the importance of dates other than the date of the hearing is to be found in Marriage of Cozanitis (1979) 4 Fam LR 709; FLC ¶90-643. The husband and wife purchased a rundown milk bar in 1972. They separated in 1973. Subsequently, the wife made an application for alteration of property interests and this hearing did not take place until 1978. The business in the meantime had been built up by the husband through his own personal efforts, without the assistance of the wife. The Full

Court of the Family Court held that in these particular circumstances, the proper time to value the property was at the time of separation.

Methods of valuation 8.44 No method for the valuation of assets is prescribed in the FLA. Accordingly, the court is free to exercise its discretion in each case as to the method of valuation that is most appropriate. The court does not, however, conduct its own inquiry. Evidence of value is properly given by expert witnesses. The approach to the valuation of real property is relatively settled. Evidence as to valuation of real estate is usually given by a licensed valuer, although it is open to the court to accept the evidence of a real estate agent as to the valuation of a particular property. The valuation will usually be reached by reference to comparable sales of real estate or, where the property is an investment property, by reference to rental value and comparable sales. In relation to items of personal property, such as artwork and the like, it has been held that a relevant consideration is whether there is likely to be a need to realise the property in the short term. If that is the case, the value should be set by the amount that would be realised at auction rather than private sale: Marriage of Shaw (1989) 12 Fam LR 806; FLC ¶92-010; see also Duke and Duke [2009] FamCAFC 174. In the following case, the husband and wife were criticised by Altobelli J for complicating a matter which his Honour found to be straightforward.

In Green and Morgan [2010] FMCAfam 1514 Altobelli FM rejected the terms of a letter appointing a valuer to value the husband’s businesses proposed by the wife’s lawyer, saying (at [1]–[4]): The aim of the exercise was … rather simple, but to a certain extent I think both parties have lost sight of this. It has become, regrettably for the husband and wife, [page 472] an expensive exercise in point scoring, finger pointing and pernickety posturing. I really wonder whether someone has lost the plot here. I cannot work out whether it is the husband and wife who are locked in a personal battle or whether it is their respective lawyers. Maybe everyone should take a deep breath and ask themselves that question. This relatively simple exercise, drafting a letter to appoint a valuer to value two businesses has, in my opinion, been blown right out of all proportion. The applicable law is found at Pt 15.5 of the Family Law Rules. A single joint expert was appointed to deal with the discrete issue, valuation. The issue the single joint expert has been asked to resolve is not non-disclosure or other alleged perfidious behaviours. The role of the single joint expert is not to gather or endorse evidence to support one party’s assertion of alleged perfidious behaviour. The role of the single joint expert is to provide expert evidence on one issue only, and that is valuation. Rule 15.54(2) para (c) provides that: Full and frank disclosure of information and documents that will help the expert witness to perform the expert’s function must be included in a letter of instructions. The expert witness may request

further information that is implicit in the Rules, but in any event, r 15.60 enables a single joint expert to actually seek orders in this regard.

There is a separate regime for asking questions of a single joint expert but that is once the report has been prepared and, of course, this is found in r 15.65 to r 15.67. The party asking the question must pay the single joint expert for this. The draft letter prepared by the solicitor for the wife, which is attachment A in the husband’s submissions, does not comply with the Rules. It contains irrelevant, extraneous content that goes beyond the scope of the letter instructing a single joint expert to value a business. It contains inflammatory and subjective assertions of fact that are not properly to be found in a letter engaging a single joint expert. It is not the role of a letter engaging a single joint expert to address the specific ‘concerns’ of the wife, to quote what was contained in the letter. These are matters best dealt with as specific questions once the report has been prepared. I agree with almost all of the criticisms made of this letter by the solicitor for the husband. I prefer the form of letter proposed by the solicitor for the husband.

In the matter of Swarb and Swarb [2013] FamCA 404 before Coleman J valuation evidence adduced by the parties as to the husband’s interest in real estate in a foreign country were 500 per cent apart. Part of the property consisted of a 40 per cent share that the husband had in a property in Lebanon. The wife asserted the husband’s share was valued at $342,000 while the husband claimed it was valued at $23,000. Coleman J was critical of the husband’s lack of candour in relation to his assets. The husband’s evidence was not consistent. His Honour stated

it was not within the expertise of the court to arrive at the correct valuation. Although not entirely comfortable with the decision, Coleman J was more open to the valuation on behalf of the wife, stating (at [76]): … whilst the Court is unable to accept without qualification the expert opinion evidence of the wife’s valuer, the Court is persuaded that the figure asserted by the wife’s valuer is probably closer to the real value of the husband’s interest in Property C than is the figure asserted by the husband’s valuer. His Honour relied on the photographic evidence provided by the wife’s valuer. [page 473] The matter was in part resolved by the wife abandoning any interest she may have had in the property in Lebanon while receiving a much greater percentage of the matrimonial home (at [122]–[123]).

Valuing company shares 8.45 In valuing a party’s shareholding in a company, the main focus is to ascertain the real value of the shares: Marriage of Mallett (1984) 9 Fam LR 449 at 464 per Mason J; FLC ¶91-507. It is clear that what is to be valued is not the business itself, but rather the party’s shareholding in that company: Marriage of Gamer (1988) 12 Fam LR 73; FLC ¶91932. It is obvious, however, that in order to arrive at the true value of the shareholding, it may first be necessary to value

the company. Where the shares in question are shares in a public company, the market for those shares will denote their true value. The market price will be listed on the stock exchange: Spencer v Commonwealth (1907) 5 CLR 418.

Liabilities 8.46 In proceedings under s 79 of the FLA, the Family Court normally values the total property of each party to the marriage by deducting the value of all of the party’s liabilities from the gross value of his or her assets. The method is a practical one in that it allows the court to have regard to each party’s net worth. So, for example, if a wife owns two houses, one valued at $250,000 with no mortgage and one valued at $175,000 with mortgage liabilities of $75,000, and has a personal overdraft of $10,000, a tax liability of $12,000 and a non-secured debt to her father of $25,000 (in the past the $25,000 was referred to as Dad’s ‘generous gesture’), the total value of the wife’s property will normally be assessed at $303,000, or $328,000, depending on the attitude of the court to the status of the alleged debt to her father. With regard to the sums of $75,000, $10,000 and $12,000, their recognition as liabilities is assured. The court, however, must be convinced that the alleged $25,000 owed to the wife’s father is in fact a debt: Monroe and Monroe [2009] FamCAFC 173. The court, in its discretion, may choose to ignore a particular unsecured liability if it believes the circumstances make it proper to do so. The liability of the parties presents no difficulty where a debt is a secured one, and even unsecured debts properly evidenced will normally be deducted in the same way. The situation is less clear,

however, where there is potential liability attaching to assets being distributed. Where the debt or liability is a contingent one, the court must assess the probability of the potential liability arising.

In Marriage of Biltoft (1995) 19 Fam LR 82; FLC ¶92-614, it was held that liabilities that are vague or uncertain, which are unlikely to be enforced, or which have been incurred unreasonably, may be ignored. In that case it was also said, however, that liabilities that are neither sufficiently certain to be deducted in full, nor sufficiently vague to be ignored completely, should be taken into account and balanced against the right of the non-debtor spouse as part of the balancing exercise: at 96.

[page 474] A precise assessment of the debts is not usually necessary. If the liability can be estimated generally and it is appropriate to take it into account, the court will do so. The court must be satisfied, however, of the veracity of the debt and the fact that repayment will be demanded.

Interim orders in respect of legal fees 8.47 At times the parties to proceedings require interim orders to assist them in paying their legal fees to continue with the running of their matter. The case following relates to huge sums of money both in

the pool of property and the legal fees incurred for at least 40 appearances seeking interim orders before the Family Court.

In Strahan and Strahan (Interim Property Orders) (2009) 42 Fam LR 203; [2009] FamCAFC 166 the Full Court of the Family Court (Boland, Thackray and O’Ryan JJ) examined the steps to be taken by a trial judge when exercising discretion to allow an interim property settlement pursuant to s 79 or s 80(1)(h) of the FLA. This was an appeal from interim orders of Strickland J. Ms Strahan sought an interim property settlement of $5 million to defray the likely ongoing legal costs of further proceedings before the court. Strickland J ordered that the wife be paid $1 million as an interim property settlement. The total property pool was disputed by the parties. The husband asserted that there were total assets of $80 million. The wife asserted total assets, which were undisclosed by the husband, were in the realms of hundreds of millions of dollars. Strickland J found that the wife had spent approximately $10.5 million in legal fees and other expenses since the proceedings first commenced. In relation to those fees, the Full Court said (at [14]), referring to the judgment of Strickland J: … Strickland J at [37] said that since proceedings commenced in early 2005, the wife had spent approximately $10.5 million in legal costs, not allowing for $883,568.00 that she paid her previous solicitors and which is the subject of a dispute before the Supreme Court. He said that at least half of the amount of $10.5 million had been spent ‘primarily in attempting to establish that the husband [had] not disclosed all of his assets and that he [had] not discovered all relevant documents’. The wife appealed on the grounds that Strickland J had

inappropriately applied a legal test and made findings as to whether there were ‘compelling circumstances’ justifying the making of the order (at [14]). The wife claimed that the sum of $5 million could and should have been paid. The Full Court allowed the appeal. Boland and O’Ryan JJ determined that both ss 79 and 80(1)(h) of the FLA are sources of power to make an interim property order. They stated that it is also possible to make a maintenance order pursuant to s 72 or s 74 of the FLA. While determining that there is only one exercise of power pursuant to s 79 of the FLA (at [81]), Boland and O’Ryan JJ determined that there may be a succession of orders made in proceedings until there is no property left which could be subject to orders by way of alteration of interests in property (at [113]). [page 475] Boland and O’Ryan JJ said that there is a two-step process to determining whether to make an interim property settlement. The first step is for a judicial officer to determine whether to exercise the power before a final hearing. The second step is for a judicial officer to actually exercise that power (at [118]). Boland and O’Ryan JJ concluded that there was no requirement to establish that there were compelling circumstances justifying the making of the order (at [63]). Their Honours considered that all that was required was an assessment of whether it was appropriate in the overall interests of justice to exercise the power pursuant to s 79 or s 80(1)(h) of the FLA. Further, their Honours also considered that it is necessary to consider the fact that the usual order pursuant to s 79 of the FLA is a ‘once and for all’ order made after a final hearing. Boland and O’Ryan JJ stated that any interim property order must be capable of variation or reversal prior to final orders being made, without a

party having to resort to an application pursuant to s 79A or an appeal (at [136]). In a separate judgment, Thackray J allowed the appeal. His Honour emphasised that there is no obligation on the court to make an interim order; rather the court may do so if it considers that it should in the exercise of its discretion (at [223]). Thackray J stated that it was necessary for the court to have regard to the policy consideration that it is generally in the interest of the parties and the court for there to be only one exercise of the power under s 79 (at [226]). Boland, O’Ryan and Thackray JJ re-exercised the discretion of the trial judge and ordered the husband to pay $5 million to the wife.

Interim orders with respect to an early division of assets 8.48 In the following matter the court, applying Strahan, found no difficulty in making an interim property order in circumstances where the husband had control of a business and the pool of property was sufficiently large to allow an interim payment to the wife.

In Gordons and Hasse [2010] FamCA 1162 Dawe J applied Strahan and Strahan (Interim Property Orders) (2009) 42 Fam LR 203; [2009] FamCAFC 166 in granting the wife’s application for an interim order that she be paid $250,000 from the proceeds of sale of the former matrimonial home, saying (at [10]–[11]): One significant factor in the husband’s responding

documents is that in his response to the final orders, he seeks a settlement on the basis that he retains his business and that each party retain 50 per cent of the net proceeds of sale of the former matrimonial home, the motor vehicle currently in their own name or possession, and their own superannuation and other assets in their own name or possession. Therefore the husband should concede that payment of the sum of $250,000 to the wife from the proceeds of sale will not, in any way, exceed the amount which he is proposing be paid to her by way of final settlement as the parties seem to indicate in their documents, that the net proceeds of sale of the former matrimonial home will be in excess of one million dollars. Therefore the sum of $250,000 is substantially less [page 476] than the amount the husband is proposing that the wife receive by way of final property settlement. Dawe J added this (at [15]): Whilst I accept that there are queries concerning the wife’s capacity to earn a greater amount and queries concerning her expenditure, it is significant that the former matrimonial home has been sold and the husband continues to have the benefit of the income from the business which is totally owned by him and under his control. I am satisfied that the order, as sought by the wife by way of partial property settlement or interim settlement, is just and equitable. His Honour rejected the husband’s application made orally and ‘not necessarily supported by the affidavit material filed by [him]’ for the payment of the same amount to him, noting that ‘[t]he

husband retains the business and therefore his financial circumstances are not comparable to the wife’s financial circumstances’ (at [16]).

Assessment of contributions 8.49 The assessment of the parties’ contributions is an important stage in the exercise of discretion to alter the interests of the parties in their property. The contributions which the Family Court must take into account are financial contributions to the acquisition, conservation and improvement of property, non-financial contributions to property and contributions to the welfare of the family. In determining the contributions made by each of the parties, the court will examine the factors of s 79(4) of the FLA. Before discussing the specific types of contributions mentioned in s 79(4), it may be useful to discuss some general issues relevant to contributions. While s 79(4) lists a large number of items which the court is required to consider, the decisions do not always identify precisely which paragraphs of s 79(4) apply to particular contributions. The lack of precision in the judgments is, however, neither surprising nor fatal to the correctness of a decision, since there is a considerable overlap between the various factors under s 79(4). The mandatory incorporation of the list of matters set out in s 75(2) further hinders a precise analysis of the scope of each of the paragraphs of s 79(4). The judgments in a number of cases have made it plain that the assessment of financial contributions is not a meticulous mathematical exercise. In considering contributions, the court is primarily

concerned with both direct and indirect contributions of a financial and non-financial nature towards the acquisition, improvement and conservation of property. The court is also concerned about contributions that both parties make to the welfare of the family including contributions made by a party as a homemaker and parent. The concept of a direct contribution is a contribution made by that party themselves. An indirect contribution is a contribution made by a party as a result of an action by someone on behalf of that party or by that party doing something in the marriage that indirectly could be seen as a contribution to the acquisition [page 477] of assets, etc, in another sphere. For example, a spouse who gives up a working career to care for the three children in a marriage can be said to have indirectly contributed to the financial build-up of assets because looking after the children frees up the other party to then earn money and contribute towards the assets. A relative of a spouse gifting moneys or providing labour or other non-financial contributions can also be viewed as an indirect contribution by that spouse. Contributions by a spouse to the other spouse’s career such as looking after the children and working part-time to enable the other spouse to do extra studies can also be seen as both a non-financial and also an indirect contribution.

In Marriage of Hayne (1977) 3 Fam LN N25 at N26; FLC ¶90-265, Pawley J stated: In matters such as this, one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable. In the matter of Simon and Hassett [2014] FCCA 48, Brown J considered it ‘just and equitable’ to decline to make an order under s 79 because of the lack of contributions made by the husband. The property consisted of one home registered in the name of the wife, the wife’s superannuation of $52,978 and the husband’s superannuation of $3,068. The house had been purchased for $430,000. The wife had paid $50,000 as a deposit and obtained a mortgage for the balance. The husband contended that the property was purchased as a family home while the wife argued it had always been purchased as an investment property and would be tenanted. The wife claimed that she had used her savings of $50,000 to purchase the investment property so that the husband would stop ‘pestering’ her to send the money to his parents in India (at [37]). The husband argued his contributions were by way of housekeeping and cooking. The wife had earlier given evidence that the husband had expected her to not only work full-time but also to act as a traditional Indian wife by cooking and cleaning while the husband was unemployed and preoccupied with watching pornographic movies on television and his computer. With reference to the justice and equity of the decision, Brown J stated (at [165]): In all these circumstances, particularly the absence of any relevant contribution attributable to the husband in respect of the accumulation by the wife of her future superannuation entitlements, I have come to the conclusion that it would not be just and equitable to

make any order altering the parties’ existing interests in the relevant property in the case. It cannot be said with any certainty that the outcome in Simon and Hassett would have been different before the High Court decision in Stanford and Stanford [2012] HCA 52. Equally, the assertion in Stanford that a s 79 settlement is not the automatic right of a party to a marriage may have an impact where the evidence establishes that one party has ‘failed to pull their weight’ in the relationship.

Assessing contributions — global or asset-by-asset approach 8.50 There are two possible judicial approaches to the assessment of the entitlement of parties to property under the FLA: the global approach and the asset-by-asset approach. The global approach involves division of the parties’ assets on the basis [page 478] of an overall proportion on a global view of the total assets. The asset-by-asset approach involves the determination of the parties’ interest in individual items of property. Under the asset-by-asset approach, the court should determine the various contributions that each party has made to each individual item of property to the extent that is both possible and reasonable in the circumstances. Under the global approach, the court should not attempt any precise asset-by-

asset assessment of the parties’ contributions but should determine simply the overall contribution that each party has made to the totality of their past and present property. The High Court has held that either approach is legitimate and that there is no binding principle of law controlling the exercise of discretion in the division of property. The question came before the High Court in 1986, in what has become the leading case in this area.

In Marriage of Norbis (1986) 10 Fam LR 819; FLC ¶91-712, the parties had been married for nearly 30 years and had accumulated a number of properties during that time. In assessing the entitlement of the parties, the trial judge adopted the approach of isolating individual items of property and assessing the proportions in which the parties should have an interest in each item. In contrast, Mason and Deane JJ in the High Court said (at 823): Section 79(1) of the Act provides that the court may make such order as it thinks fit altering the interests of the parties to a marriage in the property of the parties or either of them. In so providing, the Act confers a very wide discretion on the court. But that discretion is not unlimited. Its exercise is conditioned by the requirement that it is just and equitable to make the order (s 79(2)), and that the court take into account the matters specified in s 79(4) and the general principles embodied in ss 43 and 81, so far as they are applicable. However, none of these provisions answers in any direct way the question whether it is more appropriate for the court in making such an order to view the assets of the parties globally or to assess entitlements by reference to specific assets.

Their Honours said further (at 824): Although it is natural to assess financial contributions under s 79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties’ property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, that is, on a global or, alternatively, on an ‘asset-by-asset’ basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient.

8.51 The ‘asset-by-asset’ approach is frequently used where the contribution by one party greatly outweighs the degree of contribution by the other to an asset or assets and no adjustment is made by the court in consideration of the future needs element of s 79. As a general rule, the asset-byasset approach tends to favour an applicant who can show specific contributions which are greater than those of the other spouse to particular assets. Nevertheless, whether the asset-by-asset approach is used depends very much on the circumstances of the case before the court. [page 479]

In Marriage of Zyk (1995) 19 Fam LR 797 at 802; FLC ¶92-644, Nicholson CJ, Fogarty and Baker JJ stated: The asset by asset approach enables the court to assess separately the parties’ contributions to particular assets or groups of assets. It is the less preferred approach largely because it can at times be an artificial exercise and also because it can create difficulties in the proper evaluation of paras (b) and (c) contributions. But there are a number of circumstances when it may be appropriate to do so, for example an inheritance received post separation, or where the financial relationship of the parties during the marriage was such that they treated some property as exclusively the property of one party to which the other party made no, at least no para (a), contributions to it. It may be convenient in cases like that to treat that property separately rather than assess the overall contributions of the parties to the totality of their property. However, the trial judge has a discretion as to which course to adopt and does so having regard to what appears more suitable to the circumstances of the particular case.

The asset-by-asset approach has also been applied where one partner’s business acumen and inheritance was the substantial reason why the business existed and this outweighed the other partner’s indirect contributions: Marriage of Lenehan (1987) 11 Fam LR 615; FLC ¶91-814. In practical terms, it may be argued that the ultimate decision reached contains elements of the more precise assetby-asset approach and the broader global approach.

In Marriage of Gill (1984) 9 Fam LR 969 at 981; FLC ¶91-582 Nygh J said: [Both] approaches are legitimate … provided that those who take the global approach heed the warning that the origin and nature of the different assets ought to be considered and that those who favour the more precise approach do not … add up their individual items without standing back at the end to review the overall result in the light of the needs of the parties.

In the matter below the husband appealed against a decision of McGuire FM that the wife, pursuant to s 79 of the FLA, retain the entirety of the pool of the property of the marriage. The Full Court allowed the appeal and discussed whether, on the facts, McGuire FM should have acknowledged some contribution on the part of the husband, at least on an asset-by-asset basis.

In Polonius and York [2010] FamCAFC 228 the parties, a secretary and a car salesman, were together for 22 years until 1997 when the wife initiated a separation under the one roof (at [28]–[29]). They had two children. At separation their assets (value $260,000) were exceeded by the $300,000 owed to creditors by the husband, who became bankrupt in 1998. The separation lasted for 10 years until 2007 when the wife left the home. [page 480]

Both parties worked, the husband earning more than the wife, but by separation the wife’s financial contributions were greater by reason of an advance of $58,000 from her mother (not recovered from the husband’s bankruptcy) and payments by the wife of $96,000 to the husband’s trustee in bankruptcy and $16,000 to discharge the mortgage on their home (at [82]). It was found that since separation the wife’s contributions (her borrowings, greater payments towards the running of the household and her post-separation payment of school fees) were far superior to that of the husband, who had also enjoyed free sole residence in the home since 2007. By the time of the hearing, the wife had acquired net assets valued at $824,000 and superannuation of $49,000 mostly accrued by her (at [60]). The husband appealed against the decision of McGuire FM to award the entire pool to the wife. The Full Court (Boland, Thackray and O’Ryan JJ) held that ‘it could not be said that the husband had no contribution based entitlement’ (at [82]). The Full Court observed (at [90]–[91]) that because it had not been held by the federal magistrate that the husband’s bankruptcy amounted to waste of family assets due to his having ‘acted recklessly, negligently or wantonly’ (Marriage of Kowaliw (1981) FLC ¶91-092 at 76,644): … it follows that the parties had the benefit of amounts that comprised the secured and unsecured debts of the husband of perhaps $241,626.00 …: see Boege and Boege [2001] FamCA 1167. We also observe that in relation to what Baker J said in Kowaliw [(1981) FLC ¶91-092] with respect to the sharing by parties of financial losses [at [90]], in Browne v Green (1999) FLC ¶92-873 the Full Court (Lindenmayer, Finn and Holden JJ) observed at 86,364: [P]arties generally expect to share the economic profits of a marriage, which, in our view, requires that there should be good and substantial reasons for departing from the principle that where there are economic losses incurred in a marriage, those losses

should be shared, absent any negligence, recklessness or deliberate dissipation of assets by one party. No such good and substantial reasons are apparent to us in this case.

The Full Court then proceeded (at [92]) to consider ‘what happened subsequent to separation in mid-1997’, agreeing with Finn J’s statement in Zalewski and Zalewski (2005) FLC ¶93-241 at 79,978: It is my impression that there are currently coming before the court a significant number of cases in which the period between the parties’ separation and the hearing of their property settlement proceedings is substantial. The delay seems often to arise, at least in part, because the parties have initially reached some form of informal (or even formal) settlement from which one party later resiles (often for good reason). In these long separation periods, the parties will usually have built up substantial new assets or incurred substantial liabilities. In an endeavour to satisfy the parties that any orders which are eventually made by the court in these somewhat complicated cases are just and equitable, it can, in my view, be very useful for judges to assess contributions to property on an asset by asset basis. The Full Court reviewed the parties’ contributions and concluded (at [104]):

post-separation

In summary, the federal magistrate found that the husband made no contributions subsequent to the separation of the parties in mid-1997. This finding is incorrect because there was evidence of contributions by the husband. However, it was open [page 481] to the federal magistrate to find that subsequent to the

separation, the wife made significantly greater contributions than the husband which included the inheritances she received of approximately $291,366.00. If his Honour had adopted the approach suggested by Finn J in Zalewski then in respect of the category of assets acquired after separation it would have been within his discretion to find that the wife had a significantly greater contribution based entitlement in respect of these assets. The Full Court stated (at [93]): We agree with these observations. In a case such as this, where there was a marriage of long duration and a lengthy period of separation before the hearing of applications for property settlement, during which time significant assets were accumulated by one or both parties, it should indicate that in such circumstances it may be more useful to undertake an assessment of contributions on an asset by asset, or, category of asset by category of asset basis. The appeal was allowed and the matter returned for re-hearing. See also Liakos and Zervos [2011] FamCA 547 at [77].

In the following matter the Full Court of the Family Court allowed an appeal by the husband against an order of Simpson FM that the contributions of the husband and wife were equal. The Full Court also discussed the grounds on which a higher court should set aside a judgment of a lower court.

In Galliano and Galliano [2011] FamCAFC 149 a young couple with no children had assets of $496,000 after a seven-year

relationship. The husband’s financial contributions, being his workers compensation payments as an injured builder’s labourer, exceeded the wife’s income as a retail assistant and, together with a lump sum compensation payout, represented half of the asset pool. At first instance, Simpson FM assessed contributions as equal (at [42]–[46]), noting that ‘the wife had always worked during the … relationship, while the husband had not, although he had received workers’ compensation payments’ and a ‘substantial payment finalising his claim’, also finding that he had not made full disclosure as to how he used the money he received. The wife (who alleged the husband used illicit drugs and did not attempt to find work) was found to have made payments towards the parties’ loan and significant non-financial contributions. Strickland J rejected the wife’s submission that the husband had made ‘negative contributions’ (saying (at [77]) that ‘the court has said on many occasions that it is inappropriate to describe contributions in that way’), adding (at [78]): … in the circumstances of this case it is a nonsense to suggest that the husband should be penalised, or the wife rewarded because the husband did not seek employment. He received worker’s compensation payments and that was his contribution to the household finances and that is all that is required to be taken into account. Strickland J referred to the difficulty in working out precisely on what basis Simpson J assessed the individual contribution of the husband and wife saying (at [80]): In these circumstances the difficulty with the Federal Magistrate’s assessment and comparison of the respective contributions of the parties remains. Although,

[page 482] it is not appropriate to apply a strict mathematical approach to the assessment of contributions, it is apparent that the Federal Magistrate has not adequately taken into account the financial contribution of the husband. The plain facts of the matter are that of the net asset pool available for distribution the husband directly contributed approximately half. Strickland J continued (at [81]–[82]): Thus, in the words of the High Court in House v The King (1936) 55 CLR 499 at 504: 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Similarly, as Lord Justice Asquith said in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345: It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.

Strickland J allowed the husband’s appeal against the assessment of contributions as equal, saying (at [83]): Here, in my view, the finding of equal contribution clearly ‘exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong’

[Lord Justice Asquith said in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345]. Upon a re-exercise of discretion Strickland J examined the parties’ contributions (including those made by the wife postseparation which were found to outweigh the husband’s), holding that ‘the most significant factor in that assessment is the husband’s financial contributions during cohabitation’ (at [94]). The husband’s contributions were reassessed at 60 per cent.

In Smith and Fields [2012] FamCA 510 Murphy J discussed the manner in which the distribution of a very large pool of property amounting to $39,816,258 should be assessed for settlement: whether it should be a ‘two pool’ split or a ‘global’ one. His Honour said (at [35]–[36]): As the High Court held in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 523 there is much to be said for adopting, generally, a global approach to the assessment of the parties’ contributions. Yet, as that same case makes clear, a discretion remains. [page 483] Here, a case can be made that the nature and extent of the parties’ contributions and the justice and equity of their ultimate entitlements are better assessed if a ‘two pools approach’ is adopted; the nature, form and characteristics of the business on the one hand, and the remaining assets and superannuation interests on the other, and the nature and extent of the contributions

made by each party to each pool, might, it can be argued, make that approach more appropriate. In giving clarity for his decision to take the ‘global’ approach to settlement, his Honour was mindful that the parties had been married for 29 years. Murphy J stated (at [37]–[38]): Ultimately, however, I consider a global approach preferable. This is a long marriage and, as will be seen, the various contributions made by each of the parties over that time see the parties’ wealth vested essentially in two major assets and those two major assets have an interconnection by reason of the construction business being responsible for the construction of the former matrimonial home and materials, labour and funds being directed from one to the other. I consider it artificial to distinguish between different groups of assets or superannuation interests or, for example, between the business on the one hand and the other property and superannuation interests on the other. In recognising the difficulty of dividing property of such proportions and enmeshing of titles, Murphy J referred the parties to legal and financial advisers to assist them in giving effect to the orders (at [39]).

Property divided into two pools 8.52 As so often with ‘big money’ matters before the court, the facts of Calder and Calder [2016] FamCAFC 36 heard

before Bryant CJ, Thackray and Macmillan JJ are complicated. The parties married in 1975 and separated for the final time in 2009. At the time of trial, the husband was 67 years of age and the wife was 61. Neither had repartnered, and their adult children were independent. The parties engaged in farming, initially overseas, and then in Australia. By the time of trial, their assets were worth more than $13 million. The property pool was made up of multiple titles including farming land held in the names of various companies, plant, equipment and sheep of varying pedigree, age, condition and therefore some very valuable while other members of the flock less so. The importance of the sheep to both parties lay in the superior wool produced by years of careful breeding. The wife complained that the husband had removed all the good breeding stock from the flock, therefore leaving her unable to rebuild her stock. This appeal by the husband and cross-appeal by the wife came before the Full Court by way of a challenge to a decision at first instance of Berman J in Calder and Calder (No 2) [2014] FamCA 106 in which his Honour made very detailed orders for a distribution of property 55/45 in favour of the husband with an equal division of partnership plant, livestock and equipment. [page 484] Both husband and wife were dissatisfied with the findings of Berman J. The husband appealed the findings concerning the value of livestock asserting that his Honour accepted a

value which was too high. The husband succeeded in achieving a reduction which on appeal was reduced by $124,189.Therefore the wife had this amount reduced from her portion of property. The wife cross appealed on several grounds but it is the ground in relation to the ‘two-pool’ division which we will consider. One of the wife’s complaints was ‘[t]he decision of the trial judge, made without invitation, to divide the assets into two pools, and his failure to explain why he divided the smaller pool in the proportions that he did’ (at [5]). The Full Court referred to the wife’s complaint as ‘the two pools issue’ and said (at [96]) that she asserted that the trial judge had erred: … in determining to make an assessment under s 79 of the Family Law Act (the Act) by reference to two separate pools of assets, one being the livestock and plant and equipment of the partnership and the other the remaining assets of the parties, without first having given either party any or any reasonable opportunity to be heard as to the adoption of such an approach or as to whether or not it was appropriate to make different assessments with respect to those pools or as to an appropriate assessment for each pool; in failing to provide any or any adequate reason as to: –

explain why he made his s 79 assessment by reference to two pools; or

–

explain why it was that he divided the partnership livestock and plant and equipment in the proportion that he did; or

–

demonstrate that in making that determination he had regard to any of the factors under s 79(4) of the Act or to s 79(2) of the Act.

The Full Court found that Berman J was not in error in dealing with the assets of the parties in two separate pools, stating (at [102]): We are not convinced that it is obligatory for a trial judge to advise the parties that he or she intends to adopt a two-pool approach where both parties have presented a global case directed to the entire pool of assets. In some respects, the approach of notionally dividing the assets into more than one pool is a matter of convenience for the author of the judgment.

And further (in relation to the wife’s appeal): It was the wife’s case that all of the assets should be divided equally, hence it is not open to her to complain about the trial judge having given her what she wanted, albeit in relation to only the smaller pool. For the same reason, it is not open to the wife to complain about the absence of reasons for the smaller pool being divided in the proportions she sought: at [103].

The Full Court followed the same path as the primary judge. In a re-exercise of the discretion in its power, the Full Court divided the property in the same proportions as Berman J at first instance. [page 485]

A section by section approach Section 79(4)(a) — financial contributions 8.53

Section 79(4)(a) of the FLA requires the court to take

into account the financial contribution made directly or indirectly by or on behalf of a party or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them. The term ‘financial contribution’ is not defined in the Act. It is clear, however, that what is characterised as ‘financial’ includes such things as contributions to the purchase price of property, repayments of a mortgage, payment for repairs and renovations: Marriage of McDougall (1976) 1 Fam LR 11,581; FLC ¶90-076. 8.54 Payment of the purchase price of any property is probably the single most significant aspect of its acquisition. So it will always be a relevant inquiry in considering what orders should be made altering property interests to establish which of the parties made the contributions to the original down payment on the purchase of the property. As might be expected, the matrimonial home is the property most commonly examined in this context. Generally speaking, s 79(4)(a) incorporates into family law the basic provision of the general law in relation to property and therefore, as a starting point, direct financial contributions to the acquisition of the property are of crucial importance. Such importance will tend to diminish in relation to the various other factors of relevance under s 79 as the years pass in a marriage of long duration. Accordingly, direct financial contribution to the acquisition of the property will be of the greatest importance in relation to short marriages. Not surprisingly, there is considerable case law as to the significance of the initial contributions to the property of the parties and much discussion as to the impact of time in these cases. A short marriage by its very nature suggests less mingling of assets,

and therefore the greater benefit flowing to the party making the initial direct financial contribution.

In Marriage of Quinn (1979) FLC ¶90-677, the Full Court dismissed the husband’s appeal from an order of the trial judge vesting the jointly owned property in his wife in return for a payment to him of $3,500. The parties had been married for little more than three years and cohabited for less than two years. When the matrimonial home was purchased, it had cost $25,000, of which $15,000 had been provided by the wife, who had substantial assets. The agreed value of the property at the time of the original hearing was $50,000. The court found that here, as the marriage was of short duration, the matrimonial home could not be regarded as an asset accumulated by the efforts of the parties during the marriage. Instead, it was found as largely still an asset brought into the marriage by the wife.

In Petruski and Balewa [2013] FamCAFC 15 the Full Court (Bryant CJ, Strickland and Moncrieff JJ) dismissed the wife’s appeal against a property order made by Jordan AJ in the Family Court of Western Australia requiring her to transfer to the [page 486] husband her interest in the K property and pay him $54,000 (and costs). The wife’s central complaint was the failure of the trial judge to have regard to her superior financial contributions. The wife’s case was that she should retain the K property and pay the husband a sum equal to 7.5 per cent of the net asset pool, less the value of assets in his possession.

The relationship between the parties was of short duration. The 54-year-old Australian wife met the 36-year-old African husband on the internet in 2000. The husband moved to Australia in 2003 where the parties married after a brief cohabitation. They separated in 2008. The wife was a property developer director and shareholder of the R Group, her interest in which was held by the Petruski Family Trust created by her. The Full Court (at [25]) upheld the finding in the lower court by echoing the words of the trial judge: The trial judge found both parties had made ‘significant and meaningful direct and indirect contributions to the advancement of their relationship and to the acquisition, maintenance and improvement of their properties’, and that both parties had ‘worked to their full capacity and potential in their variety of endeavours during the entirety of the marriage’. His Honour rejected the proposition that the wife should be entitled to any extra loading simply because of her higher earnings during the marriage, and instead found there was ‘a merging of effort, finance, risk and support during the entirety of the relationship’ and that the parties’ contributions in terms of effort during the marriage were of ‘equal value’. The trial judge also noted the significant increase in value of the parties’ properties was through ‘no particular ongoing effort of either of the parties’, and that since separation the wife had responsibility for, and the sole use and benefit of, the bulk of the property interests. The trial judge assessed contributions as 77.5/22.5 per cent in favour of the wife, which was adjusted in favour of the husband by 2.5 per cent under s 75(2) for ‘disparity in property, income and earning capacity, as well as the husband’s longer life expectancy’ (at [27]). The Full Court continued (at [28]):

His Honour then calculated that a 75 per cent/25 per cent division of the net asset pool in favour of the wife would ‘require the husband to receive property of the order of $598,000 and the wife to receive property of the order of $1,794,000’. On the basis then of the husband retaining his savings and his superannuation (totalling $50,000), and taking a transfer of the wife’s interest in the K property, the wife would be required to pay the husband a further sum of $61,000. In dismissing all of the wife’s grounds of appeal the Full Court said (at [49]): The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship (Dickons and Dickons [2012] FamCAFC 154) [and see Lovine and Connor [2012] FamCAFC168].

8.55 Equally, a marriage of long duration carries with it implications of mingling of assets and contributions financial and otherwise. In the cases below, we will discuss the approach of the Family Court to marriages of long duration and the initial contribution of capital by the parties. [page 487]

In Marriage of Crawford (1979) 5 Fam LR 106; FLC ¶90-647, the Full Court stated that the longer the period of cohabitation, the less weight needs to be given to the initial contribution of capital.

Its significance gradually diminishes with the passing of the years. In relation to the initial contribution, the court said (at 111): The rate of diminution and, for that matter, the significance of the initial contribution are matters which will vary according to the circumstances of each case.

In Marriage of Lee Steere (1985) 10 Fam LR 431; FLC ¶91-626, the Full Court was not prepared to treat the decision in Crawford as authority but it did clarify the decision by stating that the initial contributions were not eroded merely by the passage of time, but by the offsetting contributions of the other spouse during the course of the marriage. Implicit in that statement is the suggestion that time of itself means very little. Rather, it is the whole gamut of contribution to the marriage that needs to be considered. This is not, however, to suggest that there is any mathematical or scientific formula from which help can be obtained.

In Marriage of Zyk (1995) 19 Fam LR 797 at 810–11; FLC ¶92644 at 82,517, the Full Court (Nicholson CJ, Fogarty and Baker JJ) alluded to this lack of mathematical precision: The problem of reflecting significantly disproportionate contributions at the beginning of the marriage in orders directed to division of their property at the end of the marriage remains an acute one. It is ordinarily just and equitable that that differential be treated as significant. Cases such as Crawford [above], Money and Bremner [below] emphasise that the disparity may be eroded over time by the contributions of the parties during the course of the marriage. How and to what extent that exercise is

to be done is a difficult problem and one which is not susceptible of precise analysis. See also Marriage of Bremner (1994) 18 Fam LR 407; (1995) FLC ¶92-560 and Marriage of Money (1994) 17 Fam LR 814; FLC ¶92-485.

In Marriage of Aleksovski (1996) 20 Fam LR 894; FLC ¶92-705, Baker and Rowlands JJ, despite the decision in Marriage of Lee Steere, appeared to be willing to accept that the mere passage of time, at least in some circumstances, reduces the significance of initial or early contributions. Their Honours, however, intimated that each case must be considered on its particular facts and the reality of the situation pertaining to those facts. Baker and Rowlands JJ appeared mindful of the reality of the mingling of marital assets so that the initial identity may be lost. Their Honours stated (at 903): … less weight may be given to a contribution made by one of the parties to a marriage early in the cohabitation period of a long marriage, particularly in circumstances where the contribution has gone into the parties’ assets or been used up in the payment of family expenses. See also Marriage of Pierce (1998) 24 Fam LR 377; FLC ¶92844.

[page 488] Contribution by payment of the mortgage 8.56

Direct contributions to the purchase of or mortgage

payments for property are a financial contribution to the acquisition of that property: Marriage of Little (1990) 14 Fam LR 118 at 122 per Ellis, Fogarty and Joske JJ; Marriage of Black and Kellner (1992) 15 Fam LR 343 at 345; FLC ¶92-287 per Nicholson CJ. Direct financial contribution to conservation of property 8.57 An act of conservation protects the property from loss, injury or deterioration. Typical examples would be payment of the cost of ordinary repairs and maintenance to a matrimonial home, such as roofing, guttering, plumbing, electrical repairs, garden maintenance and the like. Direct financial contributions to improvement of property 8.58 An act of improvement results in some addition or change to the property which increases its value or utility. For example, building a family room at the back of the matrimonial home, constructing a garage or adding a second storey are obvious improvements. There is, however, something of a crossover between conservation and improvement. Repainting a house, for example, may be a matter of conservation or of improvement. Perhaps it can be argued that an act of conservation protects from loss, injury or deterioration. An act of improvement results in some additional change to the property which increases its value or its utility. The importance of honest disclosure and, it should be said, the keeping of receipts, is illustrated in the judgment following.

In Elder and Elder [2008] FamCA 850 Mullane J was scathing of

the assertions by the husband that he had spent $75,000 on improvements to the property of the marriage. In examining the evidence before the court his Honour found the likely amount expended on improvements to the property to be considerably less than that claimed by the husband. His Honour said (at [129]): The husband claimed in cross-examination that he spent $75,000 for the extensions. But there were no receipts, other documents, or records produced to corroborate that. In addition, it appeared he did not have the funds. The evidence is that the purchase price of the property three years earlier was $93,000. In addition they paid stamp duty, lawyer’s fees and other expenses of the purchase. They borrowed $118,000 on mortgage loan. It appears then that there was probably only about $22,000 or $23,000 available for expenditure on improvements. It seems that was the likely amount that was spent before the cohabitation, as the husband had no savings at the time cohabitation commenced. It appears that the figure of $75,000 was mere fiction.

Overcapitalisation of property 8.59 Overcapitalisation may be defined as the investment of more capital into an asset than can be justified in terms of the sum of money likely to be realised on sale. Sometimes contributions involve overcapitalisation of property the subject matter of an application under s 79 of the FLA. [page 489]

In Marriage of Vrbetic (1987) FLC ¶91-832, the parties were married in April 1980. At the time of the marriage, the husband owned a block of land which he had bought for about $14,000. He owed $3,400 at the time of the marriage and this sum was paid off by the wife. At the time of the hearing, the land was worth $40,000. The wife, at the time of the marriage, owned another property which she sold for $58,000. Nearly all the funds arising from that sale went towards the erection of a home on the husband’s land. The parties separated in October 1982. The gross value of the home was $125,000 and the net value was $85,000, which was less than the total value of the respective contributions of the parties. The Full Court held that as both parties had been responsible for the overcapitalisation of their property, they should both share the resulting loss, with the wife bearing a smaller loss than the husband because of her greater contribution to the property.

The outcome in Marriage of Wilmore (1988) 12 Fam LR 692; FLC ¶91-975 was different. In that case, the court found that the wife had invested the proceeds of the sale of a property ‘prudently’ whereas her husband had ‘overcapitalised’. The parties separated in 1976, their home was sold and the proceeds divided between them. They purchased another block of land in joint names, on which the wife built a home for her use, and the husband a log cabin, which could be used as a studio but was not approved as a separate residence. Three valuers agreed that there had been overcapitalisation by the husband in building the cabin. The husband argued that all the moneys expended by both parties could be seen to have come from the property which they accumulated while married; whether expended wisely or unwisely, the husband’s disposal of his share of the moneys could be seen to have been directed in one way or another into the family.

Elliott J held (at 695) that the wife paid for a house which was saleable and valuable; the husband put his money into a cabin which could not be sold for a dwelling. To take a view of the parties’ contributions ignoring this significant fact would be to deny the wife proper recognition for her prudent use of her share of the proceeds of the former matrimonial home.

8.60 It can be seen from these two cases that where both spouses are responsible for the overcapitalisation of property, the court regards it as proper that both should bear the loss. Where only one spouse is responsible, it is considered proper that this party should normally bear the entire net loss. Contributions made prior to the marriage 8.61 The term ‘parties of the marriage’ is used throughout s 79 of the FLA as a method of identification of the relevant parties for whom a judgment is being made. The terminology does not prevent an assessment of any contributions made by either party prior to the marriage, or after separation. [page 490]

The current law with respect to premarital contributions is stated in the Full Court’s decision in Marriage of Kowalski (1992) 16 Fam LR 235 at 243; (1993) FLC ¶92-342 at 79,630: A more logical and consistent approach is one which is based on the proposition that once a marriage has been celebrated between the parties, the entire relationship between the parties whether arising out of contributions

before, during or after the formal tie of marriage was entered into or dissolved, falls within the ambit of Pt VIII of the Family Law Act 1975. This principle explains why contributions made between cohabitants who later marry are judged according to the criteria set out in the Family Law Act 1975 and not according to those set out in the Property Law Act 1958 (Vic) or the De Facto Relationships Act 1984 (NSW). It is also consistent with the proposition that post separation and post divorce contributions continue to be taken into account. These parties are before the Family Court because they were once married and hence the proceedings can be said to arise out of the marital relationship, even if the property, the subject of such proceedings, does not. This reasoning was subsequently approved by the Full Court in W and W (1997) 21 Fam LR 343; FLC ¶92-723.

Contributions made after separation 8.62 Under s 79(4)(a) and (b) of the FLA, the court may take into account contributions made by spouses to property or to the welfare of the family after the parties have separated: Marriage of Ferraro (1992) 16 Fam LR 1 at 33; (1993) FLC ¶92-335; Marriage of Kowalski (1992) 16 Fam LR 235 at 243; (1993) FLC ¶92-342. In Marriage of Williams (1985) 10 Fam LR 335; FLC ¶91-628, it was held that the wife’s contribution in caring for the children after the husband had left was relevant under s 79(4)(c). Financial contributions by or on behalf of a child 8.63 It is rare to find a case in which a child of the marriage who is not an adult has made any financial contribution, or

in which any contribution has been made on his or her behalf to the acquisition, conservation or improvement of property within a marriage. What may be more common, however, is a case where one of the parents, by reason of tax planning or estate planning or otherwise, has established trusts or other interests for the benefit of the children of the marriage, and has provided the children with an income. It may happen that the income of the child’s trust or interest in a family company is applied towards the acquisition of property. A child may also be left money in the will of a deceased relative. In that way, money which beneficially belongs to a child or children may be applied directly towards the acquisition, conservation or improvement of, or otherwise in relation to, property within a marriage. In these circumstances, it can be safely assumed that the court would try to frame an order so as to protect or recognise whatever was the appropriate interest of the child in proceedings under s 79. This will be the case particularly where a direct or indirect contribution of a financial character made to the property used money which, strictly speaking, was for the benefit of the child. [page 491] Relevance of fault or conduct to contributions under s 79 8.64 The conduct of the parties is not specifically referred to in s 79 of the FLA, and it has been consistently held that the marital behaviour of parties is not of itself relevant to applications under s 79: Marriage of Fisher (1990) 13 Fam LR 806; FLC ¶92-127. Several authorities, however, appear to

distinguish between misconduct in general and certain types of behaviour having a direct connection with financial matters. The existence of violence and other forms of conduct can be relevant to the issue of contributions under s 79. Such conduct, however, will only be relevant in exceptional cases. There may be cases where the violence is of such a nature and magnitude that it can be seen to have had a detrimental effect on one party, so as to have made their contributions more onerous (such as being a homemaker and a parent in an environment of domestic violence) or alternatively such violence or other conduct may have resulted in long-term effects to that party’s health and therefore could be a factor to be considered under s 75(2). In general, however, the manner in which the Family Court deals with issues of violence within a marriage is very unsatisfactory.

In Marriage of Fisher (1990) 13 Fam LR 806 at 808–9; FLC ¶92127, Nygh J said that conduct may be relevant ‘if it has financial consequences, such as financial misbehaviour resulting in waste or suspension of family assets’.

8.65 Until recent times, the court has generally rejected arguments seeking to link notions of misconduct with the assessment of contributions under s 79(4), or with the phrase ‘just and equitable’ in s 79(2), or with what the justice of the case requires to be taken into account under s 75(2)(o): see Marriage of Ferguson (1978) 4 Fam LR 312; FLC ¶90-500, and Marriage of Fisher (1990) 13 Fam LR 806; FLC ¶92-127, which was the leading case until Marriage of Kennon (1997) 22 Fam LR 1; FLC ¶92-757. This is not to say, however, that

the issue of family violence was never discussed in cases prior to Kennon. Whether it was given sufficient attention is quite a different question.

In Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC ¶92652, the parties cohabited for 12 years. They had two children, and another child of the wife’s lived with the parties throughout their relationship. At the hearing of the parties’ applications for property settlement, the trial judge found that the parties’ respective contributions had been equal. In reaching that conclusion, the trial judge considered that the wife’s contributions as homemaker and parent would have been increased during ‘the admittedly short period of time when the husband was violent and aggressive to her’ (at 137). The trial judge adjusted the property at 65 per cent to the wife and 35 per cent to the husband, making an allowance for the s 75(2) factors of 15 per cent in the wife’s favour. The husband appealed. The Full Court dismissed the appeal. Baker J (with whom Fogarty and Hannon JJ agreed) said (at 141): [page 492] Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless, his Honour would, in my opinion, have been entitled to have found that because of the appellant’s conduct, the respondent’s contribution as a homemaker was increased and the appellant’s similar contribution diminished as a consequence, leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly, having regard to the facts of this case.

Given all the contributions which each party made to the marriage and to the family, I am not persuaded that the trial judge erred in his finding that contributions were equal. For reasons given above, I am satisfied that his Honour may have found that contributions favoured the wife because of the incidence of domestic violence on the part of the husband.

8.66 Bearing in mind some of the statements made by the majority in Marriage of Kennon, it is not surprising that the court addressed that somewhat unconvincing reason for largely ignoring the effects of violence within the family, the ‘floodgates’ argument. This argument is that issues of domestic and family violence, which should only be referred to in exceptional cases, could become common allegations in property cases and be used inappropriately as tactical weapons or for personal attacks — returning the court to fault and misconduct in property matters, which proved so debilitating in the past. There is also a risk of substantial additional time and cost. It is essential to bear in mind that these considerations apply to a relatively narrow band of cases; and that it is necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. Conduct, it is argued by judges of the Family Court, that does not have that effect is not relevant; neither is conduct related to the breakdown of the marriage, except in so far as it also had an effect on the parties’ contributions to the marriage. This may very well be a valid approach taken by the Family Court but whether it can ever satisfy victims of violence is another matter entirely.

The majority in Marriage of Kennon (1997) 22 Fam LR 1 at 11; FLC ¶92-757 expressed agreement with the following depressing observations of the trial judge, Chisholm J, in Marriage of Rosati (FCA, 14 February 1997, unreported): [I]t would be unfortunate if practitioners saw In the Marriage of Doherty [(1995) 20 Fam LR 137; (1996) FLC ¶92-652] as an indication that they should routinely include in property proceedings detailed evidence about the parties’ behaviour towards each other during the marriage. There are three main reasons for this. First, in practice it will often be very difficult for the court to make an overall determination of whether overall one party is more wrong than the other. In many cases, a prolonged investigation of these matters would, in the end, prove fruitless, and would add immeasurably to the financial and emotional costs of the proceedings. Second, these matters may sometimes be of marginal relevance. For example, if one party has assaulted and injured the other party, the injury and its consequences will [page 493] be relevant, quite apart from conduct, if as a result the injured party has medical or other costs, or is in need of assistance, or is unable to obtain employment. Again, if the victim of the assault has a right of action for damages under general law, in financial proceedings a court may perhaps find that the justice of the case does not require the matter to be dealt with in the Family Court proceedings since the right of action will remain

available after proceedings …

completion

of

the

Family

Law

Third, and most obviously, this sort of material will normally lead to extended trials of a particularly bitter kind, and will take a heavy toll on the parties in both financial and emotional terms. In some cases, this may be disproportionate to its impact on the end result. It is perhaps significant and equally depressing that in the appeal to the Full Court (Marriage of Rosati (1998) 23 Fam LR 288) the only reference to domestic violence occurred when the majority quoted Chisholm J, stating (at 288): In reaching his decision, his Honour considered the incidence of domestic violence raised by the wife and the extent to which such conduct should be taken into account in the context of property proceedings. His Honour concluded that there was no satisfactory evidence that the violence played a significant part in relation to the wife’s contribution and, to the extent that the incidents identified should be taken into account in favour of the wife, their significance was minimal.

8.67 Without wishing to show disrespect to the Family Court, it is very difficult to remain detached in the face of a finding by the Family Court that family violence can ever be minimal in its effect and significance. This is particularly so in a time when society generally is seeking to come to terms with, and acknowledge, the amount of violence perpetrated within the family.

In Palmer and Palmer [2010] FMCAfam 999 Brewster FM

reviewed the question as to whether ‘the Kennon principle’ (at [71]) is good law, saying (at [87]): It seems to me that one could only justify a Kennon adjustment if the fact that the husband’s violent conduct having made the wife’s non financial contributions more onerous her contributions are to be treated as having some special feature about them. In discussing the evidence of the wife in relation to the violence in the marriage and whether that violence made her contribution more onerous, his Honour said (at [72]): As I have indicated the wife maintains that the husband was violent towards her during the course of the marriage. She says that the husband’s conduct towards her was not confined to physical attacks. In para 43 of her affidavit filed 15 March 2010 she says as follows: I say that I have endured daily verbal assault from [Mr Palmer]. [Mr Palmer] would often complain about how the vertical blinds were turned in our house. Almost every day he would come home and re-arrange them in a way he felt they should be. He would then say to me ‘how stupid are you, you can’t even get the blinds right’. It was rare that a day would pass during our marriage that [Mr Palmer] would not call me an offensive name such as ‘boof-head’, ‘fucking stupid bitch’, ‘dumb’, ‘idiot’, ‘fat cow tick’, ‘pig’ or swear at me, raise

[page 494] his voice in anger at me or say to me ‘you have not achieved what I expected of you’ and/or ‘you failed to follow through’. [Mr Palmer] would often say ‘I wish I had married a more educated woman. Unless you earn at least one hundred thousand dollars a year you do not deserve a seat at the table of life’.

Brewster FM examined the concept of ‘special’ or ‘outstanding’ contributions, saying (at [88]): … it is fair to say that, insofar as financial contributions

are concerned, the tide appears to be running out in this respect and that the era of special contributions may well be at an end. This process appears to have been started by the House of Lords in White v White [2000] UKHL 54; [2001] 1 All ER 1. The speeches of the Law Lords in that case were discussed and endorsed by the Full Court of the Family Court of Australia in Figgins and Figgins [2002] FamCA 688; (2002) FLC ¶93-122. Encouraged by this case the English Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685 effectively put an end, in England at any rate, to the concept of special financial contributions. In a discussion of relevant authorities, Brewster FM said (at [94]): In the present case for all practical purposes the husband was the sole breadwinner. I would not have made a contribution based adjustment in favour of the wife even if he did nothing around the house and the wife had therefore made all the non financial contributions. To do so would be to quantatively [sic] compare financial and non financial contributions. This is impossible, or at least undesirable. Brewster FM concluded (at [95]): In summary for the reasons that I have explained I am not bound by the [obiter] dicta of the [Full] Court in Kennon and for the reasons I have given I decline to follow it. I believe that contributions are to be measured in absolute terms and not weighted by considerations of arduousness, whether caused by domestic violence or otherwise. Brewster FM added that the subsequent decision of the Full Court in S and S [2003] FamCA 905 in which Kennon was the subject was also dicta (not its ratio decidendi) and was thus not binding, and agreed (at [99]) with Altobelli FM’s remarks in

Kozovska and Kozovski ([2009] FMCAfam 1014 at [77]) which included this statement: Assessing the extent that the more arduous contribution should be reflected in the property settlement is difficult, and rather arbitrary. Counsel for the wife submitted it should be 10%. I accept this figure as being appropriate under the circumstances of this case, but, quite frankly, if I had been asked to assess contribution at a higher figure, I would have. My real concern, however, is as to the artificiality of a ‘Kennon’ type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10% or any other figure could possibly be characterised as compensatory because no amount should compensate her for what she experienced at the hands of the husband. On a property pool of about $1,300,000, 10% is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. Clearly the adjustment that the Full Court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one’s spouse in persisting with contributions in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts. [page 495] Brewster FM submitted (at [100]) that:

[I]f domestic violence is to be taken into account in the section 79 exercise it is for the legislature, not the judiciary, to take the lead. To import issues of domestic violence into the section 79 issue is in reality an exercise in public policy. Brewster FM declined to make the contribution-based adjustment sought by the wife by reason of her care of a disabled child (Y) (who has cerebral palsy) or the contributionbased adjustment sought by the husband by reason of his contribution in the role of stepfather to the support of the wife’s child (Z).

In the matter below the wife suffered post-traumatic stress disorder as a result of the husband’s violence to her throughout the marriage.

In Fairchild and Fairchild [2010] FMCAfam 527 Bender FM assessed contributions and s 75(2) factors in respect of an asset pool of $309,000, where the parties’ nine-year relationship was interrupted by four and a half years of imprisonment served by the husband for subjecting the wife to ‘horrendous ongoing violence’ (at [67]). The history of the husband’s criminal activity against the wife between 1999 and 2009 makes sober reading. He was convicted of the following: eight unlawful assaults; twenty-two breaches of intervention orders; five charges of prohibited person possessing a firearm; two charges of stalking; two charges of threatening to kill; and three charges of threatening serious injury.

The husband was incarcerated for a total of four and a half years for these offences (at [52]). Given the evidence, it seems extraordinary that the wife married the husband in 2003 after he had served a term of imprisonment for assaulting her. This is not to be critical of the wife but it illustrates how complicated the relationship between perpetrator and victim can be. Although the husband was found to have had an initial equity of $40,000–$50,000 in their home (a small damages award of his having been used to buy a motor cycle was held not to be a contribution), contributions were assessed at 57.5 per cent in the wife’s favour. Applying Kennon [1997] FamCA 27 (FC), Bender FM said (at [68]): I am satisfied that the husband’s initial greater contribution is outweighed by the wife’s subsequent contributions that were made more arduous because of the husband’s ongoing violence and that there should be an adjustment in the wife’s favour of seven and a half per cent. For another Kennon adjustment, see also Ferdinand and Ferdinand [2010] FMCAfam 465 at [153]–[158] where Burchardt FM made a contributions adjustment of 10 per cent (of an asset pool of $300,000+) in favour of a wife who had endured years of her husband’s ‘controlling, domineering, mean’ behaviour, the court adding (at [153]): ‘Living with him must have been a purgatory.’

[page 496] The matter following concerns a short marriage, but one in which considerable violence was inflicted on the wife. In

reliance on the Kennon principles, the wife sought and received a higher percentage of the assets than she would have done absent the violent conduct of the husband.

In Damiani and Damiani [2012] FamCA 535 at [1] Watts J, in determining property proceedings, stated: The parties married and then lived together for 19 months. They had one child [the wife also having in her care two children from her first marriage]. The husband contributed the bulk of the capital to the marriage and is on a far superior income [$239,200 against the wife’s $31,000]. The net assets of the parties are in excess of $3,900,000. The wife has had the major responsibility of looking after the child since separation which happened nearly eight years ago. During the marriage, there were five occasions on which the husband perpetrated family violence against the wife. The wife had, but has recovered from, post-traumatic stress disorder. The wife says the family violence has made her contributions in the role of homemaker and parent significantly more arduous. The husband has [financially] supported the wife and the child during the period since separation. After reviewing the evidence as to the husband’s acts of violence towards the wife and Rose J’s earlier findings (in a parenting matter) as to the five assaults, Watts J said (at [175]–[176]): In the circumstances of this case I am willing to infer that the wife’s contributions in the role of homemaker and parent during the period over which the violence took place during the period of cohabitation were made significantly more arduous by that violence. This was a period of 15 months. … I accept what she was saying about the apprehension and heightened emotion that she experienced, around dealing with the husband’s time with N [the parties’ child] after the separation.

In relation to the application of the wife for an increased

percentage owing to the violence, Watts J concluded (at [179]): I accept that it is appropriate to increase the wife’s assessed contributions, for a period of 15 months during the time the parties were together, by an uplift of 25 per cent on what they would have been had they not been made significantly more arduous by the husband’s conduct. I will increase the contributions the wife has made since separation by an uplift of 5 per cent on what they would have been had they not been made significantly more arduous by the husband’s conduct. See also Teesdale and Wileman [2014] FamCA 177 where despite violence the Kennon principal did not apply.

The matter of Searle (formerly Pencious) and Pencious [2013] FamCA 375 involved a 20-year marriage, two children aged 19 and 16 and an asset pool of $2 million. Benjamin J had to consider two distinct issues. The first was whether the wife had a legal or equitable interest in the Searle Family Trust and the second related to the impact of family violence on her contributions. [page 497] On this second issue Benjamin J referred to the principals in Kennon (at [286]) and concluded (at [326]): Over the period from marriage until 1 December 2008, I find that the husband’s violence made the wife’s contributions significantly more arduous than they ought to have been, and I have taken this into account when assessing the parties’ respective contributions within s 79 of the Act. A five per cent allowance ($100,000) is

that which I have determined appropriate. The violence endured by the wife and the children was, in this case, exceptional and falls within that narrow band of cases to which the Full Court of this Court referred in Kennon. It had a discernible impact upon the wife.

8.68 In the Australian Law Reform Commission Report, Family Violence — Improving Legal Frameworks (2010), reference was made to the manner in which the Family Court deals with financial matters between parties where serious allegations of violence are made. The Report stated (in the introduction to ch 9): Part VIII of the Family Law Act deals with property and spousal maintenance orders, providing a mechanism for parties to alter property rights that would otherwise apply under common law and equity. Section 79 provides the court discretion to alter property rights to effect a just distribution between the parties. Generally, the court considers the contributions and future needs of the parties in making this assessment. In the Marriage of Kennon (Kennon) provided clear authority that family violence is a relevant factor in determining a party’s contribution under s 79 of the Family Law Act. To satisfy the Kennon criteria, a party must prove, on the balance of probabilities that he or she was subject to a violent ‘course of conduct’ during the marriage, which had a ‘significant adverse impact’ upon the party’s contributions or, in the alternative, which made those contributions ‘significantly more arduous’.

In following matter there were many issues to be resolved in relation to the division of property and the nature of the contributions made under s 79 to the acquisition,

conservation or improvement of any of the property of the parties to the marriage. Our interest, however, lies in whether the contributions of the wife were made more onerous by the violent conduct of the husband.

Maine and Maine [2016] FamCAFC 270 before Ryan, Murphy and Kent JJ concerned a successful application of the wife to appeal against the orders of Vasta J for a property settlement after an 11-year post-separation period. The order of Vasta J was that the parties’ assets be divided as to 65 per cent to the wife and 35 per cent to the husband (see Maine and Maine [2015] FCCA 1753). In doing so his Honour looked at the contributions made by each party. His Honour did not, however, treat the argument of the wife that her contributions were akin to those of the wife in Kennon with sufficient gravity. Vasta J was certainly mindful of the conduct of the husband saying (at [66]– [68]): I do accept that there may well have been incidents of domestic violence. I do accept that the conduct of the husband could well have caused fear to his daughters. I accept [page 498] that when intoxicated, the husband had a propensity to irrationally verbally, and sometimes physically, abuse the wife. However, I cannot see evidence that illustrates how such conduct has made the contributions by the wife more arduous than they would ordinarily have been. Notwithstanding these most unfortunate character traits of the husband, it is obvious by reference to the letters

that the wife was still prepared for some form of reconciliation. I accept that this was an unhappy marriage and I accept that the wife would often ‘have her heart broken’ by the behaviour of the husband. But for me to further adjust the contributions because of the nature of this particular relationship would mean that I am indirectly reimporting into matrimonial law the concept of fault. If there were such a concept still in matrimonial law it may be that the wife would have easily proved this aspect. But fault is no longer part of matrimonial law and the evidence of the ‘domestic violence’ does not reach a point that would allow me to make any further adjustments to the contributions. The Full Court found (at [48]–[49]): His Honour appears to accept that family violence, as defined within the Act, occurred. … his Honour makes a specific finding that there was no ‘evidence that illustrates how such conduct has made the contributions by the wife more arduous’. We consider that this finding by his Honour is erroneous. It ignores, with respect, direct evidence given by the wife in her affidavit not challenged substantively in crossexamination and not the subject of any adverse finding by his Honour. The wife gave direct evidence that family violence had made the household tasks and care of the children ‘more difficult’ … In addition, given the wife’s detailed evidence of the history of the husband’s drunken violence and abuse over a period of about 20 years; the fact that no finding contrary to that evidence was made; and his Honour’s findings quoted … above, we are, with all respect, unable to understand how it was not, in any event, an inescapable inference that the wife’s contributions – in particular her s 79(4)(c)

contributions at the very least – were made ‘more onerous’.

To say that this is a fascinating matter is not hyperbole. Here, three senior judges are undermining the ‘no fault’ principle so seemingly important to the integrity of the FLA and they do so in a way that can give hope to the victims of violence within a marriage. In order, however, to convince the Family Court of the truth of the allegations, the burden of proof must be sufficiently satisfied, not just that the misconduct occurred but also the manner by which it impinged on the contributions to the marriage of the party bringing the allegations. The standard of proof is that of civil proceedings, that is, ‘the balance of probabilities’. Throughout this book there are references to Briginshaw v Briginshaw (1938) 60 CLR 336 in which Dixon J spoke of the evidence needed in order to sustain an application to obtain a decree of divorce on the grounds of adultery. His Honour described the civil standard of proof in practical terms: [I]t is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal … But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved: at 361–2.

[page 499] This common law expression of the standard of proof necessary in the Family Court and Federal Circuit Court is

echoed by the federal rules of evidence in the Evidence Act 1995 (Cth). Section 140 in Pt 4.1 of the Act provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

The emphasis on the importance of evidence here is by design. All too often matters involving financial matters coupled with allegations of violence go to the Federal Circuit or Family Court ill prepared. The ‘no fault’ system of the FLA does not easily change its parameters. Nor should it in the majority of applications before the court. Some matters, however, involve conduct so abhorrent that in another setting it would give rise to criminal proceedings. There are many matters that resemble Kennon coming before the Family Court, but few which can satisfy the evidentiary burden of displacing the ‘no fault’ scheme of the FLA: see Noogle and Noogle [2017] FamCA 140; Britt and Britt [2017] FamCAFC 27; Welch and Abney (No 2) [2015] FamCA 1116.

Wastage of assets 8.69

The underlying scheme of the FLA in relation to the

division of property under s 79 means that the moral conduct of the parties is not usually relevant in judicial decisions when determining property settlements. In some matters, however, fault on the part of one party may be very important to the ultimate outcome: not moral fault in the accepted sense of the word, but conduct which reduces the matrimonial assets of the parties. If the court determines that the deliberate actions of one party accounts for the loss or ‘wastage’ of the assets, the court may order that the loss be borne solely by that party. Nevertheless, it must be seen as just and equitable for the court to do so on the basis of financial loss, rather than any disapproval in the moral sense.

James and James [2013] FCCA 1188 before Phipps J concerned an application for the settlement of the property of the husband and wife under s 79 of the FLA. The amount of the pool was a small one. The major asset was $392,570 held in a solicitor’s trust account. This amount was left from the sale of the former matrimonial home. One of the main questions to be answered was whether there should be an allowance against the husband for excessive expenditure on gambling and alcohol and the loss of his business. [page 500] The answer to this question must be based on principles of justice and equity. In approaching the steps necessary, Phipps J said (at [4]): The court must determine, as required by s 79(2) whether it is satisfied that in all the circumstances it is

just and equitable to make an order. In this case the parties have separated, the separation is permanent, and both parties apply for the court to make an order. The basis upon which they lived together with their children in their principle asset, the former matrimonial home, and shared their finances is gone. It is just and equitable to make an order for division of property in accordance with the provisions of s 79. In relation to the finances of the parties, Phipps J drew attention to the wife’s assertion that the husband drained the finances by excessive alcohol consumption and gambling. His Honour stated (at [44]–[45]): She claims he spent on alcohol $24,000 per year during the last four years of the marriage from August 2006 to August 2010 and in addition she claimed he spent considerable sums gambling. The evidence relied on by the wife is withdrawals by the husband from the parties’ joint bank account, a (omitted) Bank account and credit card payments. These show that at regular intervals, often less than weekly, the husband made cash withdrawals of several hundred dollars in a day from Automatic Teller Machines at hotels which also have gambling facilities. When asked ‘what would you use cash for at a gaming venue’, his answer was ‘food, alcohol, have a punt’. He acknowledged regular betting on Thursday and Saturday nights. The husband denied, however, that the considerable sums taken from the joint account of the parties was all spent on pleasure. He claimed that most of the cash withdrawn was paid to tradesmen. In cross-examination of the husband, an example of withdrawals for a typical month was given (at [49]): … cash withdrawals at various Automatic Teller Machines. These are $200 withdrawn at (omitted) Hotel

on 12 July 2009, $200 withdrawn from an Automatic Teller Machine in (omitted) on 13 July 2009, $200 withdrawn at (omitted) Hotel on 17 July 2009, $200 withdrawn at (omitted) Hotel on 18 July 2009, $200 withdrawn at (omitted) Hotel on 18 July 2009, $120 withdrawn at (omitted) Hotel on 21 July 2009, $120 withdrawn at (omitted) Hotel on 22 July 2009, and $200 withdrawn at (omitted) Hotel on 22 July 2009. The cross examination continued with a similar pattern into August and September 2009. Phipps J said (at [52]): I am satisfied that the husband’s gambling and associated expenditure on alcohol and food is waste and that there should be a 5% adjustment for this consideration. The wife also claimed that the reckless manner in which the husband ran his failed business should be classified as further waste. With this the court did not agree. His Honour stated (at [55]): The evidence, such as it is, suggests that the failure of the business was due to circumstances outside the husband’s control. There is no evidence of waste for this reason. It is important to note that there is no rule establishing that gambling of itself leads to a finding of ‘wastage’. In so far as it is viewed by the Family Court it is the degree [page 501] to which the conduct diminishes the pool of assets available for settlement between the parties which is the deciding factor. Although this matter covers many important aspects of an

application for a settlement of property under s 79 of the FLA, it is the focus on allegations by the wife of wastage of the matrimonial assets which concerns us here.

Sattle and Easton [2012] FMCAfam 1166 before Altobelli FM (as his Honour then was) dealt with a six-and-a-half-year (childless) relationship of two 34-year-olds. They sought an order altering the property interests of the marriage. The court found a net asset pool of about $1,800,000 (of which $150,000 was super); initial contributions of equal value (of about $90,000); but that the husband’s earnings during the relationship totalled more than $4,675,000. The wife was also found to have contributed a $67,000 redundancy in the second year of the parties’ relationship. The wife sought add-backs totalling over $43,000 for the husband’s wastage of the parties’ assets, thereby reducing the overall pool available for distribution. In relation to this, his Honour stated (at [22]): It is the wife’s case that towards the end of the relationship, and then immediately after separation, the husband had wasted significant joint funds on expenses such as online pornography, prostitutes and mistresses. She asserts that these expenses include travel and accommodation, online debits to pornographic websites, and membership fees to dating agencies and ‘sugar daddy’ organisations. The husband does not deny the conduct in question, nor the expenditure. He submits that the wife has not established, firstly, why these funds should be added back and, secondly, how the figures were calculated. His Honour continued (at [24]): The wife’s case, in effect, is that the money expended is

property of the husband and wife and used for the benefit of the husband only, and that if he had not spent it, it would otherwise have been available for distribution between the husband and the wife … It was not contended by the husband, nor could it be reasonably so contended, that the expenditure was for his reasonable necessary living expenses … In making it plain that he agreed with the wife’s contention, his Honour continued (at [25]): The expenditure bears the characteristic of being reckless, negligent or wanton, the overall effect of which was to reduce or minimise the pool of assets … Senior counsel for the husband argued that it was not in the public interest for courts to conduct this sort of detailed examination of the appropriateness of expenditure. He submitted, rhetorically, would it extend to the purchase of Playboy magazines? True it is that it is ‘not the court’s function to conduct an audit of the marriage or of the relationship finances’: Mayne [2011] FamCAFC 192 … However, the expenditure is clearly ‘property’ for the purposes of s 79. The husband seeks to exclude it from the balance sheet and, the court finds, advances no cogent reasons for doing so. Section 79(2)) enjoins the court to make a ‘just and equitable’ order. Whether the expenditure in question is 5 per cent of the husband’s income, or 50 per cent, it cannot be a just and equitable order from the wife’s perspective if the sum in question is arbitrarily excluded from the pool of assets available for distribution between them, in the circumstances of this case.

[page 502]

Section 79(4)(b) — indirect financial contributions to the acquisition, conservation or improvement of property 8.70 Contributions of this nature occur quite frequently in applications under s 79 of the FLA. Estimating the quantum of such contributions can be very difficult.

This was acknowledged by Nygh J in Marriage of W (1980) 6 Fam LR 538 at 547; FLC ¶90-872, where his Honour stated: The court cannot shirk its obligation to assess the contribution of the parties, in so far as imponderables such as indirect contributions can be assessed.

8.71 Examples of the types of contributions which are relevant under s 79(4)(b) would be physical labour by one or both of the parties in the construction of the matrimonial home and work undertaken to maintain and improve the property whether painting, gardening, constructing paths and driveways, adding patios or other similar activity. Many of these undertakings carry with them the need to spend money on materials. This type of expenditure on improvement of the matrimonial assets would fall within the category of direct financial contribution. Physical labour is not, however, the only set of circumstances giving rise to an indirect contribution to the acquisition, conservation or improvement of property under s 79(4)(b).

In Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC ¶92108, the Full Court reinforced the recognition afforded to a wife’s indirect contribution to the husband’s business. The husband and wife were married for 30 years, during which time the wife was employed in household duties. The husband was employed in his own company in which the wife acted as a director and secretary. The parties separated and the orders were made to finalise their affairs. The wife was awarded around 43 per cent of the property including her superannuation and long service leave entitlements and the husband about 57 per cent of the property excluding his substantial entitlements. On appeal the Full Court held (at 614) that, although the trial judge had recognised the wife’s former contribution as a director and secretary, he failed to recognised the wife’s indirect contributions to the business. This indirect contribution included: her acquiescence in the operation of the business as determined by the husband; her acceptance of a modest standard of living so that business capital could be built up; and her support of the husband’s business decisions.

8.72 It should be noted that s 79(4)(a) and (b) specifically provide that the contributions should be taken into account whether or not the property to which the contribution was made has ceased to be the property of the parties or either of them since the making of the contribution. [page 503]

Windfalls 8.73 The old maxim that money cannot buy happiness is reflected in several cases that have come before the Family Court. We will consider a number of cases in which the parties benefit from good fortune through winning substantial sums of money and their relevance as contributions to the marriage.

In Marriage of Zyk (1995) 19 Fam LR 797; FLC ¶92-644, the husband had been consistently engaged in a lottery ticket syndicate some years prior to the marriage. A win occurred two years after the parties had married and when the marriage broke down the question arose as to by whom the contribution was made. At common law, title to lottery winnings vests in the person in whose name the ticket is issued: Van Rassel v Kroon (1953) 87 CLR 298. In Zyk, the Full Court said (at 808): In our view, the critical question in such questions is — by whom is that contribution made? In the ordinary run of marriages a ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase in that context and would be treated accordingly … Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties. The income

of the working member is treated as joint in the same way as the domestic activities of the non-working partner are regarded as being for their joint benefit. … … There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion, but in the generality of cases with which this court would normally deal this appears to us to be the correct approach and the correct outcome.

This approach was approved and expressly applied in Marriage of Brease (1998) 22 Fam LR 518; FLC ¶92-973, where a lottery win was treated as a contribution made solely by the party whose money paid for the ticket. The result in that case was determined by the fact that, at the time of the win, the parties were not married and were not cohabiting; nor had they started pooling their assets or earnings. The trial judge’s finding that this took the case outside the ‘usual range of cases’ covered by Zyk was upheld by the Full Court. According to the husband, the parties had started living together in January 1993; the wife, however, said that they did not start living together until April 1993. On 25 March 1993, the sum of $473,745.50 was won on a lottery ticket physically purchased by the husband but using the wife’s lotto card. Soon after the win, the parties opened a joint bank account for the purpose of depositing the winnings, and paid out the mortgage on the husband’s property (some $36,000). The parties married in January 1994 and separated in December 1994. The main issues in dispute at the trial were whether the parties cohabited and/or pooled their funds prior to the win; and whose funds had been used to purchase the winning ticket.

[page 504] 8.74 As already mentioned, at common law the title to lottery winnings vests in the person in whose name the ticket is issued, while an equitable claim depends either on a claimant showing that he or she paid for the ticket or that there was an agreement between the parties that the ticket was to be purchased jointly. In Brease, the husband was unable to establish either sort of claim. However, lack of contribution may not be fatal in every circumstance.

Farmer and Bramley (2000) 27 Fam LR 316; FLC ¶93-060 considered the case of a lottery win after the parties were separated. In this case, the husband and wife had been separated for 18 months, after being married for 12 years. The husband won $5 million and the Full Court by majority upheld the trial decision’s order granting 15 per cent of the lottery ($750,000) to the wife on the basis of s 75(2) considerations.

In Eufrosin and Eufrosin [2013] FamCA 311 Stevenson J considered a property adjustment application in respect of a 20year relationship where the wife received $6 million from a gambling win six months after separation. Excluding property that was acquired from the win, there was a matrimonial pool with a net value of about $2 million. The background to the gambling win was that after separation ‘the husband arranged for [a family] company to pay to the wife the sum of $2,000 per month. These payments were added to the wife’s loan account with Eufrosin Pty Ltd’ (at [44]) and the

husband ‘caused these payments to be stopped when he became aware’ of the lotto win (at [45]). Further, prior to the win, the wife ‘met with her sister … once or twice per week’ and ‘frequently discussed the wife’s financial position’. The sister ‘regularly provided the wife with amounts of $20 to $50 per week’ (at [54]). It was the evidence of the wife and her sister that the sister permitted the wife to use her gaming card and gave her money towards the ticket (at [55]– [56]). Post-win, the evidence of the wife and her sister was that they would split the win so that the sister received $1 million. The wife submitted that a two-pool approach was appropriate and that ‘on no view, could it be said that the husband made any contribution to that windfall’ (at [65]). The wife also submitted that Farmer and Bramley (2000) 27 Fam LR 316; FLC ¶93-060 was distinguishable as in that case ‘there was simply no assets (apart from the proceeds of the lottery win) which could have been the subject of any order’ and further, the contributions of the non-winning party in Farmer were made ‘more burdensome by the husband’s drug dependency, coupled with the disparity between their financial circumstances’ (at [65]). The husband argued that ‘a single pool approach [was] appropriate, on the basis that the money used to purchase the winning gambling ticket came from “joint funds”’, the wife’s purchase of the ticket being ‘the continuation of a longstanding process [of gambling] of which the husband was aware’ throughout the marriage, and further, that ‘the funds used to acquire the [gambling] tickets were … provided [page 505] to the wife by the husband through [the family company]’ (at [66]). The husband also sought that the $1 million ‘gifted’ to the wife’s sister be added back notionally.

Stevenson J said (at [75]–76]): It seems to me that the assets and liabilities of the parties to these proceedings fall into two distinctly distinguishable categories. Firstly, there are the assets and liabilities which they accrued during their twenty years of cohabitation, during which they each made contributions of the various kinds which are recognised by the Act. Secondly, there are the assets and liabilities which came into existence after separation as a direct consequence of the wife’s gambling win. In the circumstances of this case, I am persuaded that it is appropriate to adopt a two pool approach as contended on behalf of the wife. Pool 1 will comprise of the assets, liabilities and financial resources which existed as at the parties’ separation, although not necessarily at the values or quantum of that date. Pool 2 will consist of the assets, liabilities and financial resources which were derived from the wife’s gambling win. As to the husband’s add-back submission, Stevenson J said (at [89]–[90]): I do not accept that the wife made a gift of $1 million to her sister … It seems to me that it could rather be argued that [the sister] gifted $5 million to the wife. The winning gambling ticket was purchased in [the sister’s] name, possibly with money provided wholly or in part by her, and the prize money was deposited into her [the sister’s] account. She then transferred $5 million into an account of the wife. I am satisfied and I find that the wife and [the sister] jointly formed an intention to purchase gambling tickets on a weekly basis, using pooled funds, and to share any winnings as they deemed appropriate from time to time.

I will not add back to the list of assets the $1 million which [the sister] received from the gambling prize money. Dealing then with contributions to the winnings, Stevenson J said (at [106]): As noted, the wife had available funds from four sources when she purchased the winning ticket. The money could have come from funds provided by [the sister], money paid to her by [the family company] and debited to her loan account, her own tax refund of $6,000 or an unquantified sum being the return of … school fees. The money used by the wife to purchase the winning ticket could have come from any one of these sources or multiple combinations thereof. It is thus impossible to identify the precise source of the funds used by the wife to purchase the winning ticket. In my view, the husband cannot simply assert that the purchase money came from ‘joint funds’. His Honour continued (at [108]–[109]): Counsel for the wife referred to the English decision of S v AG and MR [2011] EWHC 2637 where Justice Mostyn remarked: The price of the ticket, one pound or two pound, is so inconsequential as can be safely disregarded. Arguments that the one pound or two pound derives from the joint matrimonial economy are, it can be said, pure sophistry. The money could just as easily have been found on the pavement.

For these reasons I find that the husband made no contribution to the money which the wife applied to purchase the winning gambling ticket in early 2009. The court found that ‘the husband made no contribution to the net Pool 2 assets’, being the property acquired from the winnings (at [119]).

[page 506] As to s 75(2), Stevenson J said (at [125]–[127]): It seems to me that the large disparity in the parties’ financial circumstances warrants an adjustment in favour of the husband from the net Pool 2 assets. He is 62 years old and must have a limited future working life. Assessment of the quantum of a section 75(2) adjustment in favour of the husband contains elements of arbitrariness. The adjustment of 5% of the net Pool 2 assets, for which the wife contended, would be a sum of $168,426. That amount seems to be inadequate recognition of the husband’s future needs. On the other hand, 33.3%, or a sum of $1,111,615 seems excessive and in my view could only be justified if the husband had made some contribution to the Pool 2 assets. In the circumstances of this case, I will make an adjustment in favour of the husband of $500,000 on account of section 75(2) factors.

The cases now establish that the legal title to a lottery ticket vests in the person or persons in whose name the ticket issues. In disputes about entitlement to a share in the prize, the onus lies upon the claimant to prove the entitlement. Further conduct after the lottery win has been found to be significant in determining the terms of the agreement as to contribution to the ticket and any equitable interest in the prize. The matter following is unusual in that the Full Court of

the Family Court were less than generous when looking at the contributions of the wife.

In Elford and Elford [2016] FamCAFC 45 before Bryant CJ, Murphy and Cronin JJ the Full Court dismissed a wife’s appeal claiming she was entitled to a greater share in the property pool which consisted mainly of lottery winnings. The Full Court upheld the trial judge’s decision that the winnings were not a joint endeavour but rather that the husband had made the sole contribution to the winnings (at [12]). The parties began living together in 2003, married in 2007 and separated in 2012. At trial the husband was 68 years old and in poor health and the wife was 47 years of age. When cohabitation began in 2003, the wife had three dependent children from her previous relationship. They were aged three, six and nine years. Those children lived with the parties during the relationship. In 2014 the parties appeared before Robert J in Elford and Elford [2014] FCCA 2531 seeking a settlement of their assets pursuant to s 79 of the FLA. It was agreed between the parties that the assets amounted to about $1.4 million. The wife received barely in excess of 10 per cent of the pool amounting to $51,000. She had sought about 32 per cent. The wife appealed the decision of Roberts J to the Full Court. The Full Court confirmed the trial judge’s assessment of the wife’s contribution as 10 per cent, finding that the husband had made the sole contribution to the lottery winnings. In considering its decision the Full Court explored the situation in Elford and in doing so paid particular attention to the manner in which the husband and wife dealt with [page 507]

financial matters between them. The grounds of appeal were 13 but amounted, in effect, to the following questions on behalf of the wife: whether the trial judge erred in treating the lottery winnings as a ‘special contribution’ by the husband instead of assessing the contributions ‘holistically’; whether the trial judge failed to give sufficient weight to the wife’s contribution as homemaker and parent; whether the trial judge gave adequate reasoning for the assessment of the wife’s contribution; that the trial judge’s decision was ‘plainly wrong and manifestly unjust’ (at [8]). The Full Court looked closely at the circumstances having an impact on the relationship and the manner in which the marriage was conducted. It was stated (at [4]–[5]): Two specific facts were central to the determination of the trial judge. The first was that in early 2004, approximately 12 months after the parties commenced cohabitation, the husband won $622,842 in a lottery. The husband also had savings which ‘topped up’ the lottery win to $650,000. That became and remained thereafter, a term deposit in his name. The term deposit was included in the property of the parties for division. It represented 20 per cent of the total value of their property and superannuation interests. The second specific issue was that the husband suffered a stroke in 2011, approximately 12 months prior to separation. It left him blind and unable to drive or read. He currently requires kidney dialysis three times per week and paid carers assist him with household tasks on a daily basis. Although the court would be mindful of the future needs of the

husband, their Honours were eager to explain to the wife that, although she had the impression that the very fact of their marriage would lead to the lottery winnings being treated as a joint endeavour ‘because we were in a relationship’, this was not so. Instead, the contribution of the parties was the focus of discussion (at [14]). The court explained (at [17]) that a lottery winning will be treated as the fruits of a joint partnership: Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly’ (at para17]). However, the court cautioned that lottery winnings will not be treated as fruits of a joint partnership where the parties conduct their affairs in a way where this conclusion would not be appropriate. The court held that this was the situation in this case. The husband and wife led financially separate lives, each having their own separate bank accounts. Therefore the court held that it was not appropriate for the winnings to be divided as the fruits of a joint partnership. The court pointed to these critical facts: the wife had not contributed financially to the ticket; she did not pick the winning numbers; the husband had been purchasing weekly tickets with the exact numbers since 1995; [page 508] at the time the ticket was purchased, the wife and husband

had been together for less than a year; the ticket was in the husband’s name; the funds were deposited into the husband’s bank account (at [14]). As to the other grounds of appeal, the court confirmed that the trial judge had exercised his discretion appropriately, having regard to the totality of the circumstances, and how these should be expressed in monetary terms.

Gifts and inheritances — financial contribution made on behalf of a party 8.75 It is not unusual for parties to a marriage to receive financial assistance from their parents or other members of their family. Equally, one or other of the parties to a marriage may benefit through inheritance of money or assets under a will. Benefits received in this way often become the subject of dispute between the parties in an application for a property settlement in the Family Court. In these circumstances, the question is whether the gift or benefit should be regarded as a contribution on behalf of the party who is the direct beneficiary, in the case of a single beneficiary, or on behalf of both parties, where the gift is to both. It should also be noted that in cases of this kind it is not uncommon for disputes to arise as to whether the property was intended as a gift, or was merely made available to the parties by way of loan, remaining the property of the donor. In some cases, it is argued by the parties that the gift was a loan and therefore becomes the basis of an assertion by one of the parties that it

is money that must be paid back. The veracity of the assertion then becomes a matter of evidence. There are many cases in this area, but little consistency of outcome.

In Marriage of Gosper (1987) 11 Fam LR 601; FLC ¶91-818, the authorities were reviewed by Fogarty J. In that case, a gift of land was made by the wife’s parents to both of the parties and they were registered as joint owners. Fogarty J, however, found that the ‘motivating circumstance was the relationship between the wife’s parents and the wife and it (the land) was transferred to benefit her because she was their daughter. Thus the gift was treated as a financial contribution made directly on behalf of the wife’. The judgment in this case was followed in the case of Marriage of Kessey (1994) 18 Fam LR 149; FLC ¶92-495, where the Full Court took into account the relationship between a spouse and the spouse’s parents in concluding that the gift from the parent should be regarded as a contribution of that spouse.

The question was discussed again in Marriage of Pellegrino (1997) 22 Fam LR 474; FLC ¶92-789. In that case, Chisholm J took judicial notice of the fact that in making such gifts, or in providing benefits in kind, to their married children, parents do not [page 509] normally have expressly informed intentions as to whom they intend to benefit. In the matter before him, his Honour found that the parents intended to benefit their daughter only, even though

the husband derived direct and indirect factual benefit from the gift. This judgment reflected his Honour’s reading of previous cases. He said ‘it is normally appropriate to treat the provision as a contribution made by or on behalf of the spouse whose parents made it’ (at 483).

8.76 It is important to note, however, that property does not fall into any protected category merely because it is an inheritance or gift. This was the finding in Marriage of Bonnici.

In Marriage of Bonnici (1991) 15 Fam LR 138; (1992) FLC ¶92272 it was also held that the treatment of inheritances should be considered on a case-by-case basis. The Full Court, however, did set out some guiding principles in relation to the treatment of such assets. Nicholson CJ, Nygh and Tolcon JJ said (at 144): The more difficult issue in this case is as to whether the same should be treated differently from other types of property in which the parties clearly have an interest. The answer, we consider, must depend on the circumstances of individual cases. If, for example, in the present case, there had been no other assets than the husband’s inheritance, but the wife had, as his Honour found, clearly carried the main financial burden in the support of a family and also performed a more substantial role as a homemaker and parent than the husband, then it would clearly be open and indeed incumbent upon a court to make a property settlement in her favour from such an inheritance. A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there

are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question. The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property: see Marriage of James (1978) 4 Fam LR 401; FLC ¶90-487. But there was no evidence of this in the present case despite submissions by counsel for the wife to the contrary. Accordingly, we think that in the present case the monies received by the husband from the sale of the freehold and from his uncle’s estate should not be brought into account.

For application of the above principles in the context of inheritances received after separation and short marriages, see Marriage of Wall (2002) 29 Fam LR 1; FLC ¶93-110 and Marriage of Figgins (2002) 29 Fam LR 544; FLC ¶93-122, respectively. A prospective inheritance by definition can not fall into the category of property pursuant to s 4(1). It is, however, an area that is gaining some importance in property disputes: White and Tulloch v Tulloch (1995) 19 Fam LR 696; FLC ¶92641; Marriage of De Angelis (1998) 30 Fam LR 304; unreported decision of Moore J in C and M [2000] FamCA 1086; and Marriage of Fleming [2007] FamCA 4490.

[page 510]

In the matter of Peabody and Peabody [2013] FCCA 1980 the husband received an inheritance almost three years after separation with an agreed value of $750,000. The parties agreed that the wife made no contribution to the welfare of the husband’s mother during her lifetime and made no contribution to the building up of the estate itself. The court considered the inheritance to be a financial resource and took it into account in the overall assessment of s 75(2) factors and awarded the wife a 6 per cent adjustment.

Many matters before the Family Court testify to the generosity of parents. The difficulty most often encountered, however, is whether money received, for example, the purchase of a house or business, is to be categorised as a loan with the expectation of repayment, or a gift.

Mena and Mena [2016] FamCAFC 85 before Bryant CJ, Strickland and Watts JJ considered an appeal from the wife in relation to orders made by Cleary J in Mena and Mena [2012] FamCA 1046 (the paragraph references are to the Full Court decision). In that matter Cleary J altered the interests in property between the husband and wife. The property settlement orders effected a division of the parties’ property as to 55 per cent to the husband and 45 per cent to the wife. In order to achieve that percentage division the orders provided for the husband to transfer his interest in the former matrimonial home to the wife, to discharge various joint liabilities, and indemnify the wife against liabilities, including an alleged debt to his mother. The

wife was required to transfer her interest in various investment properties to the husband, and pay $97,960 to him. Each party was then to retain various assets in their possession. It is the order that the wife pay $97,960 to the husband which was appealed. In addition, a major issue was the two alleged loans by the husband’s mother, respectively $73,000 as the first loan and the second, $77,000. Added to this was the interest of $505,149, totalling $655,149. The husband argued that the total due to his mother, who was a party to the proceedings, ought to be treated as a joint liability of the parties, deducted from the assets otherwise being divided and be paid to his mother. The wife opposed this approach. The decision of Cleary J was predicated on the discretion of the court to determine not to take into account an unsecured liability. In refusing to include the first loan as a liability, her Honour had regard to it being: … unjust to impose on the wife the repayment of a loan to which she was not a party and of which she was unaware. … Further, the rate of interest became punitive as it increasingly exceeded the commercial rates over the years from 1997. The wife had no chance to consider refinancing at a lower rate: at [11]. In dealing with the second loan, Cleary J reached the same conclusion, notwithstanding the Deed of Loan. Her Honour ultimately concluded that this [page 511] greater initial contribution on behalf of the husband resulted in a contributions-based assessment of 65 per cent to the husband

and 35 per cent to the wife. This percentage was adjusted pursuant to s 75(2) of the FLA, the result being an ultimate increase in the wife’s share of the property to 45 per cent. This recognised the wife’s lower income earning capacity and her primary care of the children. In reaching a decision as to the intention of the husband’s mother in giving the ‘loan’ to her son, Cleary J was satisfied that the mother: … had the intention to benefit and assist her son and also, whilst ever his marriage was successful, his wife and children. It was not her intention to impose a financial penalty on him by allowing the loan to run for 13 years then calling for the total amount where interest greatly exceeds principal: at [12]. Nevertheless Cleary J, despite having rejected any legal obligation on the husband to repay his mother, made a contingent adjustment of 5 per cent in the husband’s favour. The wife’s appeal to the Full Court centered on her dissatisfaction with the findings of Cleary J that the husband should be credited with 65 per cent of the initial contributions. The wife submitted that the value of the initial contribution represented only 4.8 per cent of the net assets and that the contribution finding was ‘entirely outside any range of discretion properly available’ (at [71]). A further issue on appeal by the wife was that the trial judge had erred in reducing the wife’s s 75(2) adjustment by 5 per cent on account of the contingency of the husband being required to repay the mother. The wife submitted that this was in effect double counting, by making two allowances for the loans in favour of the husband. The Full Court agreed, concluding that it was not open to her Honour to make an adjustment after having rejected that there was any legally enforceable liability between the husband and his mother.

The Full Court stated (at [88]): In other words, an adjustment had been made as between the husband and the wife and any potential adjustment between the husband and his mother, arising from a moral obligation, should not have played any further part in the calculation of the division of the assets of the parties once the adjustment for the husband’s initial contribution had been made. The Full Court decided to re-exercise its discretion with the knowledge that the parties would now share week about of the children living with them. Clearly the fact the wife no longer had the primary care of the children allowed her to search for employment while the children were with the husband. Ironically, although the Full Court disagreed with the method used by Clearly J, the ultimate outcome was a 55 per cent/45 per cent split in favour of the husband. The wife had asked for the husband to pay her costs of the appeal if she succeeded. The Full Court said (at [138]): The appeal has failed but only after the admission of fresh evidence led to a different conclusion in relation to the weight to be given to the s 75(2) factors. It was partly successful and had it not been for the admission of further evidence would certainly have succeeded. See also Vass and Vass [2015] FamCAFC 51.

[page 512]

Gift to both parties — established by evidence 8.77 In Marriage of Pellegrino (1997) 22 Fam LR 474 at 481; FLC ¶92-789, the court cited with approval the Full Court decision in Marriage of Kessey (1994) 18 Fam LR 149 at 161; FLC ¶92-495, in which it was stated: [T]his case would establish that if there is no evidence of any intention by a parent donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent–child relationship, especially in circumstances where there has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is a child of the parent unless there is evidence which established it was not the intention of the parent to benefit only his or her child.

This part of the finding in Kessey is akin to raising a presumption that a contribution by a parent or relative of a party to a marriage is assumed to be a contribution made by or on behalf of the party who is the child of the donor unless there is evidence to rebut the presumption, for example, where the parents’ gift is in recognition of some service rendered to them jointly by the parties. It should be noted,

however, that the above is given by way of analogy only. There are no presumptions under the FLA.

Gift to one spouse by the other 8.78 A gift by one spouse to another which enables the other spouse to acquire a particular asset may be considered a direct contribution by the spouse making the gift: Marriage of W (1980) 6 Fam LR 538; FLC ¶90-872. In similar fashion, a gift of money by one spouse to another, enabling the discharge of a debt, is a direct financial contribution to the property of the recipient of the gift.

In Marriage of Beneke (1996) 20 Fam LR 841, the question arose as to whether gifts by one party to the other prior to their engagement constituted a contribution under the FLA. The husband and wife were aged 77 and 42 respectively. They met in November 1992: the husband was a patient in a hospital at which the wife worked as a nurse. They became engaged in early January 1993, married in August 1993 and separated in September 1994. There were no children of the marriage. At the time the parties met, each owned assets of considerable value — the husband’s totalling approximately $1 million and the wife’s totalling approximately $400,000. At the time of the hearing, the husband’s assets totalled approximately $700,000 and the wife’s totalled approximately $500,000. On 1 December 1992, the husband gave the wife $1,000 and on 10 December 1992 he gave her a further $10,200. These amounts were used by the wife to reduce an overdraft on a property she owned. Later in December 1992, the husband

gave the wife jewellery to the value of $6,450. On 15 January 1993, shortly after the parties’ engagement, the husband [page 513] gave to the wife $53,346.57, which she used to discharge an overdraft. In addition, the husband spent various amounts of money on a flat that the wife owned in Cairns, ‘to the tune of, perhaps $4,000’ according to the trial judge. Later, the husband gave the wife $14,000 to meet a capital gains assessment on a property owned by her. The parties married on 10 August 1993, and separated on 3 September 1994. In April 1995, the husband, in an application under s 79 of the FLA, sought an order requiring the wife to pay to him the sum of $116,000 and to return to him the jewellery which he had bought her. The wife filed a cross-application in which she sought an order that the home in which the parties had lived be sold and the proceeds be equally divided. At the time the matter came to trial, the wife’s application had not been pursued. The trial judge made an order that the wife pay to the husband the sum of $16,000. Making the order, his Honour pointed out (at 844): … that the marriage lasted but a year, that the wife gave up her pre-marriage employment and the remuneration that she had earned in it, that she worked for the husband in his business, and that she was provided with a residence by the husband during the short period of the marriage. There is some issue about whether their respective homemaker contributions were or were not equal but, given the term of the marriage, this seems to be neither here nor there. The husband appealed. By his notice of appeal, the husband sought to increase the sum payable by the wife to $93,939. The

appeal was allowed and the original order was varied by substituting the amount of $69,346 for the original amount of $16,000. At trial, the husband was unsuccessful in his claim for the return of the jewellery and thereafter abandoned that aspect of the application. In allowing the appeal, the Full Court took into account the original order for $16,000 (made up of $14,000 capital gains tax payments and $2,000 spent on the wife’s Cairns unit). Fogarty and Finn JJ stated (at 847–8): In the year leading up to the marriage and in the period of the marriage itself, the husband made a number of direct payments to the wife and some payments to the refurbishing of her Cairns flat, the total being in excess of $90,000. They were gifts by the husband to the wife. Nevertheless, they may also be treated as contributions by him to her property within s 79(4)(a). They increased her net wealth and reduced his net worth by that amount. Those payments, other than the first two, were made within the framework of the marriage, that is, postengagement or post-marriage. There were no countercontributions by the wife. There was no suggestion that either party made any contribution under s 74(b) or (c); nor was it suggested that the s 75(2) factors played any part in the case, except that the exercise of discretion must take into account the differences in the general wealth and circumstances of the parties. … Section 79 is not an accounting exercise. But this was a short marriage and if the husband’s payments, or some of them, are to be treated as contributions by him at the beginning of the marriage, there are no countervailing circumstances which ‘erode’ their significance in the sense in which that process is understood and most recently referred to in Bremner (1995) FLC ¶92-560. In some circumstances there may be reasons for discounting, for example, the $53,346. …

Mr Marter [counsel for the wife] emphasised that the payments were gifts and that in relation to at least the two pre-engagement payments, if the parties had not married, there would have been no basis for any claim for repayment. He submitted that the [page 514] husband was entitled to be foolish and improvident if he wished to; he could afford to, and the court should not use that as a basis for intervention under s 79 to redistribute the property of the parties. He submitted the payments were all gifts and that the marriage and s 79 do not convert them into refundable gifts. However, it seems to us that payments totalling over $90,000 over a period of about 18 months, largely in the context of their impending marriage, calls for adjustment under s 79. But we do not consider that the exercise of that discretion should include the first two payments. They were comparatively small gifts by the husband very early in this relationship. Having regard to that circumstance and the minimal amounts that they represent compared with his overall wealth we propose to disregard them. The major amount is the $53,346 paid immediately after their engagement and applied to discharge the overdraft. This was, in our view, a significant direct financial contribution by the husband to the wife’s property. There is nothing in the circumstances of this case which cause it to be treated otherwise. No countervailing contributions erode that figure and the wife continued to derive benefits from it after it was paid because of the absence of the obligation to pay interest on the overdraft.

The trial judge ordered the repayment of $14,000 capital gains tax payments and the $2,000 (Cairns unit). … We think the adjustment in respect of these two items was correct. The $14,000 was paid during the marriage to meet a liability of the wife. The work on the Cairns flat was intended to be for their future mutual benefit but, as it turns out, it directly benefits only the wife. In a separate judgment, Kay J agreed with the orders proposed by Fogarty and Finn JJ, stating (at 860): In my view while the fact of marriage might open a door to an exercise of discretion which would otherwise not exist, it does not axiomatically follow that the discretion should be exercised merely because there has been an imbalance of contributions between the parties. Where property passes by way of unconditional gift, then absent any other factor, it may be a proper exercise of discretion not to order the return of all or any part of the property to the donor should the marriage between the parties fail after a short time. … In re-exercising my discretion independently of that of Moss J, I conclude that it would be just and equitable to order the return of some moneys to the husband in this case. He could afford to give away what he gave, and he knew exactly what he was doing when he gave it away. The wife exerted no apparent pressure upon him to make gifts. However, I am persuaded by the reasoning of Fogarty and Finn JJ that a just result in this case is to return to the husband the post-engagement gift of some $53,000.

Section 79(4)(c) — contributions to the welfare of the family

8.79 This important paragraph was inserted into the FLA by the Family Law Amendment Act 1983 (Cth). There had previously been a provision recognising the contribution of a party as a homemaker or parent, but the drafting left it open to argument that such contribution had to be related in some way to the property of the parties. This narrow interpretation, however, had been largely discredited by the early 1980s and the amendment simply resolved any remaining doubt. From that time, it has been clear that the contribution to the welfare of the family is to be given a broad interpretation and is not to be confined to a contribution to the acquisition, conservation or improvement of property. Accordingly, it is clear that [page 515] there is no need to show any connection between contributions to the welfare of the family and the property of the parties or either of them. Nor is such a contribution confined to a contribution in the capacity of homemaker and parent. There is little doubt that the overwhelming purpose of s 79(4)(c) of the FLA is to give recognition to the position of the housewife who, by her attention to the home and the children, frees her husband to earn income and acquire assets.

In Marriage of Rolfe (1977) 5 Fam LR 146 at 148; (1979) FLC ¶90-629, Evatt CJ explained this point when giving the principal decision of the Full Court of the Family Court. Her Honour stated:

The purpose of s 79(4)(c), in my opinion, is to ensure a just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Her Honour then continued: Because of that responsibility she may earn no income or have only small earnings, but provided she makes a contribution to the home and to the family the Act clearly intends that her contribution should be recognised not in a token way but in a substantial way. This finding was expressly approved by the High Court in Marriage of Mallett (1984) 9 Fam LR 449 at 461; FLC ¶91-507. The homemaker contribution could potentially be significantly eroded in a number of situations if the contribution of the income earner is in some way regarded as ‘special’. The notion of special contributions is discussed below.

Assets where no contribution can be shown directly 8.80 The scope of the contribution to the welfare of the family is perhaps best illustrated in cases in which the wife’s contribution as homemaker and parent is seen as entitling the wife to a share of an asset to which she had otherwise made no contribution.

In Marriage of W (1980) 6 Fam LR 538; FLC ¶90-872, the wife

was held to be entitled to a share of the value of the solicitor husband’s legal practice. Nygh J stated (at 547): In the light of the evidence, I must accept the husband’s claim that the wife made little or no direct contribution to the practice. The evidence suggests that she wanted to keep the practice out of the house, and if she did not discourage, she certainly did not encourage visits of clients and partners to the house. Nor did she take an active part in the affairs of the firm itself except on occasional ‘duty functions’. This does not make her a failure as a wife … But it does mean that any contribution made to the value of the husband’s business interest is only indirect in that she kept house and looked after the children for him. This contribution should be recognised in a substantial way, but it can only be treated as a distinctly minority contribution. A figure of 30% appears to be the proper figure … See also Daria and Daria [2009] FamCA 385.

[page 516] In the following case the court found that the contribution of the husband was negligible and therefore he should receive a very minor portion of the property pool. This was despite a claim from the husband that he had contributed to the welfare of the children of the marriage, made improvements to the parties’ various properties and assisted in running the wife’s businesses.

In Walmsley and Walmsley (No 5) [2010] FamCA 1034 it was

ordered that property proceedings proceed undefended, after much delay due in part to the husband’s continual failure to abide by court orders. Net assets at the hearing were assessed at $445,000. Dawe J said (at [10]–[12]): The main issue at trial was whether the husband had made any contribution, financial or otherwise, which the court should take into account in making orders for property settlement. It was the wife’s case that the husband had made no financial contribution at any stage during the marriage. The wife’s evidence is that the husband was in substantial debt [$40,000] when the parties married and that she had assisted him financially by making repayments towards his debts. The husband maintained in his documents that he made non-financial contributions by way of caring for the parties’ children, making improvements to the parties’ various properties and assisted in running the wife’s businesses. While the wife acknowledged the husband’s non-financial contributions, she argued the husband had already received sufficient benefit to offset these contributions. They included expenses paid for the preparation of a property valuation, psychiatric assessment and psychological assessment. In her affidavit, the wife says that the sum of these expenses came to approximately $11,500. The wife also argued that she continued to meet the husband’s expenses for approximately two years following separation. It is her case that for those reasons, she should receive all of the assets she sought in the proposed orders. Dawe J accepted the evidence of the wife and set out the significant factors to be brought into account in assessing the parties’ contributions, saying that following separation, ‘the wife

has provided for the husband in a manner which far exceeds his contributions during the marriage’ (at [81]). Assessing s 75(2) factors, Dawe J noted the husband’s cessation of child support payments, child support arrears of $3,000, the husband’s debt of $102,000 for his legal fees, debts through his persistent gambling and his receipt of $8,500 for his share of tax losses on an investment property (at [89]). The court held that it was appropriate to make the orders sought by the wife that she receive the entire net assets less the husband’s car, which she proposed he retain. Dawe J concluded (at [100]): The husband has already received significant financial benefits therefore the orders which will not entitle the husband to any further share of the asset pool are just and equitable in all the circumstances.

Freedom to earn salary 8.81 It is now well established that, as a consequence of a wife freeing her husband to go out to work, she is regarded as making an indirect contribution under s 79(4)(b) of the FLA to her husband’s earnings, which are clearly a direct financial contribution to property under s 79(4)(a). [page 517] Equality is equity 8.82 In a society which, it may be argued, undervalues the role of homemaker, it is hardly surprising that the question has arisen as to the balance between domestic contributions

of a wife against the income-earning contributions of a husband.

In Marriage of Wardman and Hudson (1978) 5 Fam LR 889; FLC ¶90-466, the court addressed the proposition that as a marriage progresses, provided each spouse plays his or her role as husband or wife satisfactorily, their financial and domestic contribution should gradually balance out, with the result that at the end of a reasonably long marriage each should share equally in the assets. This proposition has been referred to as ‘equality is equity’ and was summed up by the Full Court of the Family Court per Watson, Wood SJJ and Fogarty J thus (at 893): It appears to us that in relation to a jointly owned property of parties whose marriage has broken down or in respect of a property which has been acquired jointly by such parties as a result of their joint contributions over a significant period of time that at least a proper starting point is that the property upon dissolution of the marriage and the resolution of the financial issues between them ought to be treated as jointly owned and ought in ordinary circumstances to be divided equally between them. This we consider is at least a strong prima facie position.

8.83 Ultimately the notion of ‘equality is equity’, placing as it did a fetter on the exercise of judicial discretion under s 79(1) of the FLA, was overturned by the High Court. The High Court did not say emphatically that equality could not be equity under s 79. It did say, however, that there could be no presumption that equality is equity. Members of the High Court emphasised that in light of the facts of particular cases

under s 79, it may well be that equality is equity, not because of any presumption, but because the facts and circumstances of the particular case before the court would lead to this result.

In Marriage of Mallett (1984) 9 Fam LR 449 at 470; FLC ¶91-507, Wilson J said: The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by the wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. … It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case.

[page 518]

The question of equality received a detailed analysis in Marriage of Ferraro (1992) 16 Fam LR 1 at 30–50; (1993) FLC ¶92-335, in

which the Full Court considered the ‘undervaluation of unwaged domestic labour’ (at 35). The Full Court pointed out that it was difficult to compare contributions to property and contributions to the welfare of the family, these being ‘fundamentally different activities’. It was also said that while the assessment of the breadwinner’s performance can be objectively assessed by reference to such things as employment record, an assessment of the quality of a homemaker’s contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent, and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role. The Full Court suggested that in some cases the assessment might take into account ‘special’ features such as where one party has responsibility for the home and children entirely, or almost entirely without assistance from the other party for long periods, or has the care of a disabled or special needs child. Similarly, the breadwinner may be able to demonstrate an ‘outstanding application’ of time and energy to producing income and the application of what some of the cases have referred to as ‘special skills’. At the other extreme, the evidence may demonstrate a neglect of responsibilities or a wasting of income or assets. The Full Court pointed out that the case law seems to suggest that in cases where a party has highly trained professional skills, and they result in a ‘medium range’ of wealth, the contributions are likely to be regarded as equal while where the application of the breadwinner’s skills produces ‘assets in the high range’, the distribution is likely to favour the breadwinner.

Extreme success and skill of one party — special contributions 8.84 In a number of cases, the court has considered whether contributions should be assessed in favour of a

breadwinner who is extremely successful and where the assets are very large.

This matter was discussed in Marriage of Stay (1997) 21 Fam LR 626; FLC ¶92-751. The husband was 55 at the time of the trial and the wife was 53. They married in 1964 and separated finally in 1991. The marriage produced five children. There were no significant assets held at the beginning of the marriage. The wife ceased substantial work outside the home in 1965, becoming a full-time parent and homemaker, while the husband continued in various forms of employment before establishing a building company. The trial judge found that the bulk of the assets of the parties had been acquired from 1985 until separation through the husband’s efforts in his building enterprise. The trial judge found that the net value of the assets of the parties at the date of hearing was $3,706,217. In addition, she found that the parties had what she described as contingent assets, being their respective interests in two superannuation funds. [page 519] Although urged by the wife to do so, the trial judge did not include the parties’ interests in those funds in the value of the assets to be divided between the husband and wife. In addition, she found that the contribution made by the husband had the quality described in some authorities as ‘special’ or ‘extra’. The wife appealed. The Full Court allowed the appeal, finding, inter alia, the application of the skills of the husband, his ingenuity and enterprise produced assets in the medium range

rather than the high range. The trial judged erred in concluding that his contribution had the quality described in the authorities as ‘special’ or ‘extra’. The Full Court, comprised of Nicholson CJ, Ellis and Lindenmayer JJ, stated (at 640): In Ferraro [above] the court found that the total net value of the property of the parties was in round figures $12 million whilst in McLay [see (1996) 20 Fam LR 239; (1996) FLC ¶92-667] the total net value of the property was $8.83 million. In Marriage of Whiteley (1992) FLC ¶92-304, the trial judge, in considering the question of contribution, was conscious that because of his special skill as an artist, the husband had made by far the major contribution to the acquisition of assets valued at hearing at $11.32 million. In [this case], the application of the skills of the husband, his ingenuity and enterprise produced assets in the medium rather than the high range as in the three authorities we have referred to and, in our view, the trial judge erred in concluding that his contribution had the quality described in the authorities as special or extra or as she found as being extraordinary. Thus, although conscious of the finding of the trial judge, that ‘an analysis of the parties’ net worth and the facts between 1985 and separation reveal that the assets have been acquired largely through the husband’s efforts’, we are of the view that, in assessing the totality of the contributions of the parties, her Honour attached too much weight to the financial contributions of the husband and his efforts in the acquisition of the property. Further, the result of the trial judge’s order is that at the end of the marriage lasting 27 years, of which there were five children and in which both parties performed their allotted roles, the wife, who has the lesser earning

capacity, is left with 45% of the value of the assets … whilst the husband is left with 55% of those assets … That division is, in our judgement, outside the range of a reasonable exercise of the discretion vested in the trial judge. The Full Court concluded (at 641): Having regard to the findings of the trial judge and the evidence before her, this court is well able to substitute its own discretion for that of the trial judge. … We are therefore of the view that the just and equitable order, in the circumstances of this case, is one that achieves an equal division of the $4,271,090.

In JEL and DDF (2000) 28 Fam LR 1 at 34–5; (2001) FLC ¶93-075, the Full Court endorsed the concept of special contributions. In summing up, it stated: It seems to us that the following general principles can be said to arise from the cases referred to in these reasons, namely: (a) There is no presumption of equality of contribution or ‘partnership’.

[page 520] (b) There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife. (c) Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.

(d) In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them. (e) The court will recognise any such special factors as taking the contribution outside the ‘normal range’ in the sense that that phrase was understood by the Full Court in [Marriage of McLay (1996) 20 Fam LR 239; FLC ¶92-667]. (f) The determination of an issue of whether or not a ‘special’ or ‘extra’ contribution is made by a party to a marriage is not necessarily dependent upon the size of the asset pool or the ‘financial product’. When considering such an issue, care must be taken to recognise and distinguish a ‘windfall’ gain. (g) While decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles. (h) It is ultimately the exercise of the trial judge’s own discretion on the particular facts of the case that will regulate the outcome. (i) In the exercise of that discretion, the trial judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.

The Full Court has, in the most recent discussion of the notion of special contributions, largely stepped back from the notion. In Marriage of Figgins (2002) 29 Fam LR 544 at 557; FLC ¶93-122 Nicholson CJ and Buckley J said: The special contribution referred to in [Marriage of McLay (1996) 20 Fam LR 239; FLC ¶92-667] and other cases clearly refers to some special factor of skill or capacity that produces the result that there is a loading in favour of the party

providing it. In JEL and DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075 the majority of the Full Court said [at 29]: However, there are cases where the performance of those roles has what may be described as ‘special’ features about it either adding to or detracting from what may be described as the norm. For example, in relation to the homemaker role the evidence may demonstrate the carrying out of responsibilities well beyond the norm as, for example, where the homemaker has the responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or cases such as the care of a handicapped or special needs child. On the other hand, in the breadwinner role the facts may demonstrate an outstanding application of time and energy to producing income and the application of what some of the cases have referred to as ‘special skills’.

[page 521] 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. We think that the decision of the House of Lords in White v White [2001] 1 All ER 1 gives force to these concerns.

Further into the judgment, their Honours added (at 566): We reject the concept that there is something special about the role of the male breadwinner that means that he should achieve such a preferred position in relation to his female partner. To do so is to pay mere lip service to gender equality. Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other. We think that cases such as JEL and DDF, above, and the minority view of Guest J in Farmer and Bramley [(2000) 27 Fam LR 316; FLC ¶93-060] have missed this point and have led to an imbalance of gender considerations in arriving at results that unduly favour the male partner.

The debate as to the manner in which the ‘special skill’ of one party to an application under s 79 should be dealt with by the courts continues with a new set of judgments into what are referred to as ‘big money cases’. Recent cases indicate that property in excess of $10 million would be considered ‘big money cases’.

In Smith and Fields [2012] FamCA 510 Murphy J ordered that the matrimonial assets of the parties be distributed 60 per cent to the husband and 40 per cent to the wife in circumstances in which the parties had been married for 29 years, accumulated significant wealth and where the husband submitted that he had made a special contribution to those assets. The husband’s case was that, in recognition of his special contribution, he should receive 70 per cent of the pool. The net assets of the parties was $39,816,258. The wife’s case was that the marriage of 29 years was a partnership to which each party contributed in their respective

‘spheres’ and thus the pool should be divided equally (at [4]). Evidence was given on behalf of the wife of ill-health and infliction of considerable violence on her by the husband (at [70]– [71]). This aspect was largely ignored by the court. Instead, the business acumen of the husband received much attention (at [67]). [page 522] Murphy J discussed the High Court’s decision in Mallett and observed that each of the judges distinguished between contributions made to different types of property (at [8]). Murphy J went on to state (at [19]): [W]hile expressions such as ‘special skills’ or ‘special contributions’ might be convenient enough as descriptors designed to compare the contributions in one case with those in another, s 79 makes no such reference, nor embraces any such concept, save that it mandatorily requires an evaluation of the matters set out in s 79 in arriving at a settlement of property between the particular parties to the particular marriage in all of its particular circumstances. With express reference to the ‘marriage partnership’, Murphy J observed (at [21]) that it: … is convenient as a descriptor both of what is an axiomatic component of ‘marriage’ (footnote omitted) and of what earlier authority has recognised within the context of s 79. It is also convenient as a reminder that the parties to a marriage — in particular a long marriage — contribute to it (as s 79 specifically recognises) in a miscellany of different ways which, taken together, make up the union. It is also convenient as a reminder that non-direct or home-maker contributions are to be given

the real weight which authority demands. [footnotes omitted] His Honour said (at [26]): Whilst some assistance may be rendered by the use of expressions such as ‘special skills’ or ‘special’ or ‘extraordinary’ contribution, in my view, the use of such expressions is apt to mislead and to obscure, rather than illuminate, the task at hand. The real danger lies in the promulgation of a notion that, by establishing ‘special contribution’ or ‘special skills’ — whatever the expression, or the indicia comprising any such expression might be said to be — a result of a particular type, or a particular range, should follow. That is an improper fetter on an ‘extraordinarily wide’ discretion. It smacks of a presumption antithetical to what the section requires. In his Honour’s view a contribution by one party in the role of homemaker and parent and to the welfare of the family more generally that allows the other party to their union the physical and mental space to pursue income and capital generation is an often-neglected, yet extremely important contribution (at [63]). Murphy J specifically rejected the notion that one ‘sphere’ or ‘role’ should be seen as, of itself, more important, or more inherently ‘valuable’, than the other. After undertaking an analysis of the nature, form and characteristics of the contributions of varying types made by each of the parties, Murphy J found that it would be just and equitable for an assessment of those contributions to favour the husband. Murphy J then undertook a comparison with other cases and considered the real impact in dollar terms of making a contribution-based adjustment in favour of the husband. In so doing, Murphy J decided that a 20 per cent disparity, equalling a difference in the vicinity of $6.5 to $8 million, was appropriate in the circumstances of the case.

[page 523] The matter following involved high earnings by the husband but according to the judgment of Watts J this did not amount to a ‘special contribution’ to the marriage assets and his Honour placed great weight on the wife’s contributions of homemaker and parent.

In Newman and Newman [2013] FamCA 37 the husband argued that his high earnings throughout the 28-year marriage were contributions ‘outside the normal range’ and should therefore be treated as a ‘special’ contribution (at [114]). Watts J referred to the husband’s affidavit and concluded that the husband earned $11,591,970 between 1982 and 2010 which averaged out at $400,000 per annum. In declining to make an order in favour of the husband’s assertion, Watts J said (at [118]): Insofar as there is [such a thing as] a special contribution case, this is not one of them. It is true that the husband earned a level of income that was significantly more than average weekly earnings but he did so using skills which he had developed during the marriage, working in an industry which remunerated its experienced employees at levels far in excess of average weekly earnings. I infer the husband was able to develop these skills having been substantially freed by the wife from the primary role of homemaker and parent. Although it goes without saying, I repeat that in the context of this long marriage with children, the role of homemaker and parent ‘should be recognised not in a token way but in a substantial

way’ (Mallet v Mallet (1984) 156 CLR 605; Ferraro and Ferraro (1993) FLC ¶92-335).

In Kane and Kane [2013] FamCAFC 205 before Faulks DCJ, May and Johnston JJ the Full Court upheld an appeal by the wife against the orders of Austin J in relation to a large superannuation pool. The parties in this case had four children and had been married for almost 30 years. Their assets totalled $4.2 million, with $3.4 million of that amount held in a superannuation fund. During the course of the marriage, the husband had invested $539,500 of the couple’s superannuation in shares, a decision that was against the wife’s wishes. At the time of their divorce, those shares were worth $1.85 million. All other assets, which were approximately $800,000, were divided equally. But the superannuation fund posed a more difficult issue. At the initial hearing of the matter, Austin J awarded the husband two-thirds of the fund as a result of the husband’s ‘skill in selecting and pursuing the investment’. So, despite both parties contributing equally into the fund, the husband received a greater share of the assets due to his investment strategy. His Honour found that the increase in value bore no relationship to ordinary market force (at [63]). The wife appealed to the Full Court which found that the trial judge may have given ‘unacceptable weight’ to the husband’s ‘special skills’ and overturned the decision. The husband did not have any professional qualifications or special knowledge of the business in which he invested and had taken a calculated risk (at [105]). The Full Court (at [107]) cited with approval a decision of Murphy J in Smith and Fields [2012] FamCA 510 at [26]:

The real danger lies in the promulgation of a notion that, by establishing ‘special contribution’ or ‘special skills’ — whatever the expression, or the indicia comprising [page 524] any such expression might be said to be — a result of a particular type, or a particular range, should follow. That is an improper fetter on an ‘extraordinarily wide’ discretion. It smacks of a presumption antithetical to what the section requires. The Full Court considered the wording of s 79(4) thus (at [109]): [I]t should be observed that s 79(4) itself does not contain words like ‘special’ or ‘extraordinary’. No doubt in any particular case a judge might find that there is a contribution by one party (being financial or other than a financial contribution) which outweighs the others but it is essential that such conclusions reflect what the legislation demands. And further (at [110]): In this case, the trial judge made an error in attributing to the husband skills or acumen at a level which caused his Honour’s finding about contributions to be disproportionately in the husband’s favour. The matter was returned for a rehearing.

Whatever the impression to be taken from the matter just considered, it did not sound the death-knell for claims by a party of ‘special skill’, ‘special contribution’ or, as in the

matter following, claims of the husband having ‘skill-sets’ that enhanced the pool of assets.

The matter of Malphas and Grier [2013] FamCA 324 before Stevenson J generated several contentious issues which, although not new, came before the Full Court of the Family Court for yet a further airing. In particular, these issues related to ‘skillsets’, ‘add-backs’ and the value to the court of an ‘aidememoire’. The parties began a relationship in 1999 and married in 2002. At the date of the marriage neither party was in possession of significant assets. In the period 2003–2007, the financial picture changed for the parties. Houses were bought, renovated and sold with the result that considerable wealth was accumulated. The parties separated in April 2009 and an application was brought for a settlement of property under s 79 FLA. Stevenson J, as the judge at first instance, had to decide the proportion of the assets each party should receive. In making a decision her Honour was obliged to have regard to s 79(4) and, where applicable, the factors to be considered in s 75(2) of the FLA. There was one child of the marriage, a daughter who was born in 2007. Final parenting orders had been made for this child. Therefore, only a financial division between the parties was at issue. The husband, sought, without success, a 75 per cent/25 per cent split of the available assets. Nevertheless, the husband received the lion’s share in that Stevenson J divided the assets 60/40 in favour of the husband, on the basis that the contributions of the husband were greater than those of the wife. In doing so the trial judge accepted the argument by the counsel for the husband that his client was possessed of ‘skill-sets’ which were responsible for building up the matrimonial wealth

and was therefore the major financial contributor in the marriage. The wife [page 525] appealed the decision of Stevenson J to the Full Court of the Family Court arguing that Stevenson J had erred in her finding that the husband had made the greater contribution to the assets. In addition, the wife argued that her Honour failed to take into account the post-separation sums of money which the husband had received without explanation as to the manner of its use. Nor had Stevenson J considered whether the sums of money to which the husband had access should become an ‘add back’ to the pool of property to be divided. The wife’s appeal was heard in Grier and Malphas [2016] FamCAFC 84 before Bryant CJ, Murphy and Kent JJ who very thoroughly discussed each aspect of the decision of Stevenson J to the extent sought by the wife. In addition, Bryant CJ considered the taxation liabilities of each party. The wife was also appealing the receipt by the husband of $700,000 from the funds belonging to both parties following separation without satisfactory explanation. Counsel for the husband submitted that an appropriate contribution finding would be 75 per cent to his client and 25 per cent to the wife as at the date of trial. Counsel for the husband indicated at the conclusion of the trial that he made no ‘special skills’ submission. Instead, in a very thin disguise for, in effect, ‘special contribution’, counsel argued that his client was possessed of a ‘skill-set’ that largely generated the net pool of matrimonial property. This claim has arisen in different guises over the years. For example, the notion of ‘special contributions’, decried in many family law property cases of recent times, has in the present matter been replaced by counsel for the husband by

‘skill-set’. The implication is that the husband, because of his business acumen, has made a greater contribution than the wife. The second point to be addressed by the Full Court was whether the money received post-separation by the husband should be notionally added back to the pool of property available on the date of separation. The generally established rule is that those assets should be notionally added back to the pool (dubbed an ‘add-back’) and considered an asset that the party acquiring the benefit has already received. Bryant CJ went through each aspect of the appeal before her, beginning with ‘add-backs’ where her Honour stated: In relation to the assessment of net assets, including superannuation and disputed add backs the position contended for by the husband was that $4,729,729 was available for distribution between the parties. The wife’s position was that there was $6,396,626 available. Where only agreed upon add backs were considered, the husband’s position was that $3,860,292 was available and the wife’s position was that $3,862,592 was available. Thus, [the trial judge] was called upon to determine a number of balance sheet issues relating to add backs sought by the parties, but particularly by the wife. … apart from adding back the husband’s paid legal fees and disbursements of $200,300 and the wife’s paid legal fees and disbursements of $343,291, [the trial judge] did not add back other amounts as sought by the parties: at [31]–[33]. Bryant CJ continued (at [34]) by citing Mayne and Mayne [2011] FamCAFC 192; (2011) FLC ¶93-479 at [72]–[74] relating to addbacks, where it was stated: Parties seek funds be ‘added back’ and the rationale is that one party should not benefit from a premature

distribution of the assets. An obvious example is withdrawing [page 526] and using money from a bank account either joint or owned by one of the parties. It is also the case that the parties may decrease the pool by increasing liabilities. The issue in such cases is whether the liability should be a joint liability or a liability only of the party who created it. The application of the funds removed (or the debt incurred) may have been for a personal purpose (for example, to pay legal fees) or it may have been applied in the sustenance of a party or the children of the parties. If the former is the case this has generally found to be a pre-emptive unilateral division of property. If the latter is the case then the principles enunciated in Marker v Marker [[1998] FamCA 42] and Chorn NH & Hopkins RC [(2004) FLC ¶93-204] apply. If the money was, or part of the money, was used to meet reasonable living expenses then that money, or that part of the money, is not ‘added-back’ or regarded as a pre-emptive distribution. Her Honour cited the trial judge’s reason for not adding back funds (at [39]): I am of the view that both parties spent money freely and irresponsibly after their separation. It would be a formidable, and probably impossible, task to trace the fate of each dollar which came into their respective hands after the separation. As noted, there would be a substantial risk of double-counting in any event. In my

view the nature and pattern of post-separation expenditure by both parties also militates against the inclusion in the list of assets of most of the proposed add-backs. It is accepted that the application of the provisions of the FLA allow a great deal of discretion in the hands of the Family Court. Nevertheless, the findings of the Full Court provide immeasurably valuable guidance when considering a set of facts in preparation for an application before the court. In relation to the use of an aide-memoire to assist the court in a matter in which the facts are complicated, Bryant CJ was enthusiastic in seeing it as useful. Her Honour said (at [58]): [T]he point the wife now makes might have been clearer … had an aide memoire similar to the one counsel relied on in the appeal been provided [at trial], rather than the exercise being put as a construction of add backs into the balance sheet. Her Honour then turned her mind to claims of a special ‘skillset’, saying: Although counsel [at trial] used the term ‘skill set’ to differentiate it from special contribution, if it was intended to be anything other than a ‘special contribution’ by another name, then it has to be considered in a separate and distinct way: at [89]. Her Honour continued (at [86]–[87]): The line of authority relating to special contributions referred to by senior counsel for the husband includes Kane and Kane (2013) FLC ¶93-569, Hoffman and Hoffman (2014) FLC ¶93-591 and Fields and Smith (2015) FLC ¶93-638 … In Fields and Smith [above, at [43]], the Full Court said: If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been

made clear in the authorities referred and to the Full Court’s comments in [52] of Hoffman [above], that the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important that another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.

[page 527] Her Honour added (at [91]: To develop an argument ex post facto that a particular set of skills available at the outset of the marriage is the only or major cause of the parties’ later prosperity is to hypothesise a causal relationship which in most cases will be difficult to reconcile or prove. Murphy and Kent JJ also addressed several aspects of the appeal before them, beginning with a discussion of ‘skill-sets’. In a joint judgment, their Honours said (at [135]–[136]): The ‘skill set’ or ‘potential’ of ‘talent’ a party brings to the role or roles which the parties have determined each will undertake in the relationship is, for s 79’s purposes, relevant only to how those attributes manifest themselves in what s 79 says must be considered. It is not a party’s ‘skill set’ which must be considered, but their contributions. Contributions are the product of many things: talent, industry, selflessness and, indeed, luck, to name a few. It is the contributions (in all senses in which that expression is used in s 79) that fall for consideration and assessment, not the combination of factors that has created the capacity for the making of those contributions. Murphy and Kent JJ considered the question of the manner in which ‘add-backs’ and ‘waste’ should be dealt with by the court:

[T]he husband received some $700,000 more than the wife following separation and the use of that money is not satisfactorily explained. It was within discretion for her Honour to treat that as ‘waste’ and consequently add it back, just as it would have been within discretion for her Honour to treat that expenditure as a matter relevant to s 75(2)(o). We do not consider, with respect, that it was open to her Honour to do neither — or, at least, not without an analysis of the respective expenditure of the parties and the use to which the money was put and reasons why the differential sounded in neither: at [143].

The following matter yet again examined the issue of ‘addbacks’.

In Vass and Vass [2015] FamCAFC 51 before Strickland, Murphy and Tree JJ the husband appealed against property orders which effected a division of 65 per cent in favour of the wife. One of the grounds of appeal was that the trial judge erred by adding back $75,000. This sum included $50,000 that the husband paid to his parents post-separation, which he claimed was in repayment of a loan. The ground was ‘only faintly pressed’, so the Full Court dealt with it ‘very briefly’ (at [136]). In finding that the ground did not establish error, the Full Court made the following comments (at [138]–[139]) indicating that the practice of adding back is still acceptable post-Stanford: There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums

which have been dissipated by the parties. We reject any suggestion that the decision of Bevan and [page 528] Bevan (2013) FLC ¶93-545 — or, more particularly, the decision of the High Court in Stanford and Stanford [(2012) 247 CLR 108; [2012] HCA 52; (2012) FLC ¶93518] — is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to ‘notional property’ as have been referred to in decisions of this court and at first instance may need to be reconsidered. The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of ‘add back’, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.

Section 79(4)(d) — effect on earning capacity 8.85 Section 79(4)(d) of the FLA requires the court to take into account ‘the effect of any proposed order upon the earning capacity of either party’. Orders made under s 79, especially those that require the sale or transfer of incomeproducing property, such as a farm or business, may have a

profound effect on the earning capacity of one or both of the parties. The subsection does not require the court to refrain from making an order which has an effect on the earning capacity of either party; it merely requires that it should be taken into account. The main effect of subs (4)(d) is that in deciding what orders to make, the court should attempt to minimise any adverse effect on the earning capacity of a party. In this regard the court avoids, if possible, orders that require the sale of income-producing property, or orders requiring a party to give up his or her present employment. In many cases, the court will make an order that allows a party considerable choice as to how the final adjustment is to be decided.

The general principle was stated by the Full Court (Fogarty, Maxwell and Nygh JJ) in Marriage of Lee Steere (1985) 10 Fam LR 431 at 441–2; FLC ¶91-626: Section 79(4)(d) directs the court to consider the effect of any proposed order on the earning capacity of either party to the marriage. This is clearly a relevant consideration where the only or major asset available for division between the parties is the asset from which one of the parties derives his or her livelihood, whether it be a business, a professional practice or a farm. But it is not an absolute factor: it is one of several factors to be considered in arriving at an order which in all the circumstances is just and equitable: see s 79(2). An order which would deprive a party substantially of what he or she is entitled [to by] reason of contribution would not normally be considered just and equitable. Where there is one main income-producing item of property, such as a farm, the court may in effect have to choose between

preserving the income-producing asset and effecting a proper alteration of the parties’ assets. In such cases, the court must do the best it can in all the circumstances, having regard to both the appropriate alteration of the parties’ assets and to the consequences of making orders relating [page 529] to income-producing property. The problem is made more acute when the farm is also the matrimonial home. In this case, the Family Court said that para (d) is mainly relevant to the question of ways and means in which the entitlement of a party can be met, without causing the destruction of a business or other income-producing assets. Methods include: where possible making orders relating to non income-earning property, or for lump sum payments: Marriage of Hayne (1977) 3 Fam LN N25; FLC ¶90-265 (lump sums); Marriage of James (1978) 4 Fam LR 401; FLC ¶90-487 (lump sums); Talbot and Talbot (1979) 5 Fam LR 766; FLC ¶90-696; postponing the sale for a period of time: Marriage of Magas (1980) FLC ¶90-885. But the payment cannot be postponed for too long unless the amount earns interest or is expressed as a percentage on sale, and adequate arrangements are made for the support of the applicant and any child in the meantime: Marriage of Lee Steere (1985) 10 Fam LR 431 at 442; FLC ¶91-626.

See also Marriage of Way (1996) FLC ¶92-702, where the trial judge allowed the husband the opportunity to purchase a farm from the wife (a share of which would otherwise have gone to her in a property distribution), and made allowances

for the additional liabilities the husband would incur in making that purchase when assessing the s 75(2) factors.

Section 79(4)(e) — assessing s 75(2) factors 8.86 Section 79(4)(e) of the FLA requires the court to consider the matters referred to in s 75(2) so far as they are relevant. The 19 paragraphs of s 75(2) refer to a wide range of matters, broadly speaking, having to do with the present and anticipated needs and resources of the parties. In making its decision, the court must distinguish between the contributions under s 79 and the s 75(2) factors. Failure to do so will constitute a miscarriage of judicial discretion: Marriage of Horsley (1991) 14 Fam LR 550; FLC ¶92-205. 8.87 The cross-reference to s 75(2) requires the court to look not only at the parties’ contributions under s 79(4), but also at their needs and resources. These matters are also to be taken into account in applications for spousal maintenance. It is, however, important to distinguish between maintenance orders and the matters listed in s 75(2). Even though it is not unusual to hear the s 75(2) factors referred to as the ‘maintenance component’ of a property settlement obtained under s 79, this is not strictly correct. Although in the context of s 75 alone these provisions are concerned simply with spousal maintenance, when incorporated into s 79(4) by para (e) they have the function of allowing the court to bring into account matters relating to the current and future economic position of the parties, and therefore to their present and future financial needs. It is important to understand that, in the context of a

property settlement, a person who does not have a ‘need’ in the sense [page 530] of being unable to support himself or herself adequately within the meaning of s 72 may nevertheless obtain a s 79 order which is enlarged by reference to s 75(2) factors. As the s 75(2) factors have been covered in some detail (see Chapter 7), it is proposed to here discuss the s 75(2) factors only as they relate to the entitlement to superannuation of a party. In the matter following the future needs of the husband were complicated by his ill health and whether he had a short life expectancy.

Fontana and Fontana [2016] FamCAFC 11 concerned an appeal before Strickland, Murphy and Watts JJ in which the appellant husband challenged the findings and reasoning of Collier J in making a property settlement of the matrimonial assets of the husband and wife arising from the orders of the trial judge in the matter of Fontana and Fontana [2013] FamCA 548. The wife opposed the appeal. The orders made by Collier J against which the husband appealed allowed a split of 56.4 per cent to the wife (inclusive of superannuation) and 43.6 per cent to the husband. The husband’s appeal focused on the trial judge’s treatment of the s 75(2) factors which created a difference in the value of the assets received by the parties of $155,400. Ultimately, however, the Full Court condensed the 17 grounds of appeal into one when they said (at [17]):

As argued orally before us, however, the husband’s complaint evolved into an assertion that his Honour erred in law in taking into account the husband’s life expectancy when no finding made by his Honour justified him doing so. The husband was in ill health with renal failure and diabetes whereby he was dependent upon dialysis several times a week. He was in receipt of payments of $12,500/month under his income protection insurance. The wife was a successful businesswoman with a net income in excess of $200,000. There was one child of the marriage who was 15 years old, who was primarily being cared for by the wife but who was due to become a school boarder, with the parties to split weekends and holiday times. Although it may seem unfortunate, the fact of the husband’s serious illness was open to discussion. At trial Collier J (at [523]–[525]) discussed the husband’s life expectancy: It is, on the material that I have read, clear that if the husband does not obtain a successful transplant, then his life expectancy will be very considerably shortened. I am unable, on the material available to me, to put any realistic figure on his life expectancy from this point. If he obtains a transplant, which is successful, then his life expectancy would be at least doubled. … unless the husband manages his diabetes properly, and regardless of what occurs in respect of his kidney difficulties, his life will be substantially shortened. I am satisfied on what I have read that if the husband does manage his medical conditions satisfactorily, that is by dealing with his diabetes and undergoing dialysis on a regular basis, he will be in a position to enjoy a reasonable quality of life. I am unable, however, to make an educated guess, let alone a finding, of what his life expectancy will be in this situation.

In the event of a successful transplant, and again conditional upon him managing his diabetes, his quality of life must improve. Once again, I can make no finding as to how [page 531] long he is likely to live, except to say it will be longer, by a significant margin, than if he does not receive a transplant. And further (at [544]): I am satisfied that the husband’s needs, whether he has a transplant or not, are likely to subsist for a shorter time than are the wife’s needs. With some regret, this is a matter that I must take into account in the wife’s favour. The wife, I am satisfied, whether or not the child attends boarding school, will be the parent principally responsible for his welfare. I am satisfied that the wife will be the parent providing more and more for the ongoing needs of the child as the husband’s health, unfortunately, deteriorates. I am satisfied that an adjustment is required, in these circumstances, in the wife’s favour. I am satisfied that the wife should receive an additional 4.5 per cent of the asset pool in this regard. The health of the husband was not the only issue to play a role in the findings of Collier J. Many times in the trial the question of disclosure, or rather lack of it, by the husband arose. His Honour stated (at [489]): I am satisfied that the husband, whether deliberately or because of neglect and indifference, did not make a full and proper disclosure of his financial affairs at the time of the first and second parts of the hearing. Whilst I

would endeavour to make an appropriate allowance for the husband’s illness at the time he first gave evidence, I am still left with the clear impression that he chose to be less than forthcoming in respect of his affairs. The Full Court (at [28]–[29]) referred to the contradictory finding with regard to the illness and life expectancy of the husband: As indicated above, his Honour made a 4.5 per cent adjustment to the non-superannuation assets in the wife’s favour for s 75(2) considerations. His Honour, having made the findings which he did about the husband’s life expectancy (at [523]–[525]), made an error in taking the husband’s life expectancy into account in the way that he did in [544]. Given the content and position of [544] in the judgment, we conclude that his Honour considered the husband’s life expectancy a relevantly important matter in making the prospective adjustment. That adjustment is ultimately reflected in the trial judge’s property settlement order. Accordingly we find merit in the husband’s second ground of appeal and the appeal is allowed. In allowing the appeal the Full Court made the following orders, inter alia: (1) The appeal be allowed. (2) The orders made by Collier J on 23 July 2013 be set aside. (3) The matter be remitted for rehearing by a Judge of the Family Court of Australia.

Section 75(2) factors — financial resources 8.88

One very important aspect of s 75(2) of the FLA in

property cases is that it allows the court to have regard to the ‘financial resources’ of the parties: s 75(2)(b). This phrase has been widely defined. It includes expectations that fall outside the definition of property, such as expectations arising under a discretionary trust or a superannuation scheme. Although s 79 limits the court to making orders about property, in doing so the court may have regard to things that are not property. [page 532] In cases where distribution based on contributions alone would lead to a wide disparity of property received, it may be relevant to consider the length of the marriage and the standard of living enjoyed by the parties during the marriage.

In Marriage of Dickson (1999) 24 Fam LR 460; FLC ¶92-843, the Full Court held that after a long marriage (26 years), where both parties were towards the end of their working lives, a trial judge had been wrong to distribute the available assets on the basis of contributions alone. In this case, the wife was left with three times as much capital as the husband. The Full Court readjusted the shares to 70 per cent to the wife and 30 per cent to the husband on the basis of the s 75(2) factors. It was decided by the court that the failure by the trial judge to make any adjustment for the s 75(2) factors was an appealable error. The disparity of the financial position of the parties once allocations had been made for contributions, considered together with prospective matters, including the age of the parties and the standard of living that in all the circumstances was reasonable, demanded a further adjustment (at 460).

Importance of superannuation in a division of matrimonial property — historically and currently 8.89 In many applications under s 79 of the FLA, superannuation entitlements and expectations form a considerable part of the financial resources of the parties. Historically, superannuation was not usually regarded as property, except in some limited circumstances, and was therefore not available for distribution under s 79. This did not mean, however, that it was irrelevant to the exercise of the discretion of the court — quite the contrary, in fact. Section 75(2)(f) specifically requires the court to consider superannuation and other financial entitlements. Such entitlements also fall within other paragraphs of s 75(2), notably (b) (‘financial resources’) and (o) (‘any fact or circumstance’).

In Marriage of Hauff (1986) 10 Fam LR 1076 at 1078; FLC ¶91747, Fogarty and Murray JJ said that the relevance of superannuation in most proceedings is that it represents a form of saving by the parties during the course of their marriage to which each of them is treated as having made either a direct or indirect contribution, and ordinarily it is not necessary for the non-contributor to establish actual need in order to benefit. Contributions by one spouse to superannuation usually means the loss of moneys available for the current support of the family in order to provide security for both spouses on the retirement of the contributing spouse: see also Marriage of Bailey (1978) 4 Fam LR 86; FLC ¶91-424 and Marriage of Hickey (2003) 30 Fam LR 355; FLC ¶93-143 which gives an excellent example of the application of the amended superannuation provisions of the

FLA by the Family Court. Contrast Hickey with some of the findings in Marriage of Coghlan (2005) 33 Fam LR 414; FLC ¶93220; [2005] FamCA 429.

[page 533] 8.90 As previously stated, it is clear that by virtue of s 79(4) (e) of the FLA, the court has always had the power to take into account prospective superannuation benefits in proceedings under s 79. The benefits may be taken into account as: a financial resource under s 75(2)(b); a future entitlement to a pension, allowance or benefit under s 75(2)(f); or a fact or circumstance which the justice of the case requires to be taken into account under s 75(2)(o). Valuation of superannuation 8.91 Valuing superannuation has become easier since the introduction of superannuation splitting legislation. Various methods are set out to value superannuation held in superannuation funds. Parties can obtain valuations by serving on the trustee of a superannuation the prescribed form 6 Superannuation Information Kit of the family law courts. Self-managed superannuation funds are generally valued by an expert in the field. Approaches by the court when dealing with entitlements to

superannuation 8.92 Since its inception, the court has adopted a number of different approaches, whether dealing with superannuation as property or as a financial resource within s 75(2) of the FLA.

In Marriage of Harrison (1996) 20 Fam LR 322; FLC ¶92-682, the Full Court of the Family Court (Ellis, Baker and Warnick JJ) considered some of the early cases and the methods used in reaching a decision as to the manner in which an entitlement to superannuation should be dealt with. In considering the merits of the various approaches, their Honours stated (at 325): It must first be said that in most cases a spouse’s entitlement to superannuation is not property and therefore is not capable of any order under the provisions of s 79. See In the Marriage of Crapp (1979) 5 Fam LR 47; FLC ¶90-615; In the Marriage of Coulter (1989) 13 Fam LR 421; (1990) FLC ¶92-104; In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92-601. The various attempts which trial judges, in their ingenuity, have made to take superannuation entitlements into account by reference to precise mathematical calculations, although perhaps desirable from a practical point of view, nevertheless do not enable or entitle them to include such sums as part of the property of the parties, however calculated. It follows … that in most cases the proper approach to be taken by trial judges, when dealing with a party’s entitlement to superannuation in proceedings for alteration of property interests pursuant to the provisions of s 79 of the Family Law Act, is to adjourn the proceedings under s 79(5) with or without the making of

any order under s 79(6) or, in the alternative, to treat the superannuation entitlement as a resource, pursuant to the provisions of s 75(2)(f) or (j). Section 75(2)(f) provides that the court shall take into account the eligibility of either of the parties for a pension, any superannuation fund or scheme whether the fund or scheme was established or operates within or outside Australia. Section 75(2)(j) requires the court to take into account the extent to which a party whose maintenance is under consideration has contributed to the income earning capacity, property and financial resources of the other party.

[page 534]

In Semperton and Semperton [2012] FamCAFC 132 the husband (aged 59) and the wife (aged 56) had been in a relationship for 38 years. The parties had two adult children who lived independently. Throughout the relationship the husband had been the primary income earner, with the last 25 years in the Australian Army. The wife had worked full-time and part-time at various stages but ceased work full-time in 1995. The nonsuperannuation pool consisted of $822,467: the wife had $8,466 in superannuation and the husband $157,686 in a superannuation fund and a further $354,098 in the Defence Forces Retirement and Death Benefits pension (DFRDB). At the time of the hearing the husband was earning $2,366 per week, and also received $353 per week from the DFRDB and another $39 per week for disability payments. The wife, on the other hand, received a Centrelink pension of $348 per week. In the first instance this matter was heard by Baumann FM (as his

Honour then was) who found equal contributions with a small adjustment to the husband based on pre- and post-relationship contributions to superannuation. On s 75(2) adjustments his Honour made a 10 per cent adjustment in favour of the wife. The husband successfully appealed to the Full Court consisting of May, Thackray and Ryan JJ on the following two grounds: 1.

His Honour erred in considering the DFRDB pension as a relevant factor for s 75(2) and then treating it as a capital sum when adjusting interests, in effect ‘double dipping’ (at [40]). In respect of this ground, the Full Court said (at [145]): It should be noted at the outset that a court is expressly authorised by s 75(2)(b) to take into account the ‘property and financial resources’ of both parties in deciding whether to make an adjustment to the outcome suggested by the assessment of contributions. It is therefore not improper for reference to be made, at the s 75(2) adjustment stage, to property that has been included in the pool for the purposes of determining contribution entitlements.

The Full Court said (at [146]): This would, however, usually be relevant only in the following circumstances: to highlight a significant discrepancy between the value of assets to be retained by each of the parties which calls for some further adjustment (eg Dickson and Dickson [1999] FamCA 278; (1999) FLC ¶92-843), which is not the case here where contributions were considered almost equal; to show that the extent of the assets to be retained by each party following assessment of contributions is such that there is no warrant for further adjustment (eg Albany and Albany (1980) FLC ¶90-905); or that a

further adjustment is required (eg Dench and Dench (1978) FLC ¶90-469); or where the nature of the property to be retained by one of the parties has a quality about it which is not accurately reflected in the value ascribed (eg Best v Best (1993) FLC ¶92-418). Further, the Full Court said (at [150]–[151]): We recognise that the approach the Federal Magistrate adopted is precisely the same as that adopted in Hayton and Bendle [2010] FamCA 592; (2010) 43 Fam LR 602. In that case, Murphy J stressed the importance of not double counting a pension entitlement which had been included in the pool of assets, but nevertheless saw it as assuming some relevance in the s 75(2) adjustment. However, the judicial pension Murphy J was considering in Hayton and Bendle was of a far greater magnitude than the husband’s modest entitlement here. We do not read [page 535] Murphy J’s judgment as supporting the proposition that every income stream can legitimately impact on the s 75(2) adjustment in circumstances where it has already been included in the asset pool. 2.

His Honour erred in failing to properly take into account the practical effect of the orders and that they were not just and equitable.

The Full Court did not re-determine the matter in the appeal as the taxation implications relating to the DFRDB pension had not been put in evidence by either party. In respect of

superannuation it is not only the valuation that is important but also the practical implications in respect of income and taxation. The matter was returned to the Federal Magistrates Court (now Federal Circuit Court) for a rehearing.

In the following case the superannuation of the husband and wife was in a self-managed fund controlled by the husband. Without the knowledge of the wife the husband failed to comply with the relevant legislation regulating such funds.

In Gabbard and Gabbard [2010] FMCAfam 1486 due to the husband’s improper dealing with moneys in the parties’ selfmanaged super fund, Henderson FM made orders that upon the wife’s request the husband sign all documents as may be required to delegate to the wife all the powers of the trustee of the super fund pursuant to the deed creating the fund; and that the wife then cause an account, audit and annual returns to be prepared and use her best endeavours to have the fund become compliant with the Superannuation Industry (Supervision) Regulations and ‘Taxation Act’. It was ordered that the splitting order made by the court be implemented upon the fund becoming compliant. His Honour ordered (at [189]): (10) Upon the [Mr Gabbard] Superannuation Fund becoming compliant, then pursuant to section 90MT of the Family Law Act a splittable payment of the funds of the [Mr Gabbard] Superannuation Fund is ordered to take place and the Trustee or its delegate is ordered to split the funds as follows: (a) The sum of $116,753 to the husband; and (b) The sum of $51,053 to the wife.

The parties were not represented at this hearing but the wife’s state of preparedness found favour with Henderson FM, who said (at [2]–[3]): The wife’s level of preparedness for the hearing, her compliance in a timely fashion with Orders and directions of the court, disclosure of all financial matters and understanding of ss 79 and 75(2) of the Family Law Act were of the highest level. Her matter was one of the most thoroughly and relevantly prepared cases I have heard. On the other hand, the husband’s lack of candour in disclosing his financial position to the wife and court in a timely and thorough fashion, failure to file updating material as directed by the court on many occasions, failure to produce documents pursuant to a notice to produce issued upon him by the wife, and when directed to produce documents by the court during the hearing then producing, to use his words, ‘what he thought the Court wanted’, was in stark contrast to the wife’s thorough, comprehensive and honest accounting of the parties’ financial history and present day circumstances.

[page 536] The following case relates to an application under s 79 of the FLA and a decision by Murphy J that the pool of property for settlement was comprised of two quite distinct pools. One pool was made up of the husband’s prospective judicial pension while the second group fell into real and personal property and other superannuation interests of the parties.

In Hayton and Bendle (2010) 43 Fam LR 602; [2010] FamCA 592 a judge and his wife had been married 22 years and had one adult son with special medical needs who had been living with the wife since separation. The asset pool comprised a judicial pension valued at $2 million and property and non-pension superannuation totalling $2.3 million (almost half of which was non-pension superannuation accrued during the marriage). The wife sought no splitting order in respect of the husband’s pension as she could receive no benefit of any split interest until the husband satisfied a vesting event. Being eight years older than the husband, who intended working until he was 72 (when he must retire), her receipt of ‘her entitlement would be postponed until she was 80’ (at 617). Murphy J said (at 618): But, the husband’s ‘superannuation interest’ is extremely valuable … How can orders which are just and equitable give, in the absence of a splitting order, recognition of this very considerable ‘value’ while at the same time, not doing an injustice to the pension’s recipient whose receipt of any benefit is postponed to (at the earliest) a mandatory future point and who, in any event, can never receive any part of the benefit as a lump sum? Murphy J summarised the court’s approach to the pension in this way (at 623): The characteristics of the pension — which see it as starkly different from, say, the cash proceeds from the sale of the former matrimonial home — need to be taken into account within the broad-based discretion provided for by s 79 [of the FLA] in general and the assessment of contributions in particular (difficult though that may be). That approach is, in my view, consistent with treating the pension (and, indeed, the other superannuation

interests) ‘as property’ as the FLA demands whether that expression is interpreted as the Full Court in Hickey [(2003) 30 Fam LR 355; FLC ¶93-143] would have it, or as the majority in Coghlan [(2005) 33 Fam LR 414; FLC ¶93-220; [2005] FamCA 429] views it. It was agreed that the non-pension superannuation ‘remain with, or be split to, the wife’, Murphy J saying (at 627): The wife has accessed superannuation in the past and can do so in the future. The superannuation was accumulated (and, in part, used) during a lengthy marriage. … I see no difficulty or potential for injustice or inequity … in assessing contributions across the whole of the ‘non-pension pool’ notwithstanding that both property and superannuation interests are included within it. Contributions to the non-pension pool were assessed as equal (about $1.17 million each). As to respective contributions to the judicial pension, Murphy J said (at 631): Here, the husband’s entitlement to a future pension commenced with his appointment to the court, about two years before the parties separated and the entitlement was [page 537] transferable upon the husband’s appointment elevation about two years after the parties separated and after the parties divorced. Here … I do not consider that the husband alone has contributed to the prospective pension. Nor do I

consider that either parties’ contributions commenced at the time of the husband’s appointment. His Honour continued (at 632): While the wife should, in my view, be seen to have contributed significantly to a marriage partnership in such a way as to permit of the husband being in a position to acquire the position of judicial officer and, thus, the pension, the accumulation of the ‘value’ of the pension must, in my view, be seen to overwhelmingly favour the husband. This conclusion is arrived at for a number of reasons. First, the nature of the contributions of the parties can be seen to have undergone a very significant change upon separation — it being the point when the partnership ceased and the beginning of a division in the parties’ lives, including their financial lives. Second, the husband’s day to day efforts — in a position shared by very few other people — is the single most important factor not only in the accumulation of ‘value’ over time, but to the continued existence of the interest; if the husband was to retire tomorrow, the prospective pension would have no value (in stark contrast, it might be remarked, to contributory superannuation schemes). This … is a powerfully important factor in assessing the respective contributions to this part of the divisible ‘pool’. Third, the fact that the wife can, by reason of Pt VIIIB of the FLA, share now in anything must assume that the prospective pension will continue to exist. It must do so because if the husband was to retire from the Bench (other than by reason of permanent disability), at any time before serving for 10 years, the ‘value’ of the pension would be nil. Thus, the wife’s entitlement now is

in fact dependant [sic] on the husband’s continued day to day efforts for a period spanning a minimum of more than eight years post-separation. I consider this, too, to be a powerfully important factor in assessing contributions. The peculiar nature of the interest must be recognised, but, in my view, taken up, in other ways. For example, the wife will receive, as a result of any ordered entitlement to the ‘pension pool’, property in the form of cash, realisable and useable now as a lump sum. The husband will never receive that; even when entitled, he must receive any benefit as a pension. I propose to take up those matters (also directly relevant to the nature form and characteristics of the prospective pension) when consideration is given to s 79(4)(e) and the justice and equity of the proposed orders. Doing the best I can, I assess the respective contributions of the parties to the prospective pension in the proportion 85% to the husband and 15% to the wife. Expressed in dollar terms, this equates to the wife receiving $302,000, say $300,000. Section 75(2) factors included a disparity of income (the husband’s, to continue to age 72, being seven times that of the wife); the ‘very low’ prospect of the wife being able to return to full-time work (having been made redundant in 2005); the fact that she ‘will meet significant legal fees from her property settlement’; her age (being 62, eight years older than the husband); both parties needing to rehouse; and the wife’s moral duty to house their adult son for another year and contribute to the cost of his special needs (at 634). Murphy J said (at 636): Authority [eg Marriage of Clauson (1995) FLC ¶92-595 at

81,911] demands that consideration be given to ‘the real impact’ of any such adjustment in dollar terms … [page 538] [A]djustments, traditionally expressed as percentages, are productive of a disparity between the two parties and [its expression in dollar terms] gives a better understanding of the real impact of any such adjustment. An adjustment was made to the wife of $300,000, giving her property to the value of $1.77 million, the husband to receive property worth $570,000 and his judicial pension, a result considered just and equitable. The wife was also awarded spousal maintenance of $500 per week for 18 months.

8.93 Confusion continues as to methodology of division and breadth of judicial discretion when dealing with superannuation. It was thought that the principles in Marriage of Hickey (2003) 30 Fam LR 355; FLC ¶93-143 would provide a relatively safe pathway to be followed by the court, and legal practitioners, when giving advice to their clients. Notions of certainty were an illusion. Nevertheless, a helpful and valid summary of the legislation is to be found in Hickey. As an illustration of the continuing difficulties inherent in the division of superannuation, some of the principles in Hickey must now be treated with caution. This is in the light of the five-member bench decision in Marriage of Coghlan.

Marriage of Coghlan (2005) 33 Fam LR 414; FLC ¶93-220; [2005] FamCA 429 arose as an appeal by the wife against orders for property settlement made by Rose J, at first instance, who had divided the net property totalling $590,208 (excluding superannuation entitlements) in the proportions of 60/40 in favour of the wife with no adjustment on account of the matters contained in s 75(2) of the FLA. The superannuation entitlements, as found by Rose J, were of a substantial amount relative to the pool of property. No splitting order was made or sought at trial in relation to the superannuation of the parties. His Honour excluded the superannuation entitlements from the pool of ‘property’ available for division and left them effectively where they lay. On appeal, several questions arose in relation to the judgment of Rose J. The questions to be answered by the specially constituted five-member bench of the Full Court of the Family Court were: 1.

whether the trial judge erred in failing to take into account the superannuation entitlements of the parties in determining the pool of property;

2.

whether the trial judge failed to give proper weight to those entitlements; and

3.

whether the result under the trial judge’s orders were consequently plainly wrong and manifestly unjust.

The Full Court also engaged in a lengthy discussion of the interpretation of the relevant provisions of Pt VIIIB of the FLA in proceedings under s 79 involving superannuation interests, including proceedings where no splitting order in relation to superannuation interest is sought by either party. [page 539]

The Full Court in Hickey held that, in circumstances where ‘an adjustment is made to other property having regard to the value of the superannuation interest’ but no splitting order is sought or made, there is no order ‘in relation to a superannuation interest’ (at [89]) within the meaning of s 90MT and, therefore, no requirement to value pursuant to the statutorily-mandated methodology. In Coghlan, the majority agreed with the Full Court in Hickey that ‘there is no requirement on parties to obtain a valuation in accordance with the Regulations (at least if no splitting order is sought at the outset of the trial)’: at [60]. Two important considerations, however, need to be noted. First, any s 79 orders made by a court (including where no splitting order is sought) must be just and equitable. There must be a basis upon which a court (even in a consent situation) can arrive at that conclusion. Accordingly, it is necessary for parties to identify the superannuation interests and state their agreed ‘value’. Second, although the parties themselves may not seek a splitting order, it may ‘become clear to the court — that the only just and equitable order which can be made in the particular case is a splitting order’: Coghlan, at [59]. In those circumstances, s 90MT will apply and there will be a requirement for the statutorily-mandated valuation to be available to the court. Accordingly, in circumstances where a splitting order is neither agreed nor sought by the parties, it may be necessary, as the majority in Coghlan recognised (at [59]), for a court to: … afford the parties an opportunity to be heard in relation to such an order with the requisite notice being given to any trustees of the superannuation fund and a formal valuation according to the regulations, if necessary, obtained. It would seem to follow, then, that admissible evidence should be available at every trial as to the amount of the interest arrived

at via that method and for the trustee to be given notice of the proceedings ahead of that possible eventuality.

The matter following, at least from a cynical viewpoint, would encourage separated parties (especially high income earners) to settle financial matters between them with alacrity.

Trask and Westlake [2015] FamCAFC 160 before Thackray, Ryan and Murphy JJ concerned an appeal from a judgment of Aldridge J delivered in Westlake and Trask (No 2) [2013] FamCA 928 in which his Honour found the contributions between the husband and wife to be equal. Some four years after the parties separated in February 2009, Aldridge J made orders for settlement of property. The husband appealed those orders. The parties had then been married for about 11 years and had lived together for about 13 years. They had four children who were aged approximately 15, 13, 11 and nine at separation. The issues in this appeal devolved, in varying forms, from events that occurred in the relatively lengthy period between the parties’ separation and the trial. [page 540] During the relationship the wife had been the traditional homemaker and primary carer of all four children, while the husband had successfully pursued his corporate ambitions and was the sole income earner for the family. In the intervening period between separation and trial, the

husband, who was a corporate ‘high-flier’, earned taxable income — which included a large redundancy pay-out — of approximately $9 million, which was in fact some $2 million more than the totality of the net marital assets at separation. Based on his overwhelming post-separation contributions, the husband argued at trial that he should receive a larger percentage of the asset pool. Neither the husband nor the wife was employed at the time of trial, but the husband had considerable prospects of returning to the workforce on a very high salary. As expected, the trial judge held that after a 13-year relationship and having had four children together, the parties’ financial, nonfinancial, domestic and ‘family welfare’ contributions should be considered as equal. The trial judge, however, went on to find that due to the massive disparity in income-earning capacities between the parties, the wife should be awarded a 10 per cent ‘future needs’ adjustment on an asset pool which, at the time of trial, exceeded $7 million. This gave the wife a 60 per cent distribution overall, or $4.2 million. The husband appealed on the following grounds: The total income he earned in the four years between separation and trial significantly exceeded the extent of the parties’ actual assets as existed at separation. The trial judge made an error in assessing the parties’ postseparation contributions to the assets as equal. Specifically, the husband argued that his own post-separation financial contributions in earning around $9 million should be given greater weight than the wife’s homemaker and parenting roles over the same period. In dismissing the husband’s appeal, the Full Court considered that although the husband had been extremely successful through a combination of his skill, knowledge and determination, his earning capacity was not achieved in a vacuum and it had

continued to be assisted and promoted by the wife’s domestic and parenting contributions since separation. Further, his capacity to earn a high income had been enhanced and fully supported by the wife, who had made significant indirect contributions towards his success by over the years relocating throughout Australia and internationally, and caring (often exclusively) for the children so that he could divert his time and energy to his career. The Full Court held that the trial judge had quite appropriately ‘recognised that the wife’s post-separation contributions did not cease upon separation but, rather, continued in circumstances made more difficult by the fact of separation’ (at [14]). The Full Court refused to consider the wife’s ongoing parenting and domestic contributions made after separation as being less valuable than the husband’s $9 million earnings over the same time. While it was easy to identify and assess the husband’s direct financial contributions after separation, and despite the wife’s homemaker/parenting contributions being ‘much less tangible’, the Full Court held that ‘[t]he lack of tangible recognition, or the [page 541] fact that they are not susceptible to a dollar calculation, does not render them less important’ (at [15]). The Full Court also considered that the wife had made a substantial contribution to the husband’s retrenchment pay-out, notwithstanding that it was with a completely different company and had been both accrued and received after separation. The Full Court fully upheld the original decision to award the wife 60 per cent of the $7 million asset pool, stating: ‘We can see no error in his Honour’s assessment. The challenge to his Honour’s contributions assessment fails’ (at [18]).

In a sentence, however, which may have caused more than frustration to the husband, it was stated: ‘This court, or any one of us, may have reached a different conclusion if charged as a trial judge with assessing those contributions. But, of course, that is insufficient to establish appealable error’ (at [17]).

Superannuation as property 8.94 In Pt VIIIB of the FLA s 90MC(1) provides that ‘[a] superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in [FLA] s 4’. In Marriage of Hickey (2003) 30 Fam LR 355; FLC ¶93-143, the Full Court held that the expression ‘treated as property’ should be understood as meaning ‘treated as if it were property even though it is not’ (at [75]) and that it should be so treated for the purposes of s 79. A differently constituted Full Court in Coghlan (above) held, by majority, that superannuation interests are not ‘synonymous with property for the purposes of proceedings under s 79’ but, rather, are ‘another species of asset which is different from property as defined in s 4(1)’: at [40]. As to what exactly that different species of property might be, the Full Court did not elaborate. Accordingly, that later Full Court held that superannuation interests are not ‘to be treated as property in proceedings under s 79 (irrespective of whether or not an order under Pt VIIIB is sought in those proceedings)’. The majority, referring to the principle in Nguyen v Nguyen (1990) 169 CLR 245, specifically departed from the earlier decision in Hickey. There were strong dissenting judgments from O’Ryan J (at [120]–[172]) and Warnick J (at [75]–[119]). In s 79

proceedings, the court may make orders ‘in relation to the superannuation interests of the spouses’: s 90MS. The process, however, for dealing with both superannuation interests and property remains governed by s 79. Significantly, neither s 79 nor s 75(2) has been amended. See also Balzia and Balzia [2009] FamCA 679.

In Panagakos and Panagakos [2013] FamCA 463 Loughnan J considered a property adjustment application in respect of a marriage of nearly 18 years where the husband initially contributed real estate worth $430,000 (net) and the wife initially contributed a real estate interest worth $315,000. The husband was employed ‘with the public [page 542] service throughout the marriage’ (at [138]) while the wife since the marriage had ‘mainly worked on her own account … in a personal services business’ (at [139]). The husband was 52, the wife 47 and there were two children of the marriage aged 19 and 16. The non-superannuation asset pool was $1,448,451.56. Loughnan J said (at [140]–[141]): The parties lived with the husband’s parents for nearly 14 years, rent free and without the cost of utilities. They had use of the husband’s father’s car at no cost. Lest it be suggested that there was any meaningful compensating benefit to the husband’s parents by this exercise, there is no evidence that the expenditure by the parties of $25,000 to establish the kitchen and selfcontained features of the parents’ T Street property

provided any such benefit to Mr and Ms Panagakos senior. … The contribution made by the husband’s parents represents a very substantial indirect, financial contribution made on behalf of the husband. His Honour continued (at [144]): The husband made a substantially greater financial contribution than the wife. It was greater in that he brought substantially more assets into the marriage than the wife and was in paid employment throughout the marriage, whereas the wife was not. … A significant additional indirect contribution was made on the husband’s side of the ledger by his parents. And further (at [169]): The non-financial contributions were equal, if not favouring the husband. The wife made the greater contribution as parent and homemaker. Loughnan J added (at [173]): I find that the contributions of the husband and on his behalf exceed those of the wife. The husband puts the difference at 55 per cent by him and on his behalf compared to 45 per cent by the wife. In my view that would be a proper finding. As to the husband’s defined benefit superannuation interest, his Honour found that interest to be worth $800,233 and said (at [163]): The husband’s superannuation interest stood at $47,538 as at the date of the marriage. As explained by the expert, Mr K, a component of the husband’s retirement benefit, the indexed pension, is not a function of contributions. In fact no contributions are made to that component. It is a benefit, if the husband qualifies by

meeting the terms of the fund, funded from consolidated revenue and quantified by reference to the husband’s years of membership of the fund and his final salary. Thus the interest is, more than is usually the case, an incident of the husband’s employment. His Honour said (at [174]): These are not mathematical calculations but the parties were together for about 17 of the 28 years of [the husband’s] contributory service. There is not the opportunity for non-financial contributions to superannuation. The husband’s interest was largely an incident of his employment. A proper apportionment of contribution has the husband making about twice the contribution of the wife. The wife has her own modest fund. I find that the contributions to superannuation were made in the proportions 65 per cent by the husband and 35 per cent by the wife. Loughnan J then considered s 75(2) factors, saying (at [217]– [220]): The wife works from home and that will have an impact on her need for housing; … it is likely that the husband’s income and earning capacity are greater than those of the [page 543] wife. The husband continues to have the benefit of his parents’ accommodation; … [t]he main responsibility for [the 16-year-old child] will continue with the wife; [a]lbeit that [the wife] has less than 12 months to go, [she] is still studying; [t]he wife is five years younger than the husband; [t]he wife has had the use of the main physical asset of the parties since April 2011, to the exclusion of

the husband; [t]he husband contributed to the wife’s upcoming qualification. There are factors favouring each of the parties but in my view these matters support an adjustment in favour of the wife. In my view the proper adjustment is 5 per cent. … In the context of the contribution findings above, the adjustment proposed would mean that the nonsuperannuation assets … should be divided equally and that the superannuation should be dealt with as to 60 per cent to the husband and 40 per cent to the wife. The case is also notable for the inclusion of the wife’s HECS debt as a matrimonial liability, Loughnan J saying (at [109]– [112]): The wife has a HECS debt of $26,858 arising from her tertiary studies which commenced in about 2006. There is room for debate about the approach to this but the default position is that the pool of assets is established at the time of the hearing. The wife owes the debt. There is no evidence about this but I understand that the debt does not attract interest but is indexed and is automatically recovered if the debtor’s income reaches a certain level. The only matter of interest here is whether the wife would ever be obliged to repay the debt. The repayment income threshold for 2013–2014 will be $51,309 and if her income is above that figure the repayments start at 4 per cent of income. Of course the wife could also choose to pay out the loan. The cases for both parties were run on the basis that the wife will energetically seek out paid employment. In my view, the debt will be repaid. I will include the debt in the list of relevant liabilities.

What might seem like an unfairness about that will be addressed below in s 75(2)(h) or if that is read as literally limited to maintenance cases, in s 75(2)(o).

The requirements of justice and equity 8.95 Whatever lack of clarity may occasion from Hickey and Coghlan, the obligation of the Family Court remains the construction of orders which are just and equitable between the particular parties to a particular marriage in the circumstances of that marriage with regard to their property at the date of hearing. (Although, in regard to this last requirement, other dates, such as the date of separation, may also be relevant.) Since the inception of the Family Court of Australia, the division of superannuation in matters before the court has been fraught with confusion and lack of concrete rules. In part, difficulties have arisen because of the breadth of discretion under the FLA and lack of uniformity in judgments brought down by various judicial members of the Family Court. This is despite the guidelines as to exercise of discretion under Pt VIII of the FLA and the cardinal rule that any division of property be just and equitable. [page 544]

In Norbis v Norbis (1986) 10 Fam LR 819; 161 CLR 513; [1986]

HCA 17 Brennan J discussed the problems faced by the court when dealing with judicial discretion tempered by the demands of justice and equity, on the one hand, and, on the other, the development of guidelines. His Honour said (at 835–6): Typically a court draws on the standards and values of the community when it supervises the exercise of a discretion and develops guidelines affecting its exercise, but the Family Court is faced with a problem of peculiar difficulty: whence to derive the standards and values by reference to which the just and equitable result in a particular case or in a class of cases can be determined. However desirable the development of guidelines may be, any attempt to structure the discretion by judicial decision is likely to fail if these difficulties are understated or, worse, ignored. If there is a problem of unevenness in the exercise of the property jurisdiction of the Family Court, it arises because the Act confers a jurisdiction governed by discretion, not by legal rules, and because the relevant standards and values of the community are not uniform.

In CDJ v VAJ (1998) 23 Fam LR 755 at 802; 197 CLR 172 Kirby J said: … Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate

disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is ‘plainly wrong’ will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to ‘plainly wrong’ is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

The relationship between orders for maintenance and orders for property — property first, maintenance second (where an application is made for both) 8.96 A useful characterisation of the distinction between property orders and maintenance orders was referred to in Marriage of Taylor (1977) 3 Fam LR 11,220 at 11,231; FLC ¶90-226: A maintenance order is simply an order for the payment of money, usually at regular intervals for the support of the person being maintained. The essential feature of such an order is that, unless ordered to be paid in one lump sum, it rises and falls with the need of the person to be maintained, having regard also to the means of the person paying the maintenance. … [By contrast, a property order] involves the transfer of

property fixed in value, the payment of a fixed sum or the assumption of a fixed liability. It does not vary

[page 545] with the needs of the person receiving its benefit and its effects are intended to survive the death of either party. It is meant to be a permanent adjustment of the capital assets and liabilities of the parties, and of its essence it is based upon capital interests rather than on the income of the parties.

8.97 There is a clear interrelationship between the property (s 79) provisions and the maintenance (ss 72, 74, 75) provisions of the FLA. Property proceedings under s 79 require the court to embark on a dual exercise — to ascertain the past contributions of the parties to the ‘property’ and ‘welfare’ of the family (s 79(4)(a)–(c), commonly referred to as the ‘retrospective’ element) and to ascertain as far as possible the parties’ future needs and requirements (s 79(4) (d)–(g), the ‘prospective’ element).

The relationship between property and spousal maintenance claims was clarified by the Full Court in Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595. In particular, the Full Court stated (at 693): … spousal maintenance should only be considered after the s 79 application has been determined. Spousal maintenance should not be confused with the s 75(2) component in the s 79 exercise.

8.98 The outcome of a s 79 application determines the background against which the application for a spousal maintenance order is considered. It affects whether an applicant is able to support himself or herself adequately and whether the other party has a capacity to pay. It follows from this that while a property award is relevant to spousal maintenance, the reverse proposition (that spousal maintenance is relevant to the determination of a property award) does not apply. It is not open to the court, for example, to increase a party’s share of property as a way of avoiding the need for spousal maintenance. It is, however, open to the court to find that an award of maintenance is unnecessary in circumstances where a property settlement, of itself, is adequate to remove further need.

The Full Court in Marriage of Clauson (1995) 18 Fam LR 693 at 704–5; FLC ¶92-595 per Barblett DCJ, Fogarty and Mushin JJ stated: Section 79(1) and (2) empowers the court to make an order for property settlement where, in effect, it is just and equitable to do so. Section 79(4) provides that in considering what order, if any, to make, the court shall take into account the matters referred to in that subsection. A long line of authority in this court has made it clear that this ordinarily involves a three step exercise, namely: A.

The identification of the properties of the parties.

B.

The evaluation of the ‘contributions’ of the parties within s 79(4)(a) to (c).

C.

The evaluation of the matters referred to in s 75(2) (picked up by the terms of s 79(4)(e)).

[page 546] Their Honours added (at 705): Where spousal maintenance is sought in addition to a property order it becomes, in effect, the fourth step in the process. It is only to be exercised after the three step process under s 79 has been completed and it is not to be confused with the s 75(2) component in that latter exercise. The reason why it must be exercised after the s 79 exercise is because that latter exercise establishes the background against which s 74 must operate, that is, the financial circumstances of the parties. The result of the s 79 order may be such that the applicant for maintenance can no longer be described as being ‘unable to support himself or herself adequately’ because he or she may have sufficient assets which … will provide an adequate level of support. It also defines the other person’s capacity to meet any other order. This approach was followed in Marriage of Fickling (1996) 20 Fam LR 258; FLC ¶92-664 and also in Marriage of Rosati (1998) 23 Fam LR 288 at 312.

Contrast, however, Marriage of Vautin (1998) 23 Fam LR 627 at 636, where Fogarty, Finn and Burton JJ, citing Windeyer J in Sanders v Sanders (1967) 116 CLR 366, formed the view that property and spousal maintenance claims could properly be considered together and as interlocking parts of a package, rather than having to be considered only in strict sequence. In Sanders v Sanders, Windeyer J stated (at 379–80):

The power to make an order for maintenance and the power to order an alteration of property interests are not mutually exclusive. They overlap and may be exercised separately or in combination to produce a total result which in the circumstances of the case is just and equitable.

8.99 In some cases, a person who secures a settlement under s 79 may, as a result, no longer need to obtain an order for maintenance. In such a situation, the approach taken in Marriage of Clauson (whereby the court identifies the property of the parties; evaluates the contributions of the parties within s 79(4)(a)–(c); and considers the matters referred to in s 75(2) picked up by the terms of s 79(4)(e) before proceeding to make an order under s 79(1) that pursuant to s 79(2) is just and equitable in all the circumstances) has much to recommend it from the point of view of clarity and certainty.

Section 79(4)(f) — any other order affecting a party 8.100 In considering what order, if any, should be made under s 79 of the FLA, subs (4) requires the court to take into account: ‘(f) any other order made under this Act affecting a party to the marriage or a child of the marriage’. The purpose of s 79(4)(f) is to oblige the court when making an order under s 79 altering property interests to be mindful of both the terms and effect of any other order that has been made under the Act. In other words, such an order ought not to be

made in isolation, particularly when it is made in concert with a parenting order including a [page 547] child maintenance order under Pt VII, and a spousal maintenance order under s 74: Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN N39; FLC ¶90-469.

Section 79(4)(g) — any child support 8.101 Section 79(4)(g) requires a court to take into account any child support (see Chapter 6) under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage has provided, or is to provide, for a child of the marriage. Assessment for child support may diminish the resources from which a party can meet the terms of a property order. Under the provisions of the Child Support (Assessment) Act, the court can take into account property division under the FLA as a factor in the appropriate level of child support: Marriage of Sloan (1994) 18 Fam LR 249.

Exercise of the court’s discretion in making an order that is just and equitable Section 79(5): adjournment of proceedings, change in financial circumstances 8.102

This subsection was inserted into the FLA by the

Family Law Amendment Act 1983 (Cth). The court may now adjourn s 79 proceedings to defer the making of an order, in respect of contingent interests of a party in property (for example, superannuation entitlements) until those interests vest in a party. It enables the court to adjourn matters if the court, in the exercise of its discretion, finds that there are appropriate reasons for doing so. The court can adjourn proceedings if there is likely to be a significant change in the financial circumstances of one or both of the parties to the marriage and if it seems that making an order after the right has accrued is more likely to do justice than attempting to estimate the appropriate amount in advance. The Full Court has pointed out that an adjournment under s 79(5) is different from other adjournments and might be better referred to as a deferral; consequently, appeal benches may be more willing to interfere with trial judges’ exercise of discretion than they are in the case of ordinary adjournments.

In Marriage of Grace (1997) 22 Fam LR 442; (1998) FLC ¶92-792, the Full Court of Nicholson CJ, Kay and Coleman JJ characterised the power conferred by s 79(5) and stated (at 447– 9): We also consider that a characterisation of the purpose of power under s 79(5) is assisted by looking beyond the specific reasons for its insertion in the Family Law Act and considering where it fits within the broader context of the scheme established within the Act for property settlement under s 79. The most important relevant features of the scheme may be briefly stated: (a) An application for property settlement must be brought no later than 12 months after the marriage

has been dissolved, otherwise leave must be obtained pursuant to s 44(3) of the Act. [page 548] (b) The Act draws a distinction between ‘property’ and ‘financial resources’. The court is able to make orders that settle the property of the parties but not their financial resources. Thus, in making orders that settle property, the court is required to have regard to each party’s financial resources but can only settle the property of the parties which is in existence. Further, it is limited in its powers to make orders in respect of third parties: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 6 Fam LR 591. (c) The usual process to be undertaken in determining applications for property settlement under s 79 of the Act is clear and operates upon the property of the parties at the time of the hearing: In the Marriage of Ferraro (1992) 16 Fam LR 1, at 23; (1993) FLC ¶92-335 at 79,560. (d) In making an order under s 79, subs (2) requires that ‘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’. This applies to determinations under s 79(5). (e) Section 85 [now s 106B] of the Act enables the court to find that transactions have been made by a party which ‘is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order’: see the discussion

in Halabi and Artillaga (1993) 17 Fam LR 675; (1994) FLC ¶92-470. (f)

In making orders for property settlement, s 81 of the Act requires the court to have regard to the policy of bringing finality to the parties’ financial disputes.

(g) Once an order is made under s 79, further applications may only be brought where the narrow criteria of s 79A are satisfied. The logic of precluding repeated applications to bring finality to proceedings, except where there is proof of the narrow exceptions under s 79A requires a countervailing safeguard which meets the possibility that parties may have little property available for settlement at the time of hearing but an expectation of the acquisition of more at a subsequent stage. Seen in this context, it is apparent that the exercise of the discretion to adjourn pursuant to s 79(5) has very serious consequences for the actual subject matter of the dispute and does not relate to the conduct of the hearing. It is therefore a different type of ‘adjournment’ to that which is often the subject of discussion in those authorities that suggest that appellate courts should be reluctant to interfere with the exercise of discretion by a trial judge as to whether to grant an adjournment or otherwise. The discretion to adjourn proceedings is guided by the legislature. Taking the words of s 79(5) on their face … there are certain preconditions which, cumulatively, must be found in order to invoke the power to order an adjournment: (a) that there is likely to be a change in financial circumstances; (b) that the likely change is a significant one;

(c) that having regard to the likely and significant change, it is reasonable to adjourn the proceedings; and (d) that an order made if that significant change occurs is more likely to do justice as between the parties than an immediate order. We would add in respect of this last precondition that in light of s 79(2) we read ‘justice’ as incorporating ‘justice and equity’. … As a matter of principle, therefore, it is our view that an order granting or refusing an adjournment under s 79(5) is not an ‘adjournment’ in the merely practice and procedural sense in which the term is commonly used. Such an order goes to the core subject [page 549] matter of the determination to be made under s 79, thus conferring a substantive not just procedural quality to its consequences. Before leaving this topic, in light of discussion in recent years concerning further amendments to the provisions of the Act relating inter alia to property, we would conclude this discussion by observing that it is perhaps unfortunate that the term ‘adjournment’ is used in s 79(5). This is because the term ‘adjournment’ in this context may better be described as a ‘deferral’ of the hearing of the application until the happening of one or more specified events which impact upon the capacity to conduct the property settlement determination required by s 79.

See also Gee and Luxford [2017] FamCA 222. Section 79(6): adjournment of proceedings, interim orders 8.103 This subsection was inserted into the FLA by the Family Law Amendment Act 1983 (Cth). The court, where it proposes to adjourn proceedings, may make such interim order or orders, or other order or orders, as it considers appropriate with respect to any property of the parties to the marriage or either of them. This enables the court to make partial or interim property orders in relation to the property of the parties while at the same time adjourning the proceedings in order to take into account property which either of the parties may receive in the future.

In Marriage of Harris (1993) 16 Fam LR 579 at 586; FLC ¶92-378, the Full Court made it clear that the interests of the parties and the court are generally better served by there being one final hearing and accordingly the exercise of the power should be confined to compelling circumstances such as where the property is in danger of being eroded or lost, or where it is necessary to preserve a home for the children.

Section 79(7): adjournment of proceedings, matters which the court may take into account 8.104 This subsection was inserted in the FLA by the Family Law Amendment Act 1983 (Cth). The court, under s 79(5), has to consider whether there is likely to be a significant change in the financial circumstances of the

parties or either of them. Section 79(7) refers to specific situations which may call for the application of s 79(5). It provides that the court may, in forming an opinion as to whether there is likely to be a significant change in financial circumstances of either or both of the parties, have regard to any change in financial circumstances that may occur because a party may be entitled to benefits under a superannuation fund or scheme or benefits which may accrue under a discretionary trust. See In the Marriage of Hamilton (1984) 9 Fam LR 996; In the Marriage of Pleym (1986) 11 Fam LR 451; In the Marriage of Tems (1990) 100 FLR 472; FLC ¶92-169. [page 550] Section 79(8): where a party dies before property settlement proceedings are completed 8.105 This subsection permits the legal personal representative of the deceased party to continue with the proceedings on foot. See Stanford and Stanford [2012] HCA 52; Laue and Laue (decd) [2013] FCWA 87. Section 79(9): conferences pursuant to r 12.03 of the Family Law Rules 2004 8.106 The purpose of this section is to make a case assessment conference pursuant to r 12.03 of the Family Law Rules 2004 (Cth) compulsory or a conciliation conference

pursuant to r 12.07 compulsory in all property cases unless the court is satisfied that it is not reasonably practicable. Section 79(10): other parties that can intervene in proceedings 8.107 This section permits a creditor or any other person (such as a de facto partner or someone who has entered into a binding financial agreement with one of the parties) to become a party to the proceedings if the creditor or other person might not be able to recover his or her debt or entitlements if a property order were to be made. Section 79(10A): excludes some creditors 8.108 This section does not provide an entitlement to join the proceedings where a party is bankrupt and the creditor’s debt is provable under the Bankruptcy Act 1966 (Cth). Section 79(10B): applies to an intervening party pursuant to s 79(10) (aa) 8.109 This section permits an intervening de facto partner to also seek orders pursuant to ss 90SM and 90SL. Section 79(11): where a trustee in bankruptcy is entitled to join 8.110 Where a party is bankrupt or becomes bankrupt during the proceedings the bankruptcy trustee can apply to join the proceedings. The court must allow this where it is satisfied that the interests of the bankrupt’s creditors might be affected by any order made under this section. Section 79(12) and (13): trustee in bankruptcy to seek leave of the court 8.111 Where a bankruptcy trustee becomes a party, the

bankrupt party will need to seek the leave of the court if they wish to make submissions in respect of the property vested in the trustee in bankruptcy. The court can only grant leave where it is satisfied there are exceptional circumstances. Section 79(14), (15) and (16): personal insolvency agreements 8.112 These sections relate to trustees and insolvent parties who have a personal insolvency agreement made pursuant to the Bankruptcy Act. [page 551]

The power to set aside orders 8.113 By s 79A(1) of the FLA, any person affected by an order made by the court under s 79 may apply to have that order varied or set aside in the following circumstances: (a) where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance; (b) where circumstances have arisen since the order was made whereby it is impracticable for the whole or part of the order to be carried out; (c) where a person has defaulted in carrying out an obligation imposed on him or her by the order, and in the circumstances that have arisen as a result of the default, it is just and equitable either to vary the order or to set the order aside and make another order in

substitution for it; (d) where circumstances of an exceptional nature relating to the welfare of a child of the marriage have arisen since the making of the order, and because of these circumstances, either the child or (where the applicant has custody of the child) the applicant will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for it. See Yusuf and Burton [2012] FamCA 580; Paget and Dubois [2013] FCCA 1746. Miscarriage of justice: s 79A(1)(a) 8.114 In an application under s 79A(1)(a) of the FLA, the following questions are relevant: 1.

whether there was fraud, duress, etc;

2.

whether that amounted to a miscarriage of justice;

3.

whether the court in its discretion should vary or set aside the order; and

4.

whether it should make another order under s 79.

In Marriage of Patching (1995) 18 Fam LR 675; FLC ¶92-585, one of the parties did not reveal the existence of a significant asset. In that case, the question arose as to whether, in the event that there had been a miscarriage of justice, the court was bound to vary or set aside the order and make another order under s 79. The court emphasised the importance of considering separately the exercise of discretion as distinct from the finding as to whether there was a miscarriage of justice under s 79A.

The Full Court per Nicholson CJ, Fogarty and Jordan JJ held that in deciding whether any adjustment warrants intervention under s 79A, the appropriate test is whether the result would be ‘materially different’ from the original orders (at 683). In other words, it may well be that the court finds that a ground exists but that the discretion should not be exercised so as to vary or set aside the orders.

[page 552]

The question as to what amounts to a ‘miscarriage of justice’ was considered by the Full Court in Marriage of Suiker (1993) 17 Fam LR 236; FLC ¶92-436. In that case, the wife successfully applied for a consent order for a property settlement to be set aside because the husband did not disclose that he had applied for redundancy and had changed from one superannuation scheme to another. The Full Court held that the words ‘miscarriage of justice’ should not be construed narrowly, but may include matters connected to proceedings which have an influence on the final outcome (at 243), for example, the duty to make full disclosure.

Marriage of Morrison (1994) 18 Fam LR 519; (1995) FLC ¶92-573 referred to the obligation on the applicants to make full disclosure of interests in property, and the obligation on the court to make an order that is just and equitable. The court stated (at 525): The constant emphasis of the cases is that in order for there to be a just and equitable and an appropriate order

altering the interests of the parties in their property there must be full and frank disclosure between them of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future. Fogarty, Baker and Kay JJ emphasised (at 527): We take this opportunity once again to reinforce the view that the duty of disclosure is a basic duty. Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice.

In the matter following the husband failed to disclose that, rather than being unemployed, he was earning $200,000 per annum.

In Simon and Michel [2010] FMCAfam 1055 Burchardt FM set aside a property settlement under s 79A of the FLA on the ground that the husband had failed to disclose relevant information, being the fact of his new employment and its salary package of $200,000. In relation to the husband Burchardt FM said (at [22]–[31]): I have no doubt that the husband was well aware of his continuing obligation to disclose his employment circumstances. Indeed, he has not seriously for a moment suggested otherwise. Rather the husband, when the matter returned before me for this trial, made ready concessions that he had not revealed his income, and did so in a manner that suggested to me a total absence of remorse and an insouciant disregard for his obligations of discovery.

In my original Reasons for Judgment, I had noted at paras 43 and 44 that the husband had every hope he would be engaged relatively shortly in well-paid employment. I noted that those hopes must inevitably be said to be speculative. I went on to say: The husband impressed me as a man of resource and determination. It is, in my view, more probable than otherwise, that he would obtain well paid employment within a reasonably short period of time.

[page 553] As events had transpired, that conclusion was clearly prescient. It is certainly the case that I went on to make the orders that I did make against the background of the finding I have just set out. Section 79A of the Family Law Act relevantly reads: (1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the Court is satisfied that: (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; … the Court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. Here, it is difficult to imagine circumstances that more

clearly fall within the ambit of that section. The husband’s failure to reveal the fact of his new employment and the important income it gave rise to had two effects. First, it meant that the court proceeded on a misunderstanding of the true state of affairs. Secondly, it had the effect of concealing from the court, as at 1 February 2010, the fact that the husband had earned two months’ worth of salary on a package of $200,000. That package included a component of superannuation which altered, albeit perhaps not in a dramatic way, the nett figures as to the parties’ superannuation entitlements. In my view, such circumstances clearly amount to suppression of evidence being a stark failure to disclose relevant information, and if I am wrong as to that matter, it would plainly contemplate ‘another circumstance’. It is one thing to say, as the husband did, that the court clearly foreshadowed the outcome that in fact occurred. It is not possible, retrospectively, to turn one’s mind back to imagine what the position or outcome would have been if the court had indeed known what the true position was. In my view, the circumstances are such that the court’s discretion under s 79A has plainly been enlivened. The second question is whether that discretion should be exercised. Burchardt FM exercised his discretion in the wife’s favour, concluding (at [36]): In the circumstances, I think that the husband’s failure to reveal his employment, and the fact that he has obtained employment well structured to his advantage in taxation terms, at such a substantial amount at $200,000, causes me to decide that I should exercise my discretion

favourably to the wife. I will order that there be a further splitting order to apportion a further $15,000 of his superannuation, from the amount admitted by the husband, to the wife.

Impracticability of carrying out the order of the court: s 79A(1)(b) 8.115 Section 79A(1)(b) of the FLA enables the court to take account of events since the s 79 order was made. It allows the court to vary or set aside an order made under s 79 if the carrying out of the order is rendered impracticable by the unforeseen circumstances which have arisen since the making of the order. In this section an analogy can be made between unforeseen events arising after a contract [page 554] has been entered into which render the fulfilment of the obligations under the contract impossible or impracticable (known as the doctrine of frustration) and the impracticability, in certain circumstances, of an order made under s 79 being carried out. In Marriage of La Rocca (1991) 14 Fam LR 715; FLC ¶92-222, the court discussed ‘the happening of events which cannot reasonably be foreseen’ at the date of the making of the order. The analogy, however, between the commercial law of contract and the requirements of the FLA must not be taken too far. In Marriage of Franklin and McLeod (1993) 17 Fam LR 793 at 796; 121 FLR 430; (1994) FLC ¶92-481 the analogy with commercial contracts was said to be ‘of assistance’ but in

Marriage of Cawthorn (1998) 23 Fam LR 86 at 95 it was also said that it ‘must remain at all times in the forefront of the court’s deliberations that the task before the court is to interpret and administer a section of the Act’. Their Honours were referring to the necessity of doing justice between the husband and wife. In the following matter Benjamin J, in refusing the husband’s application to set aside an order of the court on the grounds that it was no longer practicable, found it was merely inconvenient.

In Carrington and Carrington (No 2) [2010] FamCA 982 Benjamin J dismissed a husband’s application for an order setting aside a property order by which the husband at his insistence was to retain all of the assets and pay the wife $1.98 million for her property entitlement instead of allowing a sale of assets to provide for her settlement. The basis of his application was that his receipt of a tax demand for $76,000 more than had been accepted at the hearing, and his bank’s withdrawal of finance when his company went into voluntary administration, had made it impracticable for the order to be carried out within the meaning of s 79A(1)(b) of the FLA. Benjamin J made reference to the former position of the husband that rather than sell property he be allowed to keep the pool intact and settle the wife’s share by way of cash. His Honour said (at [62]–[65]): This is the real point to the husband’s concerns. He ties it in with the other issues but essentially this is the focus of his concerns and unhappiness. Section 79(1)(b) provides as follows: Where, on an application by a person affected by an order made by

the court under s 79 in property settlement proceedings, the court is satisfied that … (b) in the circumstances that have arisen since the order is made it is impracticable for the order to be carried out or impracticable for part of the order to be carried out.

Senior counsel for the wife’s submissions was that it is not impracticable for the orders to be carried out, even taking the husband’s case at its highest. He argued that it is not impracticability but rather inconvenience. His Honour continued (at [66]): I accept that at the trial the husband had a strong desire to retain the entirety of the substantial assets in the matrimonial pool. That was the basis upon which the case [page 555] was conducted. He, and he alone, sought a structure of orders which saw him obliged to pay money rather than to place the wife in an equivalent position by transfer of assets. In acceptance of the wife’s application, Benjamin J said this (at [75]): I accept [the] submissions on behalf of the wife that it is not impracticable for the husband to comply with the order, it is inconvenient. In that regard the husband has sold two assets being part of the farm real estate and his business but there is no evidence he has endeavoured to sell other assets. The approach he adopted was through finance which I accept has been exhausted.

In the matter of Yusuf and Burton [2012] FamCA 580 Collier J set aside an order made in 2008 pursuant to s 79A. The order entitled the wife to be declared sole beneficial owner of the superannuation funds held jointly by the parties. Collier J stated (at [1]): I am of the view that that Order should not have been made at the time it was. On 20 August 2008, the scheme of the Family Law Act 1975 (Cth) provided specifically for the manner in which splitting orders were to be made. Relevant sections, and particularly section 90MT of the Act, had been inserted by amendments which came into force on the 28 December 2002. The order had not been drafted in accordance with s 90MT and it seems the parties had not provided the trustee of the fund with procedural fairness. In this matter Collier J insisted that the application be amended and the order pertaining to a superannuation split be drafted in accordance with the Act.

Default of the applicant: s 79A(1)(c) 8.116 Under s 79A(1)(c) of the FLA, it is clear that a party cannot successfully seek an order pursuant to s 79A(1) as a result of that party’s own default. The applicant must establish that his or her cause is just and equitable and that the applicant is free of any wrongdoing.

In Marriage of Cawthorn (1998) 23 Fam LR 86; FLC ¶92-805, the husband appealed against the dismissal of his application to set aside property orders pursuant to s 79A. At trial, the husband contended that it had become impracticable for him to carry out those parts of the order with which he had failed to comply

because of a two-fold deterioration in his financial circumstances. The deterioration to his financial circumstances, it was argued, came about first because of the sale of a property for substantially less than anticipated, and second, because of significant payments his business was required to make as the result of embezzlement by a partner. The trial judge was not swayed by this argument and noted that while the husband had continued to enjoy a high standard of living since the making of the consent [page 556] orders and had even contributed approximately $10,000 to his daughter’s wedding, he had made no efforts towards making payments to the wife. On the basis of this conduct, the trial judge refused the husband’s request for an adjournment to enable him to place further material regarding his financial situation before the court. On appeal, the husband abandoned the ground of impracticability in so far as it related to the alleged fall in the value of his property and relied on the deterioration in his financial position caused by the problems which arose in his accountancy partnership. He submitted that the trial judge was in error in not exercising her discretion to set aside the consent orders and in finding that it was not impracticable to carry out the terms of the order when they were entered into on the basis that the husband had the financial capacity to carry them out. The Full Court dismissed the appeal. The court, in following Marriage of La Rocca (1991) 14 Fam LR 715; FLC ¶92-222 and referring to Marriage of Franklin and McLeod (1993) 17 Fam LR 793; (1994) FLC ¶92-481, agreed that the fact that a spouse’s financial position has deteriorated with the result that he or she will find it difficult to comply with the property order does not mean that it is impracticable for the order to be carried out.

Exceptional circumstances concerning the welfare of a child which will cause hardship: s 79A(1)(d) 8.117 What amounts to exceptional circumstances is very much a question of fact and degree: Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC ¶91-576. The occurrence of a change in the responsibility for the daily care, welfare and development of children of a marriage, after the making of an order under s 79 of the FLA, could not be held of itself to be an unusual circumstance. Ordinary vicissitudes, coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following their divorce 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 create situations in which it is desirable, having regard to the children’s welfare, that such exchange occurs: Marriage of Simpson and Hamlin; see also Marriage of Sandrk (1991) 15 Fam LR 197; FLC ¶90260. 8.118 When adjudicating an application under s 79A(1)(d) of the FLA, the court must ask whether in the circumstances the change which occurred was such as to take it out of and beyond the ordinary circumstances in which such change might reasonably be expected to occur. Not even exceptional change, however, is sufficient in itself to obtain an order under s 79A(1)(d). The applicant must also be able to show the court that from the change hardship ensues. Even then, the hardship must be of such a serious nature and result in such inequity that it can only be rectified by setting aside or

varying an existing order of the court: Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC ¶91-576. It is not necessary that the exceptional circumstances flow from the terms of the original order. [page 557]

In Marriage of Liu (1984) 9 Fam LR 1060 at 1066; FLC ¶91-572 at 79,624, Nygh J said: [T]he exceptional circumstances need not by themselves relate to the original property order. An obvious example would be a serious chronic illness of a child which causes a need for remodelling of the house in which he or she lives which cannot be met out of increased maintenance but only out of an increased share of capital.

For a discussion regarding the principles governing summary dismissal of s 79A applications, see Beck and Beck (2004) 31 Fam LR 467; FLC ¶93-181. Varying or setting aside orders by consent: s 79A(1A) 8.119 This section enables a court to vary or set aside an order made under s 79 where all the parties to the s 79 proceedings consent: Marriage of Parker (1983) 9 Fam LR 323 at 326; FLC ¶91-364; see also Marriage of Slapp (1989) 13 Fam LR 158; FLC ¶92-022. Any new order may be made by

consent pursuant to s 80(1)(j): Marriage of Scarborough (1978) FLC ¶90-501.

General powers of the court to make orders 8.120 Section 80 of the FLA sets out the range of powers that the court may exercise in proceedings for property settlement and spousal maintenance. Section 80 is not an independent source of jurisdiction for the Family Court, but arises only where the court is exercising its powers under Pt VIII.

In Marriage of Davidson (1994) 17 Fam LR 656 at 667; FLC ¶92469, the Full Court (Nicholson CJ, Fogarty and Treyvaud JJ) said: A relevant connection or relationship is required between a primary power within Pt VIII and the exercise of any of the powers in s 80(1). That is, it is not sufficient in order to attract the powers under s 80(1) that the court is exercising or has exercised one or more of the powers in Pt VIII: there must be some connection or relationship between these two circumstances. The circumstances that the powers under s 80(1) may be exercised from time to time and in relation to previous orders is demonstrated by the terms of the subsection itself and by a number of decisions over the years … See also Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC ¶92-836.

8.121

Section 80 of the FLA states:

(1) The court, in exercising its powers under this Part, may do any or all of the following: (a) order payment of a lump sum, whether in one amount or by instalments; (b) order payment of a weekly, monthly, yearly or other periodic sum; (ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

[page 558] (c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs; (d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order; (e) appoint or remove trustees; (f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage; (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

(i) impose terms and conditions; (j) make an order by consent; (k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and (l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part. 2.

The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

3.

The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

4.

If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.

5.

If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.

6.

Subsections (4) and (5) do not limit paragraph (1)(d).

Duty of the court to end financial relations between the parties

8.122 Section 81 of the FLA is aspirational in that it seeks to end financial relations between the parties to a breakdown of a marriage where this is both reasonable and practicable in the circumstances. It states: In proceedings under this Part, other than proceedings under s 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, 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.

[page 559] Section 81 gives voice to the legislative policy that each party to a marriage breakdown ought to be able to plan his or her future without regard to other than necessary interaction with his or her former spouse. There are, of course, many circumstances which make it difficult to sever completely the financial relationships between the parties. Rather, s 81 reflects the ideal where the circumstances of the particular case warrant it.

In DJM and JLM (1998) 23 Fam LR 396; FLC ¶92-816, Baker, Kay and Morgan JJ cited with approval the statement in Marriage of Dench (1978) 6 Fam LR 105 at 107; FLC ¶90-469 at 77,402 per Evatt CJ and Watson SJ (at 428): Section 81 casts a duty on the court as far as practicable to make such orders as will finally determine the financial relationship between the parties and avoid further proceedings. This provision does not override ss

72, 75 or 79 and it does not come into play unless the court has determined that it would be just and equitable to make a property order under s 79 or that it would be proper, having regard to ss 72 and 75 to make a maintenance order in favour of one party … At that stage, s 81 may have a bearing upon the form of the order; it must be considered in the light of s 83, under which maintenance orders may be modified, and in the light of In the Marriage of Taylor (1977) 3 Fam LR 11,220; 15 ALR 226; FLC ¶90-226 at 76,187 which determined that orders made under s 79 may not be varied.

The court has the power to maintain the financial relationship between the parties until all final orders have been satisfied. In the matter following it can be noted that the court restricted the movement of the husband pursuant to s 114(3) to ensure that the orders of the court would be acted upon.

In Rahman and Rahman [2013] FamCAFC 162 before May, Ainslie-Wallace and Murphy JJ, the husband appealed against orders of Watts J in relation to a property settlement under s 79 of the FLA. The wife opposed the appeal and sought to maintain the orders set down by Watts J. At the time of the hearing before Watts J, there were significant assets in Australia. The central issue in dispute was the fate of approximately $580,000. The husband alleged that this money had been given to the wife’s father to buy land in Lebanon and the father had defrauded him of this money and ‘and preyed on his innocent simplicity in matters of business’ (at [28]). This was denied by the wife and her father (at [5]). Watts J found that the husband had taken the money and failed to disclose the whereabouts of the money. His Honour inferred that the husband still had access to the money and considered the marital assets to include the sum of $580,000. Orders were made that the husband pay the wife $377,000, representing 65 per cent, within 28 days (at [6]). His Honour made a further order pursuant to s 114(3) that the husband be restrained by injunction from leaving Australia until the husband had complied with the payment order (at [7]). His Honour invited counsel for the husband to make submissions as to why an order pursuant to s 114(3) restraining the appellant from leaving Australia as a means of

[page 560] enforcing the final orders ought not be made. The appellant’s counsel submitted that, by virtue of s 81, the court does not have the power to make an ‘open-ended’ order pursuant to s 114 restraining a person from leaving Australia. In discussing s 81 the Full Court (at [63]) made it plain that: The statutory mandate in s 81 is not absolute; it is conditioned by a consideration of what is ‘practicable’. Of itself, the section does not preclude an order of the type made; it is an important factor which is also to be considered. Murphy J (who agreed with May and Ainslie-Wallace JJ) said (at [65]): In my view, his Honour was plainly correct in being satisfied that the ‘heavy onus’ that there was ‘a likelihood that [she] [would] be denied a remedy if the [appellant’s] freedom to leave the jurisdiction is not limited or suspended’ had been met.

Powers of the court in relation to transactions likely to defeat claims 8.123 As the breakdown of a marriage can often engender considerable bitterness, it is hardly surprising that parties sometimes try to divest themselves of significant assets in order to prevent the Family Court, and ultimately the other party to the marriage, dealing with these assets. Section 106B is a legislative response to the danger that parties will enter

into transactions which will frustrate the operation of the FLA. It gives the court power to restrain the making of such transactions or, if they have already occurred, to set them aside.

In Marriage of Whitaker (1980) 5 Fam LR 769 at 774; FLC ¶90813, Nygh J stated: Section 85 [now s 106B] by its very nature envisages that an order can be made thereunder ordering a transferee, who is not a party to a marriage, to reconvey property. Indeed it envisages that even if the transferee is a bona fide purchaser for value such an order could in appropriate circumstances and subject to appropriate conditions be made.

Kennon v Spry; Spry v Kennon [2008] HCA 56 was a matter heard in the High Court of Australia before French CJ, Gummow, Hayne, Heydon and Kiefel JJ. On 3 December 2008 the High Court released the following synopsis of a matter which was first heard by a single judge of the Family Court followed by a hearing before the Full Court of the Family Court and finally before the High Court. It is obvious from the list of parties involved that this was a case concerning a husband, wife, their children and one other person, Kennon. The matter has received much publicity and considerable debate amongst the legal and accounting fraternity. The synopsis said: Edwin Philip Kennon and Ian Charles Fowell Spry (in their capacity as trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust) and

[page 561] Elizabeth Anne Fowell Spry and Ian Charles Fowell Spry (in their capacity as trustees of the Elizabeth Spry Trust) v Helen Marie Spry, Ian Charles Fowell Spry, Elizabeth Anne Fowell Spry, Catharine Sarah Fowell Spry, Caroline Jane Fowell Spry and Penelope Sarah Fowell Spry. Ian Charles Fowell Spry v Edwin Philip Kennon and Ian Charles Fowell Spry (in their capacity as trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust), Elizabeth Anne Fowell Spry and Ian Charles Fowell Spry (in their capacity as trustees of the Elizabeth Spry Trust) v Helen Marie Spry, Elizabeth Anne Fowell Spry, Catharine Sarah Fowell Spry, Caroline Jane Fowell Spry and Penelope Sarah Fowell Spry. The assets of a family trust established before marriage could be taken into account in property settlement orders under the Family Law Act, the High Court of Australia has held. Dr Ian Spry, a retired Victorian barrister, married Helen Spry in 1978. They had four daughters, now in their twenties. In 1968, Dr Spry created the ICF Spry Trust with himself and his siblings, their spouses and their children as beneficiaries. He was the sole trustee. In 1983, he excluded himself as a beneficiary for land tax reasons. In 1998, when his marriage was in difficulty, Dr Spry further varied the trust to exclude himself and his wife as capital beneficiaries. The Sprys separated in October 2001. In January 2002, Dr Spry divided the income and capital of the trust between four trusts he set up for his daughters. Mrs Spry filed for divorce in the Federal Magistrates Court in December 2002. The divorce was finalised in February 2003.

In April 2002, Mrs Spry applied to the Family Court for orders for property settlement and maintenance. In 2005 Justice Strickland found that contributions to the couple’s assets, including trust assets, were 52% by Dr Spry and 48% by Mrs Spry, and that Dr Spry was entitled to $5,105,435 and Mrs Spry $4,712,709. Taking account of assets Mrs Spry already had, Justice Strickland ordered Dr Spry to pay her $2,182,302. Justice Strickland found that the steps taken with respect to the ICF Spry Trust in 1998 and 2002 were designed to keep property away from his wife and the Family Court. Under section 106B of the Act, he set aside the 1998 variation and the 2002 dispositions of assets. Dr Spry appealed. He and Edwin Kennon crossappealed in their capacity as joint trustees of three daughters’ trusts. Dr Spry and his daughter Elizabeth cross-appealed in their capacity as joint trustees of the Elizabeth Spry Trust. The Full Court of the Family Court, by majority, dismissed the appeal and cross-appeals. Dr Spry and the joint trustees of the children’s trusts appealed to the High Court against both dismissals. The Court, by a 4–1 majority, dismissed the appeals and upheld Justice Strickland’s order for Dr Spry to pay Mrs Spry $2,182,302. The appellants were ordered to pay Mrs Spry’s costs. Dr Spry and the children argued that the assets of the trust were not part of the asset pool to be considered in making property orders. Three Justices held that without the 1998 variation and the 2002 dispositions, Mrs Spry would have had a right to due administration of the trust and to due consideration as a beneficiary. Dr Spry would have had a power to appoint to her the whole of the assets of the trust. The Court held that these rights were property of the parties to the marriage. It held that the Family Court could make orders in property settlement proceedings as if changes

to property rights brought about by the divorce had not yet occurred. The High Court held that it was open to Justice Strickland to make the orders he did on the basis that the asset pool comprised $9,818,144. One Justice supported Justice Strickland’s orders by reference to section 85A of the Act providing for variation of post-nuptial property settlements.

[page 562]

Tabussi and Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (decd) [2015] FCWA 108 before Duncanson J concerned an application pursuant to s 106B of the FLA to set aside a transaction involving the transfer of matrimonial property. The husband, who was suffering from a terminal illness, secretly transferred the matrimonial home (‘the Suburb N property’) to the two adult children of his first marriage. After learning of the transfer, the wife of 35 years issued proceedings. The husband, however, died before he was served with court documents. Two of his adult children were appointed executors in their father’s will. The wife sought an order that the transfer be set aside under s 106B (transaction to defeat claim) and property orders. The husband’s children opposed the application, arguing that the court would not have made a property order had the husband not died as the parties had not separated and therefore s 79 of the FLA could not apply. The parties each had adult children but no children together. At the start of the relationship the husband owned the Suburb N property and the wife a farm. Together they formed a trucking business, kept some assets

separate but also bought property together. The wife nursed and cared for the husband after he was diagnosed with cancer and while he received medical treatment and underwent surgery coupled with chemotherapy. In posing the question as to whether the transfer by the husband was motivated to defeat an anticipated order likely to be made on behalf of the wife Duncanson J (at [85]) cited authority relevant to s 106B: The test to be applied is an objective one. In Pflugradt and Pflugradt (1981) FLC ¶91-052 Elliott J said (at 76,430): … it is not a question of whether the husband expected or foresaw a subsequent property application by the wife and ‘anticipated’ an order being made, but whether considering all of the circumstances at the time of the disposition such an application by her at some time, with a consequent order, was objectively to be foreseen or to be expected by him as being likely or reasonably probable.

On the evidence, the husband was a secretive man who did not tell the wife about the transfer of property and he instructed the second respondent not to do so. The wife was successful in overturning the transfer of property. The court decided that it was reasonable for the husband to have foreseen that his wife would make a claim for property settlement when she found out about the transfer of property and his actions of secrecy supported this view. With the property then assigned to the assets for division in the property pool, the judge awarded the wife 55 per cent of the combined net asset pool and the husband’s estate received 45 per cent. See also Romano and June [2013] FamCA 344.

8.124

Section 106B of the FLA provides:

Transactions to defeat claims (1) In proceedings under this Act, the court may set aside or

restrain the making of an instrument or disposition made by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing

[page 563] or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (1A)If: (a) a party to a marriage, or a party to a de facto relationship, is a bankrupt; and (b) the bankruptcy trustee is a party to proceedings under this Act; the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and (d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (1B) If: (a) a party to a marriage, or a party to a de facto relationship, is a debtor subject to a personal insolvency agreement; and (b) the trustee of the agreement is a party to proceedings under this Act;

the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and (d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order. (3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition. (4AA) An application may be made to the court for an order under this section by: (a) a party to the proceedings; or (b) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or (c) any other person whose interests would be affected by the making of the instrument or disposition.

(4A)

In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).

[page 564] (5) In this section: ‘disposition’ includes: (a) a sale or gift; and (b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust. ‘interest’: (a) in a company includes: (i) a share in or debenture of the company; and (ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and (b) in a trust includes: (i) a beneficial interest in the trust; and (ii) the interest of a settlor in property subject to the trust; and (iii) a power of appointment under the trust; and (iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and (v) an interest that is conditional, contingent or deferred.

‘Disposition’ 8.125 Section 106B of the FLA provides that the court may set aside or restrain the making of an instrument or ‘disposition’. The word ‘disposition’ was considered by the Family Court of Western Australia in Marriage of Bassola (No 2) (1985) 10 Fam LR 413; FLC ¶91-623. Connor J said that the word ‘disposition’ should be given its ordinary meaning, namely ‘any form of alienation’ and not be limited to assignments, sales or gifts of property. It has been said that the alienation must result from a deliberate act by one person to vest property in another: Official Trustee in Bankruptcy v Bassola (No 3) (1986) 11 Fam LR 557; FLC ¶91-760. In that case, however, Murray J also said (at 560) that in the context of s 106B(5), ‘the disposition must have a disponer namely one of the parties to the marriage, and a disponee’, and that the words of s 106B(1) require ‘some control, management or arrangement on the part of the disponer which vests the property in the disponee’. In Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC ¶91517, it was said that a mortgage may be a ‘disposition’ under s 85. An equitable charge may be a disposition under s 106B: Marriage of D (1984) 10 Fam LR 73; FLC ¶91-593. Where a transaction making an allotment of shares in a family company is a sham, being designed to diminish substantially the value of a party’s shares in the company and hence reduce that party’s overall net worth in anticipation of an application under s 79 of the FLA, the transaction may be set aside under s 106B: Marriage of Turnbull (1990) 15 Fam LR 81; (1991) FLC ¶92-258. The forgiveness of a debt for the payment of money is a transaction capable of coming within

s 85: Marriage of Hudson (1986) 11 Fam LR 189; FLC ¶91768. [page 565] ‘Anticipated’ 8.126 ‘Anticipated’ has been said to mean to be objectively foreseen or to be expected as being likely or reasonably probable. It is an objective test, not the subjective test of whether anyone actually thought an order would be made. In Marriage of Pflugradt (1981) 7 Fam LR 188; FLC ¶91-052, it was said that it is an actual order that must be foreseeable, not simply a claim, and the terms of the order must foreseeably be such as would be defeated by the transaction in question. Requirements for a successful application under s 106B 8.127 The requirements which must be satisfied by a successful applicant under s 85(1) of the FLA (now known as s 106B) have been listed by Treyvaud J in Marriage of Gelley (No 2) (1992) 15 Fam LR 483 at 487; FLC ¶92-291, as follows: 1.

There are on foot proceedings under the Act, or completed proceedings the orders from which still have force and effect.

2.

The instrument or disposition has been made, or is proposed to be made.

3.

The instrument or disposition is any one of a series of transactions by which that disposition is carried out.

4.

The instrument or disposition is intended to defeat the order, existing or anticipated, and has that effect, or, irrespective of intention, is likely to defeat such order.

5.

The order defeated, or likely to be defeated, must be existing, or anticipated; it is not an anticipated claim.

6.

Insofar as the order be anticipated, it is one anticipated by the reasonable disponer at the time of the disposition, properly considering all the circumstances of the case.

7.

The effect of the instrument or disposition is that the disponer lacks the capacity to satisfy the orders unless the instrument or disposition be set aside.

8.

The onus of proof, on the civil standard, is upon the applicant.

Protection of third parties 8.128 In determining whether to set aside a transaction under s 106B of the FLA, the court will look at commercial realities but will not allow a sham transaction to defeat the operation of the Act.

In Marriage of Abdullah (1981) 6 Fam LR 654; FLC ¶91-003, the s 85 (now s 106B) application concerned some land which had been owned by the husband as tenant in common with his brother. His half share was subsequently sold, and the wife sought to have this transaction set aside ancillary to her application for a property settlement under s 79. The third party purchaser of the land in question was a Mr Jaja. In ordering the transaction to be set aside, Baker J said (at 663–4): As a statement of general principle I am of the view that

courts should be reluctant to set aside a transaction involving a bona fide purchaser for full value. If the transaction [page 566] has been completed and title passed to a purchaser in the latter circumstances then there would seem to be little advantage in setting the transaction aside. If the proceeds of sale are still available then the appropriate injunction can be ordered under s 114 restraining the dealing with such proceeds until the substantive application has been dealt with. If, on the other hand, the proceeds of sale have been dissipated by the respondent to the application or no longer exist and restitutio in integrum is not possible then a court should not in my opinion in the proper exercise of its discretion make any order under s 85. A possible exception to the above proposition relates in my view to the matrimonial home. If by his conduct a party disposes of his interest in the matrimonial home thereby interfering with the use and occupation of the said premises by the wife and the children of the marriage then I would consider it proper that an order under s 85 be made provided of course that the interests of bona fide third parties can be protected. If, on the other hand, the court is convinced that a particular transaction is a sham and designed to defeat the application instituted under Pt VIII then it should not shrink from making an order setting aside any such transaction. In the present case, I am convinced that the sale of the husband’s interest in 11 L Street Blacktown to Mr Jaja

was a sham. The circumstances of the transaction lead me to the conclusion that Mr Jaja was not a bona fide purchaser nor was the transaction for full and adequate consideration. Subsection (3) of s 85 enjoins the court to have regard to the interests and to make any order which is proper for the [protection] of a bona fide purchaser or other persons interested. The injunctive word ‘shall’ requires the court to have regard to the interests of a bona fide purchaser only. As I have found as a fact that Mr Jaja is not a bona fide purchaser I am not therefore bound by the terms of the subsection and in setting aside the transaction I am not therefore required to make any order in relation to the third party. See also Stephens and Stephens [2007] FamCA 680; Kennon v Spry; Spry v Kennon [2008] HCA 56.

‘Bona fide purchaser’ 8.129 In Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC ¶91-517, a test for determining whether a party was a bona fide purchaser was formulated by the Full Court. That case concerned an application by a wife to set aside an unregistered second mortgage by the husband to a bank. The Full Court held that the test of whether the bank was a ‘bona fide’ purchaser was whether, at the time of the taking of the mortgage, it was aware or should have been aware by making due inquiry that the disposition would be likely to defeat the wife’s property claim. The court held that the bank was not a bona fide purchaser. The bank had been put on notice by the husband of the wife’s property claim. It had ample opportunity to ascertain the details of the property proceedings between the husband and wife and if its own

internal procedures had been followed it would have found a caveat by the wife registered over the property. In view of material facts found within the bank’s knowledge, it had a duty to make those inquiries and searches. 8.130 It is clear that orders under s 106B of the FLA may be made against third parties, and divest them of property or interests acquired under the transaction in question. The court has stressed, however, that it should be very reluctant to [page 567] interfere with the bona fide rights of third parties. Nygh J has said that the court ‘should never interfere with the rights of a bona fide purchaser where it is possible to meet the claim of the applicant by other means’: Marriage of Heath (1983) 9 Fam LR 97 at 110; FLC ¶91-326.

Injunctions under the FLA 8.131

Section 114 of the FLA provides:

Injunctions (1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including: (a) an injunction for the personal protection of a party to

the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated; (c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; (d) an injunction for the protection of the marital relationship; (e) an injunction in relation to the property of a party to the marriage; or (f) an injunction relating to the use or occupancy of the matrimonial home. (2) In exercising its powers under subsection (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights. (2A)In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may: (a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and (b) if it makes an order or grants an injunction under paragraph (a) — make such order or grant such

injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in: (i) that residence; or (ii) a specified area in which that residence is situated; and (c) make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

[page 568] Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM. Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition. Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection. (3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the

court considers appropriate. (4) If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt’s creditors. (5) Subsection (4) does not limit subsection (3). (6) If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement. (7) Subsection (6) does not limit subsection (3).

Injunction for sole use and occupancy of matrimonial property 8.132 In Grenfell and Grenfell [2010] FamCA 1078 Dawe J reviewed the evidence and (from [50]) the legislation and case law in relation to the court’s power to grant an injunction requiring a party to vacate the family home, concluding (at [79]): The stress of continued joint occupation of the former matrimonial home needs to be seen in the context of the wife’s health factors. The requirement for the wife to continue with ongoing chemotherapy and later radiotherapy is a significant factor which takes the matter beyond a case where there is mere tension in the home.

Dawe J referred (at [50]) to the power of the court to grant the wife’s application thus: Section 114(1) and (3) (1) In proceedings of the kind referred to in paragraph (e) of

the definition of matrimonial cause in subsection 4(1), the court may make such order or grant

[page 569] such injunction as it considers proper with respect to the matter to which the proceedings relate, including: (a) an injunction for the personal protection of a party to the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated; (c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; (d) an injunction for the protection of the marital relationship; (e) an injunction in relation to the property of a party to the marriage; or (f) an injunction relating to the use or occupancy of the matrimonial home. … (3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory

order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

Injunctions in relation to property 8.133 As referred to above, s 114 of the FLA gives to the court extensive powers to grant injunctions with respect to property of parties to a marriage, and for the personal protection of the parties. Injunctions for the personal protection of a party and for the exclusive use or occupation of the matrimonial home are further discussed in Chapter 10. In this section, we will discuss injunctions with respect to the property of the parties and in relation to third parties. Injunctions and property: s 114(1) 8.134 Prior to the decision of the High Court in Marriage of Mullane (1983) 8 Fam LR 777; FLC ¶91-303, there was considerable doubt as to the extent of the power under s 114(1) of the FLA to make an order affecting the property of a party to a marriage without impinging upon s 79. The decision of the High Court in that case greatly simplified the question of the extent to which an injunction under s 114(1) could affect property under the FLA. The High Court held that orders granting personal rights of occupation or restricting a proprietor’s personal rights of occupation of property are not orders which alter property interests for the purposes of s 79. An interest in property is a right of a proprietary nature, not a mere personal right. The effect of

this decision is that the test is whether the injunction creates merely personal rights (in which case it can be made under s 114(1)) or whether, instead, it alters the legal or equitable interest of a party in property. [page 570]

In Marriage of Mullane (1983) 8 Fam LR 777; FLC ¶91-303, the marriage of the parties was dissolved by order of the Supreme Court of New South Wales in 1967. The court ordered that the wife should have the exclusive occupation of the matrimonial home until the children of the marriage had become selfsupporting or until she remarried. In August 1978, the wife applied to the Family Court for an order that on the expiration of her period of occupation, the husband should sell the property and that, when a mortgage was discharged, the net proceeds should be divided between the husband and herself in stated proportions. The question arose as to the characterisation of the 1967 order granting the wife exclusive occupation. If it was an order concerning property under s 86 of the Matrimonial Causes Act 1959 (Cth), then the wife would not be entitled to bring a further application under s 79 of the FLA. If, however, it was merely by way of maintenance, then the Family Court would have jurisdiction to consider an application for property alteration pursuant to s 79. The High Court held that it was a form of maintenance order. Mason ACJ, Wilson, Brennan, Deane and Dawson JJ stated (at 782): There is no reason why a court, in particular circumstances, cannot provide maintenance for the wife and children of a marriage by securing to them for a

suitable period the occupation of the matrimonial home. The inclusion of the condition that the right to occupy the home shall continue until ‘the children of the marriage shall have become self-supporting’ is a strong indication that the order is properly categorized as an order for maintenance. In our opinion, therefore, s 79 on its proper construction refers only to orders which work in alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right … It follows, then, that s 79 does not authorize a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a s 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment. Where the section refers to a settlement of property, it should be understood as using that expression in a sense which is closely related to the meaning which the expression bears in the law of real and personal property. The importance of the decision in this case relates to the question whether the long-term occupation order granted in that case constituted a property order under s 79. If the answer was yes, then it was not open to either party to seek a further property settlement. A s 79 order may be made only once and is final, unless set aside under s 79A.

Injunctions to restrain dealings with property

8.135 A valuable use of s 114 of the FLA is to restrain the disposition of property where such an order is necessary to protect a party’s rights in a pending claim under the FLA. In Re Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC ¶90-616, the High Court said that the injunctive power in s 114(1) should be widely interpreted, and proceedings by a party to protect its rights when threatened by some action of the other party appear to lie at the very heart of the matters described in para (e) of s 114(1). The court has, in a number of cases, said that in appropriate circumstances an injunction can be made under s 114(1) to restrain a spouse from dealing with his [page 571] or her property until such time as an application can be made under s 79, provided that such injunction does not alter interests in the property. In determining if an injunction is appropriate, an important consideration is whether there is evidence that a party has an intention to defeat any judgment which may be obtained by disposing of assets: Marriage of Waugh (1999) 27 Fam LR 63; (2000) FLC ¶93-052; see also G and T (2003) 32 Fam LR 101; (2004) FLC ¶93-176.

In Allan and Allan (No 2) [2010] FamCA 998 Watts J dismissed the application of the husband, whom the court in 2009 had by s 114(3) of the FLA removed as director of the parties’ property development company, to be reappointed as a director. The wife relied on the court’s earlier order which appointed her as the sole director when it had been found that the husband was

being uncooperative and failing to account for his actions as director. Watts J concluded (at [30]–[31]): I do not have confidence that the wife and husband will be able to work together in relation to the M property proposal. The husband has demonstrated his lack of cooperation both in the court proceedings and in the M property correspondence. The short meeting between the husband and the wife’s experts clearly showed his contempt for those who the wife is currently instructing. The husband gave no indication in the hearing that he would continue to instruct the current experts. I think it is very likely that should the husband and wife both be directors, there will be conflict between the two parties, disagreements as to who to instruct, disagreements as to the direction of the proposal and decisions that need to be made, and consequently an unworkable stalemate. I have no plan from the husband as to how he would proceed. Where the husband and wife are unlikely to be able to work together, and with a high level of uncertainty about the husband’s vision for the process, I cannot find that there is a basis for varying the previous injunctive orders which I have made, so that the husband be reappointed a director of W Nominees. The evidence before me does not establish that the wife has done anything since she was given control of W Nominees or is currently doing or failing to do anything which will decrease the assets which the parties will eventually have to divide. In the face of the evidence of a complete lack of cooperation between the husband and the wife, some of the orders are perplexing. That is not to suggest that the decision made by the court is in any way incorrect. It is just that the orders may lead to further agitation between the parties. For example, the court, inter alia, made orders in the following terms:

… 5.

The wife, in her capacity as the sole director of W Nominees, have the ultimate authority for decisions in relation to the rezoning of the M property.

6.

The wife, at all times, and in a timely manner, provide all relevant information to the husband in respect of the M development.

7.

The wife shall, more than 7 days before any significant decision is taken in respect of the M development, inform the husband in writing of the decision that the wife intends to make (the proposed decision).

8.

The husband, if he chooses, shall within 7 days of being informed about the proposed decision, provide the wife with his opinion about the proposed decision in writing.

9.

The wife consider the husband’s opinion in respect of the proposed decision before making it.

[page 572]

In the matter of Faukland and Shikia [2016] FamCAFC 83 before Bryant CJ, Ryan and Murphy JJ the husband appealed against the severity of sentences that had been imposed on him for contempt of court. The husband was in contempt of court pursuant to s 112AP of the FLA in relation to two charges. Those charges arose from the husband’s failure to comply with two previous orders of the court. The primary judge Bender J sentenced him to three months imprisonment on each charge to

be served consecutively, and ordered that the terms of imprisonment be wholly suspended indefinitely. The wife did not participate in the appeal. This matter first came before the Federal Circuit Court for the purpose of effecting a s 79 of the FLA property settlement between the husband and the wife. In making an order in relation to the property pool the preservation of it was vital to the final outcome. In June 2014 the trial judge made orders restraining the husband from disposing of a prestige motor vehicle without the written consent of the wife, or pursuant to an order of the court. Neither the court nor the wife were consulted by the husband in relation to selling or otherwise disposing of the car subject to the injunction against the husband. In December 2014 the husband informed the wife’s solicitors that the car had been sold for $90,000 cash. The husband also informed the wife’s solicitors he had spent the cash gambling and on drugs. In an affidavit the husband stated he sold the car to a Mr P, that Mr P had possession of the car and that he did not know Mr P’s or the car’s location. On 19 December 2014 the primary judge made two orders providing for the husband to either provide the wife’s solicitors with Mr P’s full contact details or that the husband deliver possession of the car to the wife’s solicitors by 22 December 2014. The husband did not comply with either order. It is the husband’s non-compliance with those two orders which led to the findings of contempt by the primary judge in August 2015 and the imposition of the sentences, the severity of which was ultimately challenged before the Full Court. This came about by way of the respondent wife filing an application seeking that the husband be dealt with for contempt pursuant to s 112AP(1)(b) of the FLA. As a consequence the trial judge, after a defended hearing: … found that the appellant was in contempt of court in the manner alleged. The appellant was sentenced to a term of imprisonment for three months on each

contempt, to be served consecutively and each sentence was then suspended indefinitely and unconditionally: at [9]. The husband raised two challenges to the severity of his sentences on appeal. The first related to the fact that the sentences were to be served consecutively and the second challenge was directed at the indefinite suspension of the sentence of imprisonment. By his first challenge, the husband argued that the primary judge gave insufficient weight to his poor physical and mental health. He argued that had sufficient weight been given to those factors, the sentences should have been imposed concurrently rather than consecutively. The Full Court found no error in the primary judge’s decision to impose the sentences consecutively, saying: Indeed, given the gravity of the contempt we have little doubt that a total sentence of imprisonment no longer than three months would have been insufficient: at [20]. [page 573] In its consideration of this challenge the Full Court confirmed what was said by a previous Full Court in Abduramanaoski and Abduramanaoska (2005) FLC ¶93-215 where it was held that Pt XIIIB of the Act is a complete code for dealing with contempt and sentencing under the Act and that: … s 112AP affords a sentencing judge a wide discretion, which is to be exercised transparently and in light of the individual facts and circumstances of the case: at [15] By his second challenge, the husband argued that the indefinite suspension of the terms of imprisonment would mean that the sentences would, prima facie, continue for the rest of his life and were therefore excessive. In considering this complaint the Full

Court adopted what was said by the Full Court of the Federal Court in Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319. In that case the Full Court of the Federal Court, applying similar principles to those contained in s 112AP, said: … We are, however, firmly of the view that it is rarely, if ever, that an order should be made suspending the whole or part of a term of imprisonment for an indefinite period. There must come a time when a person who is the subject of a conditional suspension of a term of imprisonment is no longer exposed to that sanction: at [23]. The Full Court therefore found that the primary judge had erred in suspending the sentences imposed on the husband indefinitely. In reaching this conclusion, the Full Court noted that nothing they said: … brings into question the appropriateness of a coercive sentence of indefinite duration designed to compel a person to do something in the future when there is a reasonable prospect it will be done: at [24]. The Full Court re-exercised the discretion and re-sentenced the husband. Having found no error in the imposition by the primary judge of consecutive terms of imprisonment, the Full Court did not interfere with that aspect of the sentences. In accordance with its finding of error in relation to the indefinite suspension, the Full Court wholly suspended the terms of imprisonment until 31 December 2018 subject to certain conditions, including compliance with all future undertakings and court orders.

Injunction to restrain a party leaving Australia: s 114(3) 8.136 In Porto and Porto (No 3) (2010) 45 Fam LR 101; [2010] FamCA 1145, Dessau J found that the husband (who

had claimed he had been defrauded of the family’s wealth by a Mr D in Portugal, his country of birth) had fraudulently taken funds totalling $4.5 million (out of an asset pool of $4.8 million) to Portugal and hidden them. His Honour said (at 114): The evidence satisfies me that the husband, believing that his wife was having an affair, decided to hide their life-savings to prevent her from obtaining a fair property settlement. His story is fanciful. His lack of vigour in searching for the moneys, his lack of cooperation with the wife’s attempts to locate the money, and the impressive evidence of his children as to his admissions to them about hiding the money, are all particularly persuasive in leading to a positive finding that the only fraud in this

[page 574] case is the fraud that the husband has attempted, in an effort to hide the moneys, and that those moneys remain available in a location known to him.

Upon the parties agreeing to an equal division of their assets, Dessau J awarded all the available assets in Australia to the wife and a further $2 million ‘to reflect 50% of the [total] assets’ to be paid by the husband within 21 days (at 116). Dessau J also granted the wife’s application for an injunction restraining the husband from leaving Australia until she had received full payment of her property settlement, applying the Full Court’s ruling in Khademollah and Khademollah (2000) FLC ¶93-050 as to an injunction under s 114(3) of the FLA being imposed as part of final

property orders. A Watch List order was also made, to remain in force until varied by the court. Dessau J added (at 119): It was argued strenuously on the husband’s behalf that he should be able to leave Australia. To restrict someone’s freedom of movement is not a decision taken lightly, but the justice of this case, and the enforcement of the wife’s rights under these orders, leads me on balance to make an order restraining the husband from leaving the country. Of course he should not be restrained once he has complied with the orders.

See Rahman and Rahman [2013] FamCAFC 162. Right to a property hearing under the FLA 8.137 In Marriage of Sieling (1979) 4 Fam LR 713; FLC ¶90627, the Full Court said that, on the breakdown of the marriage, a party to the marriage has an ‘inchoate’ right to a settlement of property and an injunction may be granted to restrain the other spouse from dealing with his or her property in order to prevent the frustration of a later claim under s 79 of the FLA. The court made it plain, however, that such an injunction will not be granted lightly. In considering the manner in which the discretion should be exercised, Evatt CJ and Marshall SJ stated (at 728): The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital

relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party. Within these limits, it is our view that there is power to grant an injunction in respect of property under s 114(1) where this is necessary to prevent the frustration of a later claim under s 79. As such, an injunction would be of a temporary and personal nature and it would not involve the exercise of any power referable only to s 79.

8.138 It follows from their Honours’ findings that there are two requirements for an injunction to restrain a spouse from dealing with his or her property: 1.

an existing or potential claim to an order altering property interests under s 79 of the FLA; and

2.

a danger that the claim may be defeated or prejudiced unless such an injunction is granted. [page 575]

8.139 The court must have regard to both the merits of the claim involved and the degree of danger of any prejudice to the claim that will exist should an injunction not be granted. It is plain that the court is not likely to interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which will make it necessary to restrain a spouse from using his or her property rights to the detriment of the other party. There must also be a real danger that a claim will be defeated or prejudiced unless the injunction is granted. It must be established, for example,

that unless an injunction is granted the other party may dispose of or deal with the property or with company or trust property, in such a manner that there is a risk that any order made under s 79 will not be met. In granting such an order, however, the court should impose the minimum restrictions that are necessary to protect the applicant’s claim under s 79. 8.140 The usual conditions which apply to such an order are as follows: 1.

The order must be directed to a party to the marriage.

2.

The order must relate either to property of the parties or of one party or to property in or over which it is claimed one or other party has an interest or power of control.

3.

The order must be necessary to ensure that the property claim is not frustrated, and there must be a real risk that a party’s entitlement will not be met if the injunction is not granted.

4.

There must be no undue prejudice to third parties.

In the following case heard by the Full Court of the Family Court, the granting of an injunction was further discussed.

In M and DB (2006) 36 Fam LR 454; FLC ¶93-293; [2006] FamCA 1380 before Kay, Warnick and Boland JJ, 19 allegations were made that one of the parties had entered into a scheme in order to alienate property from the jurisdiction of the Family Court. According to the facts of the matter, it was said that while property proceedings were pending, the husband became aware that the wife placed the former matrimonial home, which had been transferred to her following separation, for sale.

The husband sought an interim injunction that the wife retain an amount of not less than $200,000 from the sale and invest the amount pending final settlement, primarily on the basis that the wife was located overseas and that any order in his favour could be defeated by the wife disposing of the sale proceeds offshore. That application was dismissed by a Federal Magistrate on the basis that there was no evidence on the wife’s part of a scheme to defeat any order in favour of the husband by asset disposition, relying on the decision of the Full Court in Marriage of Waugh (1999) 27 Fam LR 63; (2000) FLC ¶93-052. The husband filed an application for permission to appeal against the order, and if permission was granted, an appeal. On appeal, the husband submitted the following: The Federal Magistrate had failed to consider where the balance of convenience lay, in particular the absence of prejudice to the wife if the order was made. [page 576] The Federal Magistrate had applied the principle enunciated in Waugh and the reasoning in that case was incorrect. If the reasoning in Waugh was correct, the decision ought to have been distinguished from the instant case on the facts. Held: the appeal was allowed for the following reasons: 1.

The decision in Waugh was correct but was wrongly applied by the Federal Magistrate.

2.

The Full Court in Waugh did not intend to prescribe as a ‘fundamental’ or ‘threshold’ question whether a scheme to defeat judgment existed, to be answered in the affirmative on the balance of probabilities in every case before an order preserving property could be made.

3.

The Federal Magistrate erred by focusing unduly on whether

the evidence established a scheme of the wife to remove assets to defeat an order in the substantive proceedings. 4.

Consequently, the Federal Magistrate failed to consider a number of necessary factors, including the risk of defeat of an order in the husband’s favour in the substantive proceedings.

5.

The Federal Magistrate failed to consider the wife’s residence overseas and the prospect that she might remove the money as relevant to the degree of risk that an order in the property proceedings would be defeated. The absence of power and jurisdiction to unpick the likely result of any scheme that may exist, where a respondent resides offshore, is pertinent to the risk.

6.

While the wife’s failure to proffer an undertaking or consent to the retention of funds may not have constituted proof of a scheme, the absence of a response was relevant to the degree of risk.

7.

The Federal Magistrate did not consider the inconvenience or prejudice to the wife if an injunction was granted which ought to have been part of the overall assessment as to where the balance of convenience or justice lay.

8.

Waugh was distinguishable on the facts from the case but this was of no significance as the Federal Magistrate did not consider the cases comparable factually.

9.

There was a real risk of the sale proceeds being taken out of the jurisdiction. There would be little or no detriment to the wife if the injunction were granted.

Injunctions and third parties 8.141 In Sanders v Sanders (1967) 116 CLR 366, the High Court held that an injunction could be granted against a third

party. Barwick CJ (with whom McTiernan J agreed) said (at 371–2): That paragraph may be exercised to maintain an existing situation until the court can decide what should be done upon the substantive application for maintenance, even though its exercise involved third parties, and the rights of any such party

[page 577] or parties in relation to one or both of the parties to the matrimonial cause, or in relation to the property of one or both of the parties. But, of course, it must be exercised in a proceeding under the Matrimonial Causes Act and must be in aid of the exercise of the court’s jurisdiction in those proceedings.

This statement concerns s 124 of the repealed Matrimonial Causes Act 1959 (Cth) which dealt with ancillary, and not independent, injunctions.

Barwick CJ’s statement was cited with approval by the High Court in Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC ¶90063. In that case, the High Court upheld the power under s 124 of the Matrimonial Causes Act 1959 (Cth) to grant injunctions against third parties and said that the power extended to the granting of permanent injunctions. A wife obtained an order against her mother-in-law and the husband’s step-brother to vacate the matrimonial home. Both of the above cases were referred to with approval by the High Court in Re Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC ¶90-616, a case decided under the FLA.

8.142 The statement of law by Barwick CJ in Sanders v Sanders applies equally to injunctions under s 114 of the FLA and both interlocutory and permanent injunctions. It should be noted, however, that the court can issue an injunction in respect of third parties only in the course of proceedings under the FLA and only if the injunction is in aid of the exercise of the court’s jurisdiction in such proceedings. Initially, the Family Court was reluctant to issue an injunction against a party to the proceedings if it would also affect the rights of third parties.

However, in Re Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC ¶90-616 the High Court held that an injunction could be granted to restrain a husband from using his influence or control over a company which owned a matrimonial home so as to evict the wife. Gibbs J, as he then was, said (at 6–7): Once the proceedings are found to be of the kind referred to in para (c) or para (e) of the definition [of matrimonial cause], the court has jurisdiction, and the fact that the husband may be affected in the performance of other duties which do not arise out of the matrimonial relationship, although relevant to the question how the jurisdiction should be exercised, is no ground for holding that the jurisdiction does not exist. His Honour did, however, observe that it certainly is a matter to be taken into account by the court in considering whether it should exercise its discretion in granting an injunction. After this decision of the High Court, the Family Court took a wider view of its powers under s 114.

The wide approach taken by the Family Court was, however, subsequently reversed by the High Court in Ascot Investments Pty Ltd v Harper (1981) 6 Fam LR 591; FLC ¶91-000. It also represented a change in the attitude of the High Court to such [page 578] injunctions. The High Court held that though the court may grant an injunction which is directed to a third party, or which will indirectly affect the position of a third party, it cannot grant an injunction if its effect would be to deprive a third party of an existing right, or to impose on a third party a duty which the third party would not otherwise be liable to perform. In this case, the marriage was dissolved in 1976. The husband was ordered to pay the wife a lump sum of $75,000 and to transfer to the wife by way of security for the payment of that sum all his right, title and interest in the shares registered in his name in Ascot Investments Pty Ltd, a private company. A Master of the Court was appointed to execute a transfer in the event that the husband refused to do so. The husband in fact failed to pay the $75,000 or to execute a transfer of the shares, but the necessary transfers to the wife were subsequently executed by the Master in place of the husband. The shares, however, remained registered in the husband’s name. By its memorandum and articles of association, the company and its directors had the right to refuse to register any transfer of shares. Before any decision by the company or its directors as to whether or not to register the transfer, the wife applied to the Family Court for an order that the company, its servants or agents, register or do all things as were necessary to register the transfer. Three adult children of the marriage were directors of the company, together with the husband. The company was given leave to intervene in the proceedings. The Full Court ordered the company and its

directors to register the transfer of shares. The company appealed to the High Court by special leave. Gibbs J, as he then was, said (at 601): The authorities … establish that in some circumstances the Family Court has power to make an order or an injunction which is directed to a third party or which will indirectly affect the position of the third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform. The general words of ss 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties in the absence of clear and unambiguous words. The court could not make an order which would adversely affect the rights of a third party either by making such an order directly against a third party, or indirectly by ordering a party to the marriage to do or admit any act or thing which would be to the detriment of a third party. The High Court did, however, consider that an injunction can lie directly against a third party where: (a) the third party’s claim is a mere sham; or (b) the third party is completely controlled by one party to the proceedings so that in reality, an order against the third party is an order against the party. Gibbs J said (at 602): The position is, I think, different if the alleged rights, powers and privileges of the third party are only a sham and have been brought into being, in appearance rather

than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely [page 579] controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it. Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it.

Subsequent to the decision of the High Court in Ascot Investments Pty Ltd v Harper, a number of decisions of the Family Court sought to confine the restrictive view taken by the High Court in that case.

In Marriage of Harris (No 2) (1981) 7 Fam LR 515; FLC ¶91-100, the Full Court held that an injunction could lie against a third party who was neither a sham nor a puppet of a party to the proceedings, if the injunction against the third party was interlocutory and not permanent so that the third party could not claim that its rights were extinguished or defeated. In summary, the Family Court took the view that the restrictive approach of the High Court in Ascot Investments did not apply if the

interference of the right or power of the third party was temporary and such right or power was not destroyed or abrogated. The lack of jurisdiction was confined to third party injunctions of a non-interim or non-interlocutory kind.

In Re Ross-Jones and Marinovich; Ex parte Green (1984) 9 Fam LR 888; 56 ALR 609; 59 ALJR 132; FLC ¶91-555, four members of the High Court (Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed) said that the extent of the power of the Family Court to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party had been authoritatively determined by the Ascot Investments case. Gibbs CJ stated (at 898): The court has no wider jurisdiction to grant an interlocutory injunction than to grant a permanent injunction. In this case, the High Court also rejected the approach that a distinction should be drawn between cases in which the third party is a stranger to the parties to the marriage and those in which there is an association of some kind between the third party and one of the parties to the marriage. Gibbs CJ said (at 898): No distinction can, however, be drawn between the position of third parties who are strangers to the parties to the marriage and those who have some relationship or association with one of them. The fact that a third party is, for example, a parent of one of the parties to the marriage does not of itself expand the power of the court. Of course if there is some relationship between the third party and one of the married parties the case might come within one of the exceptions recognized in Ascot Investments Pty Ltd v Harper …

In other words, his Honour intimated that in situations where a relative of a spouse is involved in a transaction likely to defeat the jurisdiction of the court, it may be easier to prove a lack of bona fides.

[page 580]

Expanded powers of the Family Court in relation to third parties under Pt VIIIAA of the FLA 8.143 On 17 December 2004 changes to the FLA commenced which confer on the court power to bind third parties in financial proceedings. The amendments provide the Family Court with powers unimaginable even as recently (in legal years) as 1975. Although the general notion of a matrimonial cause is a proceeding between husband and wife, the reality of modern life is that the financial affairs of husbands and wives include and involve family companies and family trusts, and are intertwined with the financial and property interests of other family members, ‘outsiders’ and creditors. The interests of third parties who have commercial or personal relationships with one or more of the spouses are often liable to be affected by the resolution of the matrimonial dispute. This is so in relation to relatives and family companies closely connected with one or both of the spouses; and also to arm’s-length third parties such as creditors. Of course such power in not unlimited. The jurisdiction to

orders binding third parties to proceedings under s 79 and proceedings under s 114 is to be strictly construed. In other words, there must first be on foot proceedings between the parties to a marriage for relief under s 79 and/or s 114. Those proceedings are a matrimonial cause. What orders can be made in s 79 proceedings? 8.144 Division 2 deals with orders under s 79 of the FLA. Section 90AE empowers the court to make orders: (a) directed to a creditor of the parties to the marriage, to substitute one party for both parties in relation to the debt owed to the creditor; (b) directed to a creditor of one party to a marriage, to substitute the other or both parties in relation to that debt; (c) directed to a creditor of the parties to the marriage, that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made; and (d) directed to a director of a company or to a company, to register a transfer of shares from one party to the marriage to the other. The court is further empowered, in proceedings under s 79, to make any other order that: (a) directs a third party to do anything in relation to the property of a party to the marriage; or (b) alters the rights, liabilities or property interests of a third party.

Some limitations are imposed by s 90AF(3)–(4), which provides that the court may only make any such order if: (a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and [page 581] (b) where the order concerns a debt of a party to the marriage, it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and (c) the third party has been accorded procedural fairness in relation to the making of the order; and (d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and (e) the court is satisfied that the order takes into account the taxation effect (if any) of the order on the parties to the marriage and on the third party; the social security effect (if any) of the order on the parties to the marriage; the third party’s administrative costs in relation to the order; if the order concerns a debt of a party to the marriage, the capacity of a party to the marriage to repay the debt after the order is made; the economic, legal or other capacity of the third party to comply with the order; if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters, then those matters; and any other matter that the court considers relevant.

What orders can be made in s 114 proceedings? 8.145 Division 3 deals with orders and injunctions under s 114 of the FLA. Section 90AF(1)–(2) corresponds with s 90AE, and provides that in proceedings under s 114, the court may: (a) make an order restraining a person from repossessing property of a party to a marriage; or (b) grant an injunction restraining a person from commencing legal proceedings against a party to a marriage; or (c) make any other order or grant any other injunction that directs a third party to do a thing in relation to the property of a party to the marriage, or alters the rights, liabilities or property interest of a third party in relation to the marriage. Again, limitations are imposed by s 90AF(3), which provides that the court may only make an order or grant an injunction of the type described if: (a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and (b) where the order or injunction concerns a debt of a party to the marriage — it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

(c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and [page 582] (d) for an injunction or order under s 114(1) — the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and, for an injunction granted under s 114(3) — the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and (e) the court is satisfied that the order or injunction takes into account its taxation effect, if any, on the parties to the marriage and on the third party; its social security effect on the parties to the marriage; the third party’s administrative costs in relation to the order or injunction; if the order or injunction concerns a debt, the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted; the economic, legal or other capacity of the third party to comply with the order or injunction; if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters — those matters; and any other matter that the court considers relevant. Substantially the same examples as are mentioned in s 90AE in respect of proceedings under s 79 are repeated in s 90AF in respect of proceedings under s 114. Thus s 90AF provides that the court has discretion to make

an order or grant an injunction binding a third party when making an order or injunction under s 114.

Newport and Newport [2017] FamCA 177 before McClelland J concerned an application by the wife for procedural orders and an interlocutory injunction under s 114(3) FLA intended to preserve marital assets pending final hearing of the matter which involved competing applications for both property and parenting orders. Part of the marital assets — at least potentially — were Company M and Company N which were run by the respondent husband with the second respondents. In seeking a discretionary remedy from the court the wife asserted that there was a risk that the husband and second respondents may deal with their business interests in a manner which would diminish or disperse matrimonial property. These orders might be referred to as having the ‘thou shall not’ persona. Therefore the wife sought an injunction to restrain assigning, transferring, disposing of, or in any way dealing with, any of the assets of Company M or Company N except in the ordinary course of business; The terms of the injunction were that the husband and respondents be restrained from: (a) borrowing any moneys from Company M and/or Company N except in the ordinary course of business; (b) assigning, transferring, disposing of, or in any way dealing with, any of the assets of Company M or Company N except in the ordinary course of business; and (c) closing down Company M and/or Company N. [page 583]

There was a second order sought by the wife which would provide her with information as to the financial status of the respondent husband. It is important to bear in mind the absolute need for truthful information in order for the court to make orders reflecting ‘just and equitable’ principles. McClelland J granted the application of the wife by ordering the respondent husband and the second respondents to do certain things — the ‘shall do’ orders. In substance, the second set of orders made by McClelland J provided: (2) The respondent husband shall, within seven (7) days of the date of these Orders, provide to the applicant wife’s solicitors a signed written authority and direction addressed to the Australian Taxation Office (‘the ATO’) authorising the ATO to provide to … and to … the following: (a) the respondent husband’s personal income taxation returns and notices of assessment for the financial years ended 30 June 1998, 30 June 1999, 30 June 2003 and 30 June 2004; and, (b) the taxation returns for the Mr K and Mr Newport Partnership, Mr K and Mr Newport trading as Company M … for the financial years ended 30 June 1998, 30 June 1999, 30 June 2003 and 30 June 2004. (3) The second respondent, Mr K Newport, shall, within seven (7) days of the date of these Orders, provide to the applicant wife’s solicitors a signed written authority and direction to the ATO authorising the ATO to provide to … and to … his personal income tax returns and notices of assessment for the financial years ended 30 June 1998 to 30 June 2016 inclusive.

Other aspects 8.146 Division 4 deals with other matters. Section 90AG of the FLA deals with orders and injunctions binding on trustees, and provides that if an order or injunction binds a person in the capacity of trustee in relation to property, then the order or injunction is also binding (by force of the section) on any person who subsequently becomes the trustee. Thus, its effect is that successive trustees will be bound by orders or injunctions made under Pt VIIIAA. Section 90AH is entitled ‘Protection for a Third Party’, and provides that a third party is not liable for loss or damage suffered by any person because of things done (or not done) by the third party in good faith in reliance on an order or injunction made or granted by a court in accordance with Pt VIIIAA. In this way, it provides third parties with protection from liability for loss or damage suffered by any other person, where the third party is acting in good faith in reliance on a court order or injunction under Pt VIIIAA. Service of documents on a third party is covered by s 90AI, which provides that if a document is required or permitted to be served for the purposes of the Part on a third party, it may be served in any of the ways in which a document may be served under the applicable rules of court, in addition to any other method of service permitted by law. Its effect is that documents should be served in accordance with applicable rules of court or other method of service permitted by law. [page 584]

The expenses of the third party are addressed by s 90AJ, which has the effect that if the court has made an order or granted an injunction in accordance with Pt VIIIAA and a third party has incurred expense as a necessary result, the court may make such order as it considers just for the payment of the reasonable expenses of the third party incurred as a necessary result of the order or injunction. In deciding whether to do so, and subject to what the court considers just, the court must take into account the principle that the parties to the marriage should bear the reasonable expenses of the third party equally. Regulations are authorised to provide, in situations where the court has not made an order, for the charging by the third party of reasonable fees to cover the reasonable expenses of the third party incurred as a necessary result of the order or injunction; if such fees are charged, that each of the parties to the marriage is separately liable to pay to the third party an amount equal to half of those fees; and for conferring jurisdiction on a particular court or courts in relation to the collection or recovery of such fees. Section 90AK provides that the court must not make an order or grant an injunction under Pt VIIIAA if the order or injunction would result in the acquisition of property from a person other than on just terms, and be invalid because of para 51xxxi of the Constitution. Problem question Betty and William were married in 2002 and separated in 2016. There are no children of the marriage but Betty has been pregnant and has miscarried four times. The matrimonial home is a lovely old house in Newtown. It was bought for $422,000

soon after the marriage. The purchase money was a combination of equal gifts from both Betty’s and William’s families. The house was very badly run down but, over the years, Betty and William have turned it into one of the most beautiful houses in Newtown — a very wealthy area of Geelong. William is a highly skilled carpenter who, in 1996, moved into the property development area with his brother Colin. At first, business was slow, but both William and his brother were hard working and frugal. Since 1999, the business, called Building Skill Pty Ltd (BS), has prospered. William and Colin each own 50 per cent of the issued shares. William also has a substantial superannuation policy funded by BS. While William’s main role throughout the marriage has been running the business (sometimes seven days a week), he and Betty always spent at least one day each month helping Betty’s mother on her small lavender farm on the outskirts of Queenscliff. Betty is an only child and she and William often joked about ‘their future life growing lavender’. Neither was entirely sure whether the other was joking. Early in the marriage, Betty worked as a school teacher and her wage was vital in keeping the household. When the business began to provide a very comfortable income, Betty resigned from her position as a school teacher. She was expecting their first child, but miscarried after four months. Betty became pregnant on three more occasions, but despite medical help and months of bed rest, on each occasion miscarried. Betty has always been an excellent homemaker, but in addition she has provided clerical assistance to the business, and entertained business clients in the [page 585] matrimonial home on many occasions. William and Colin have

many times thanked her for this help but never offered to pay her. Last year BS employed an administrator (Dervla Donnegan) and since that time Betty has not felt welcome at the offices of BS. She blames Dervla, in part at least, for the breakdown of the marriage. While BS has been a very successful company, the approach taken by William and Colin has been to plough the majority of profits back into the business. BS has recently moved into new premises which cost $950,000. No mortgage was necessary. William and Betty have very few assets in their own names — the exception being the matrimonial home now worth $1.2 million (in joint names) and a block of land next door to the lavender farm registered in William’s name only. Betty has recently learned that this land has been sold to Dervla for half of its estimated value of $412,000. Since the separation Betty’s mother has died, leaving the lavender farm to Betty but no money. Betty’s mother has willed all her money and an old mansion to ‘Poet’s Heaven’ (a charitable organisation) for the ‘enjoyment of poets and poetrybesotted adults of independent means’ who may wish to live there. Betty approves of this. William thinks that Betty should live there, and has offered her a settlement of $400,000 ‘if you make up your mind quickly and have no solicitors involved’. Betty wants to stay in her own home and is very unhappy with William’s attitude to the matrimonial settlement. She is concerned that she should share in the assets built up during the marriage. In her view, the assets clearly include the business assets, and the property sold to Dervla. William maintains that the assets of BS belong solely to Colin and himself. He refuses to discuss the issue of the land sold to Dervla. He has said to Betty, ‘I want the whole thing over and done with, and I don’t want you turning up for a maintenance cheque every month. Dervla won’t have it, and if Derv is not happy, I can’t be’. Advise Betty as to the likely outcome of an application for a

property division and maintenance to the Family Court of Australia. (You are not required to make mathematical calculations in the course of providing your advice. Instead, you may indicate the likely financial outcome in percentage terms.)

Suggested answer Jurisdiction The Family Court has jurisdiction as the proceedings constitute a ‘matrimonial cause’ pursuant to s 4(1)(ca) of the FLA. The proceedings are between parties to a marriage with respect to their property and are in relation to the dissolution of that marriage. Section 79(1) indicates that the court may make such orders as it considers necessary and appropriate. However, s 79(2) confirms that the court cannot make orders unless it is satisfied that in all of the circumstances it is just and equitable to do so. In Stanford v Stanford [2012] HCA 52 a four-step process was employed in the consideration of applications for property settlement. Pursuant to Marriage of Hickey (2003) 30 Fam LR 355 at 357; FLC ¶93-143 at 78,386, the steps are as follows: 1.

First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. [page 586]

2.

Second, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a)– (c) and determine the contribution-based entitlements of the

parties expressed as a percentage of the net value of the property of the parties. 3.

Third, the court should identify and assess the relevant matters referred to in s 79(4)(d)–(g) (‘the other factors’) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contributionbased entitlements of the parties established at step two.

4.

Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.

Stanford neither approves nor disapproves of the findings in Hickey but the High Court (at [37]–[40]) intimated that the application of s 79 is as follows: First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to ‘altering the interests of the parties to the marriage in the property’ (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth [[1956] HCA 71; (1956) 98 CLR 228 at 231–2], Dixon CJ observed that a power to make such order with respect to property and costs ‘as [the judge] thinks fit’, in any question between husband and wife as to the

title to or possession of property, is a power which ‘rests upon the law and not upon judicial discretion’. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong [[1976] HCA 39; (1976) 136 CLR 248 at 257]: The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.

Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that ‘[c]ommunity of ownership arising from marriage has no place in the common law’ [Hepworth v Hepworth (1963) 110 CLR 309 at 317]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be ‘decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses’ [Hepworth at 317]. The question presented by s 79 is whether those rights and interests should be altered. Third, whether making a property settlement order is ‘just and equitable’ is not to be answered 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

[page 587] marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’ [R v Watson; Ex parte Armstrong [1976] HCA; (1976) 136 CLR 248 at 257]. To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. [some footnotes omitted] From this judgment we understand the High Court confirmed that the ‘just and equitable’ requirement is a separate and distinct step in the application of s 79. Aldridge J in Demara and Montijo [2013] FamCA 612 at [101] said the court is required to determine the following matters: having regard to the breakdown of the marriage, if any, is it just and equitable to consider whether the alteration of the parties interests in their property is just and equitable the assets, liabilities and financial resources of the parties to the marriage all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by

reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order. Step 1: Just and equitable To first establish whether it is just and equitable to alter the parties’ interest in property you must first determine whether the parties have had a shared life and intermingling of property and whether or not there has been a breakdown. Step 2: What is the pool of assets available for distribution? Joint property The facts indicate that the former matrimonial home, purchased for $422,000 and presently valued at $1.2 million, was registered in joint names. Individual property William owns 50 per cent of the issued shares in BS; however, given that it is a proprietary company it is likely that the issued share capital has a nominal value of $1 per share. Share capital of this value being added to the asset pool will be of limited significance. Nevertheless, on paper, the share capital represents William’s control over 50 per cent of the business assets. The facts indicate that BS owns considerable business assets. If this 50 per cent shareholding was brought into the pool of assets available for distribution, and William was required to transfer a proportion of these shares, this might not benefit Betty. Her control of a proportion of the business assets is not likely to lead to any return either in the form of dividends or sale

of assets, as BS has always reinvested profits and Betty would not have a [page 588] majority vote. At any rate, following the test in Ascot Investments Pty Ltd v Harper (1981) 6 Fam LR 591; FLC ¶91-000, if William refuses to transfer shares in BS, it is unlikely that the court can require the company to do so. Betty would therefore be seeking to have the business assets, rather than the shares, coming within the asset pool. Betty has inherited the lavender farm from her mother. An asset acquired after separation may be taken into account in s 79 proceedings as the asset is ‘property’ of one of the parties to the marriage: s 4(1). Unless the facts show otherwise, William should have approximately $206,000 in his possession from the so-called sale of the block of land to Dervla. William has a substantial superannuation policy. Pursuant to s 90MC, superannuation is to be treated as property for the purposes of s 4, para (ca) regarding the definition of matrimonial cause. Financial resources William’s control of 50 per cent of BS’s business assets and Betty’s lavender farm may also be considered financial resources. Property held by a third party For property held by a third party to be included in the asset pool, there must be a sufficient nexus between the property and the marriage. Betty could argue that the assets of BS should be included on the basis of Kennon v Spry; Spry v Kennon [2008]

HCA 56; and Ascot Investments Pty Ltd v Harper; Re RossJones and Marinovich; Ex parte Green (1984) 9 Fam LR 888; 56 ALR 609; 59 ALJR 132; FLC ¶91-555. She would argue that BS’s assets are in reality William’s assets and the company is merely his puppet. As such, the facts satisfy the second exception to the rule that the court has no power under s 114(1) to deprive a third party of existing rights. However, this argument is likely to be rejected as there is not sufficient indication on the facts that William does control BS, as Colin’s role is not clear and each owns 50 per cent of the issued share capital. In the event that Betty’s argument is unsuccessful, she could argue that the share capital represents a considerable financial resource available to William. The dissipation of assets through post-separation disposition is a matter for consideration by the court: Marriage of Kowaliw (1981) 7 Fam LN N13. The block of land which was registered in William’s name only would have been considered as part of the divisible property had it not been sold to Dervla for half of its estimated value of $412,000. Not only does it come within the definition of s 4(1), but also further facts may indicate that some of Betty’s wages were contributed to the purchase price or that it was purchased during the marriage when she was making significant homemaker contributions. Pursuant to s 106B(1), Betty can argue that the sale of the property should be set aside on the basis that the disposition was likely to defeat a property order of the court. While the court is required by s 106B(3) to have regard to the interests of a bona fide purchaser or interested party, Dervla is unlikely to be considered a bona fide purchaser given that she paid substantially less than market value. Betty will [page 589]

be considerably aided by the provisions of s 106B. If Dervla is found to have been in collusion with William, she may have to pay the relevant costs of Betty. This is a matter for the court to decide. Step 3: What contributions were made by the parties to the pool of assets? Direct and indirect, financial and non-financial contributions are to be taken into account, including those made during the period of the marriage but also initial contributions to the marriage. Financial contributions: s 79(4)(a) Financial contributions refer to the acquisition, improvement or conservation of any property of the parties through the expenditure of gifts, savings or wages. The purchase price for the former matrimonial home was a combination of equal gifts from Betty and William’s families. Generally such gifts are regarded as direct financial contributions on behalf of the party whose family made the gift: Marriage of Gosper (1987) 11 Fam LR 601; FLC ¶91-818. The significance of these initial contributions will be eroded as the years of cohabitation accumulate and by later contributions of the other party: Marriage of Crawford (1979) 5 Fam LR 106; FLC ¶90-647; Marriage of Bremner (1994) 18 Fam LR 407; (1995) FLC ¶92-560; Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595. William worked full-time throughout the marriage, sometimes seven days per week, contributing financially to the upkeep of the home, with the remaining profits ploughed back into the business. Betty’s wage as a school teacher was vital in keeping the household until 1993 and enabled William to establish the business.

Direct financial contributions to the improvement and conservation to the home were likely to have taken place, given that it was in some disrepair on purchase and is now valued at $1.2 million. William’s possible wastage of matrimonial assets As noted above, Betty may argue that William’s action in selling the block at less than its real value was simply a ploy to deprive Betty and defeat the jurisdiction of the court. Thus, the financial loss should not be shared equally as William behaved ‘wantonly and recklessly’ with the asset and not in the pursuit of ‘matrimonial objectives’: Marriage of Kowaliw; Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC ¶92-569; Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC ¶92-652; Marriage of Rickaby (1995) 19 Fam LR 814; FLC ¶92-642; and generally Marriage of Kennon (1997) 22 Fam LR 1; FLC ¶92-757. Non-financial contributions: s 79(4)(a)–(c) Non-financial contributions include the labour expended by a party to the acquisition, improvement or conservation of any property of the parties. Such contributions also include tasks undertaken for the welfare of the family including homemaker contributions for which there is no need to establish their connection to any property. The facts tend to indicate that Betty and William have both made non-financial as well as financial contributions to the former matrimonial home given that it is now one of the most beautiful homes in Newtown. [page 590] William’s entitlement to share in the lavender farm depends on whether the property existed during the marriage and whether he financially contributed to the acquisition, conservation or

improvement of that property. There is no evidence of such a contribution. Both parties, however, made direct non-financial contributions by assisting at least one day per week at the lavender farm which has now been left to Betty, and thus account should be taken of William’s non-financial contributions: Marriage of James (1978) 4 Fam LR 401; FLC ¶90-487. It is not certain that William ‘always expected the property to be inherited’ by Betty; however, he does have a reasonable argument that this is so: Marriage of James. Betty is regarded as an excellent homemaker and had foregone her career in order to perform the homemaker and parental role on the understanding that she would be able to have children. Similar to Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC ¶92-108, Betty provided indirect non-financial contribution to the acquisition or improvement of the business assets in the manner of unpaid assistance to BS. She undertook clerical work and entertained business clients in the former matrimonial home on many occasions, which displayed an unquestionable support for the business. Step 4: Application of the division of property principles — assessment of contributions In Marriage of Mallet (1984) 9 Fam LR 449; FLC ¶91-507, the High Court held that there is no presumption of equal division of assets. However, Marriage of Doherty indicates that if both parties make substantial contributions in the ordinary range, made in light of a joint expectation, with the normal domestic assets and the marriage has lasted a reasonable time, then the court is likely to hold that equality is equity. The process of assessing contributions can either be made in respect of the totality of the property, which is the global approach, or on an asset-by-asset approach: Marriage of Norbis (1986) 10 Fam LR 819; FLC ¶91-712. In the majority of situations, the global approach is considered the more

appropriate: Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC ¶92-335; Marriage of Davut and Raif (1994) 18 Fam LR 237; FLC ¶92-503. However, the asset-by-asset approach has been considered more appropriate if an inheritance has been received after separation: Marriage of Zyk (1995) 19 Fam LR 797; FLC ¶92-644. It has also been applied where the husband’s business acumen and inheritance was the substantial reason why the business existed and this outweighed the wife’s indirect contributions: Marriage of Lenehan (1987) 11 Fam LR 615; FLC ¶91-814. On the facts given here, either approach may be applied, in light of the information that there is an inheritance and possibly substantial business assets to consider. However, Betty may argue that while William and Colin were hardworking and frugal, William does not have the special business acumen which led to the adoption of the asset-by-asset approach in Lenehan. Further, the preference for the global approach expressed in Ferraro is more persuasive. Mason J in Mallet indicated that the respective contributions are to be judged by reference to their own sphere. Further, homemaker contributions are to be recognised not in a token but in a substantial way: Ferraro. In this regard, the length of the marriage has been considered an important factor: Marriage of Dawes. [page 591] Taking the global approach, we will first consider the distribution of assets if the business assets are not included in the property pool. Given that the assets are beyond ordinary domestic assets, the approach in Marriage of Doherty would probably not be followed. Over a period of 14 years, both parties made financial and non-financial contributions to the family home, and

non-financial contributions to the lavender farm which Betty now contributes to the pool of assets. Although William worked fulltime, his efforts cannot be said to have produced significant assets available for distribution and therefore, unlike in Marriage of McLay (1996) 20 Fam LR 239; FLC ¶92-667 and Ferraro, he has not made ‘high range’ contributions. On the other hand, there is some indication that Betty made contributions beyond the normal range, given that she is an excellent homemaker. Betty worked for several years prior to the establishment of BS and then continued her role as homemaker. Further, given that William has effectively wasted $206,000, Betty could argue on the basis of Marriage of Farnell (1996) 20 Fam LR 513 at 532; FLC ¶92-681 that where ‘moneys have been clearly wasted by a party on a frolic of their own … it might be entirely appropriate for the court to bring the moneys back into circulation’: Marriage of Kowaliw; Marriage of Townsend; Marriage of Doherty. Alternatively, if it is not notionally added into the pool of property to be divided, then some adjustment could be made pursuant to s 75(2)(o) in respect to moneys received for property accumulated in the course of the marriage. Application of the global approach indicates that while William’s contributions to the improvement of the lavender farm are to be taken into account pursuant to s 79(4)(b), given the wife’s high range contributions to the assets and homemaker contributions pursuant to s 79(4)(c), and either a notional addition of $206,000 to be allocated to William or consideration of William’s negative contributions, the property pool should be distributed approximately 55:45 per cent in favour of Betty. This conclusion reflects substantial rather than token recognition of the performance of the wife in the sphere of homemaking being recognised as ‘extra contributions’: Marriage of Ferraro. If the business assets are included in the property available for distribution, this potentially establishes a pool of medium to high range assets. In such a case, the contributions of the parties to the business assets, particularly William’s contributions, will also

have to be considered in the global approach. As in McLay, Betty and William had modest assets at the beginning of the marriage. If the property is in the medium range, as in Marriage of Stay (1997) 21 Fam LR 626; FLC ¶92-751 which concerned assets totalling $3.7 million, it is possible that William’s business skills will not be recognised as a special contribution. A decision equally favourable to Betty’s settlement is Marriage of Harris (1991) 15 Fam LR 26; FLC ¶92-254 where the assets of a 24year marriage amounting to $1 million were divided equally, indicating the greater societal recognition of the worth of domestic labour. Further, in Marriage of Dawes assets of $1 million almost entirely built up by the business skills of the husband were divided equally. However, this was a 30-year marriage where parental responsibilities were also borne by the wife. Nevertheless, Betty has made some contribution to the business assets which must be given significant weight: Dawes. On this basis, Betty would be likely to gain an equal division of the pool of assets. [page 592] If, on the basis of the contributions, the court comes to the conclusion that the amount awarded by reference to contributions alone fairly and amply meets the needs of that party, then there is no need to make a further adjustment on the basis of the additional factors: Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC ¶90-897; Marriage of Lee Steere (1985) 10 Fam LR 431; FLC ¶91-626; Marriage of Dawes; Marriage of Davut and Raif. Additional factors s 79(4)(d)–(g) — future needs of the parties Irrespective of the contributions made by each of the parties, the court may make a further adjustment on the basis of present and future circumstances. On either of the above scenarios, there is

likely to be a further adjustment in Betty’s favour. Section 79(4) (d) provides consideration of the effect of any proposed order on the earning capacity of either party. Section 79(4)(e) imports s 75(2) considerations. Section 75(2)(b) — financial resources and capacity for gainful employment as additional factors Assets acquired by a party since separation and financial resources which are not property at all, such as superannuation and income-earning capacity, are to be considered at this point. The additional factors of s 79(4)(d)–(g) must be distinguished from the spousal maintenance factors. Although they relate to future needs, they are nevertheless part of the property adjustment and they do not have to satisfy the threshold in s 72: Marriage of Lee Steere; Marriage of Ferraro; Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595. BS assets William’s 50 per cent interest in a prospering and wellestablished company, through which he is securely employed, is an important additional consideration as it is a significant financial resource. His career and income are stable and permit access to considerable business assets and large profits. Betty’s career as a teacher and the lavender farm — the financial impact The years Betty devoted to domestic activity will have reduced her future earning capacity or so limited her chances to resume work as a teacher as to call for a capital adjustment on a property order by reason of s 75(2)(k), namely the duration of the marriage given that she ceased her career 11 years ago, and s 75(2)(j), as Betty’s income enabled the establishment of BS. Betty will be required to undertake retraining if she is to return to her career as a teacher with the possibility of a limited income during that period.

The lavender farm is relevant to Betty’s future needs as it provides a potential source of income: Marriage of Bonnici (1991) 15 Fam LR 138; (1992) FLC ¶92-272. However, it is only a small farm, and we have no information as to the prosperity of this business or whether Betty has the capacity to earn a living from it. In light of William’s significant and established financial resource in BS and the additional factor of Betty’s retraining or establishing an income from the lavender farm, as in Marriage of Stay, the likely adjustment is 5 per cent in Betty’s favour on the basis of future needs if the business assets are included as divisible property, and 10 per cent if they are excluded. [page 593] William’s superannuation The superannuation splitting laws in Pt VIIIB of the FLA pursuant to s 90MT in accordance with s 90MS give the court power to split superannuation benefits, payable under a superannuation interest to one or both of the spouses, in family law property settlements. See Benson and Benson [2017] FamCA 365. Assume that William has an accumulative interest in a superannuation fund and the value in accordance with the regulations is $1 million. If the court decides that the split of all the assets should be 45 per cent to William and 55 per cent to Betty, an order will be made splitting the amount so that William receives $450,000 and Betty $550,000. Maintenance While one of the objects of the property provisions is to finalise the economic relationship between the parties as far as practicable (s 81), s 72 indicates that a party may be liable to maintain his or her spouse. The requirements of s 72 indicate

that Betty will only secure maintenance to the extent William is reasonably able to provide it, and if she is unable to support herself by reason of any factor in s 75(2). In making orders as to maintenance, the court is required to consider the property orders that they have made: Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600 — see Chapter 7. Having considered the requirements of s 72, the court must also consider the guiding principle — whether spousal maintenance will do justice: s 74. Bevan indicates that the concept of ‘adequate support’ is the standard, and as such pre-separation lavishness is not automatically the standard but neither is subsistence living: applied in Mitchell. Further, Betty is not required to use up assets and capital to satisfy this requirement of ‘adequate support’: Marriage of Mitchell (1995) 19 Fam LR 44; FLC ¶92601. Despite s 81, Bevan makes it clear that this duty is subject to s 74. Therefore, an argument is available to Betty that William should be required to provide maintenance until the lavender farm is able to provide her with an adequate income or she is able to complete retraining as a teacher: s 75(2)(f). On the basis of Bevan, it could be argued that spousal maintenance in such circumstances is more likely to do justice between the parties as opposed to a further adjustment to the lump sum property settlement for disparity in income. Although the circumstances are different from those in Bevan, Betty has a diminished work capacity and William has capacity to pay. Without a period of retraining, Betty is unlikely to be able to regain employment: s 75(2)(j) and (k). Alternatively, William may argue that the property adjustment on the basis of additional factors adequately provides for Betty. Betty is not like the wife in Bevan, as she is not lacking in the capacity to work due to illness and could find alternative employment while completing retraining or gain alternative

income from the lavender farm. If retraining is minimal or gaining an income from the lavender farm is immediate, in light of s 81 and given that Betty’s monetary situation is not acute and she has no dependants (s 75(2)(c) and (e)), spousal maintenance is unlikely. However, should a period of retraining be required and maintenance would increase income-earning [page 594] capacity (s 75(2)(h)), given that Betty made significant contributions in establishing William’s earning capacity and financial resources (s 75(2)(j)), it is likely that some measure of maintenance will be ordered. Orders Betty would seek a lump sum order pursuant to s 80(1)(a). This could be awarded in one payment or instalments, particularly if it would prevent the sale of BS to adhere to the order: Marriage of Lee Steere. The order must specify the extent to which this lump sum is for the provision of maintenance or maintenance may be ordered in a separate periodic sum: s 80(1)(b). Step 5: Will the orders being sought be considered just and equitable? This final step requires the judicial officer hearing a matter under s 79(1) to in effect ‘step back’ and look at the reality of the division. For example, is the nature of the assets as divided most suitable in form or nature when applied to the day-to-day life of each party?

Further discussion

1.

What essential steps does the Family Court take when considering an application under s 79 of the FLA?

2.

What implications arise from an ‘intermingling of assets’?

3.

Why has the Family Court shown a reluctance to link notions of misconduct with the assessment of contributions under s 79(4) of the FLA?

4.

The majority of judges in Marriage of Kennon (1997) 22 Fam LR 1; FLC ¶92-757 stated in relation to violence within the family that there had been a ‘veil of silence’ cast over it. Discuss.

[page 595]

9 Financial Disputes Between De Facto Partners1 Families are the building blocks of society, facilitating generational renewal, human interaction, and linking individuals to wider society as a whole. Relationships are closely linked with wellbeing, with families playing a key role in socialising children and shaping the future of society. Changing patterns in divorce and cohabitation over recent decades have resulted in differences in family structure; however families still remain a basic unit in society. While the rate of marriages registered in Australia each year has remained relatively stable in recent years, Australians have been marrying at an older age, and delaying having their first child until later in life. More Australians are in de facto relationships, and more are choosing non-religious ceremonies if they do decide to marry … In 2009–10, 11 per cent (1.9 million) of Australians aged 18 years and over were living in a de facto relationship, while 53 per cent were in a registered marriage … De facto relationships include those living in a same-sex relationship and in 2009–10 there were around 46,300 people living in a same sex couple. The majority of these couples had no children.

Love Me Do, Australian Social Trends, March Quarter 2012, Cat no 4102.0, Australian Bureau of Statistics

Introduction Principles applicable to the division of property between de facto spouses 9.1 Under s 51 of the Constitution, the Commonwealth Parliament was given power to make laws with respect to ‘(xxi) Marriage; (xxii) Divorce and matrimonial [page 596] causes; and in relation thereto parental rights and the custody and guardianship of children’. This power relates squarely with notions of ‘de jure’ marriage. In contrast, the meaning of the term ‘de facto’ in law depends on the context in which it is used and the jurisdiction in which it is applied. Generally, the phrase was used to signify the exercise of power despite an absence of strict legal authority. The term ‘de facto’ contrasts with ‘de jure’ which signifies the presence of all necessary legal characteristics. In this chapter, we use the term ‘de facto’ to describe a relationship between individuals which is close, intimate and cooperative and in many respects is a mirror image of a legal marriage. Such relationships include heterosexual and same-sex couples. Many people in Australia live together in marriage-like relationships without formalising the relationship through a

marriage ceremony with a registrar, celebrant or minister of religion.

Couples in Australia 9.2 The Australian Bureau of Statistics (ABS) states that people are now more likely to be in a de facto relationship than in the past. Around three-quarters of people who married in the new millennium lived together beforehand. In contrast, just 3 per cent of people who married in the 1960s (and are still married) lived together first. According to the 2011 census, there were around 33,700 same-sex couples in Australia, with 17,600 male same-sex couples and 16,100 female same-sex couples. Same-sex couples represented about 1 per cent of all couples in Australia. At the time of publishing this book the 2016 census data was not yet available. It is likely that the number of couples ‘residing in the same household who share a social, economic and emotional bond usually associated with marriage and who consider their relationship to be a marriage or marriage-like union will increase compared to the 2011 census’ (ABS ‘Couples relationship’ definition).

Contrast between de jure and de facto relationships 9.3 With the amendment of the Family Law Act 1975 (Cth) (FLA) and various state and territory legislation relating to the adjustment of property rights, the contrast between de

jure and de facto relationships has come down to the notion of a ‘legal marriage’. For instance marriage, as defined in the Marriage Act 1961 (Cth) at s 5, means ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. A de facto relationship has been defined to mean a marriagelike relationship (other than a legal marriage) between two persons. The FLA at s 4AA goes further to define a de facto relationship as one where two people are not legally married to each other, they are not related by family and, having regard to all the circumstances of their relationship, they have a relationship as a couple [page 597] living together on a genuine domestic basis. This definition will be discussed in detail in this chapter.

Overview of legislative schemes and factors relevant to property distribution 9.4 Prior to November 2008, there were constitutional limits which did not permit the Commonwealth to pass laws in relation to financial matters arising out of the breakdown of a relationship. Jurisdiction in this area was held by the states and territories which all introduced legislation to deal with de facto property distribution on a relationship breakdown. The legislative schemes are as follows: Domestic Relationships Act 1994 (ACT);

Property (Relationships) Act 1984 (NSW); De Facto Relationships Act 1991 (NT); Property Law Act 1974 (Qld); De Facto Relationships Act 1996 (SA); Relationships Act 2003 (Tas); Relationships Act 2008 (Vic); and Family Court Act 1997 (WA). 9.5 This changed when the majority of states referred their power to the Commonwealth, in relation to de facto couples. Power was referred pursuant to s 51(xxxvii) of the Commonwealth Constitution. All states, apart from South Australia and Western Australia, referred their power prior to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) being assented to. The Family Law Amendment (De Facto Financial Matters and Other Measures) Act was assented to in November 2008 and came into effect on 1 March 2009 for all the original referring states and territories and as of 1 July 2010 for South Australia following South Australia’s referral of power after the assention of the Act. This Act amended the FLA by inserting a new part, Pt VIIIAB. Many of the provisions in this part mirror those in Pt VIII. Part VIIIB, which relates to superannuation splitting, was also amended to extend to de facto couples. A further amendment was made to s 90TA which uses a schedule that replicates Pt VIIIAA: this relates to orders and injunctions binding third parties. Seven years prior to the referral of powers in respect of de facto relationships Western Australia had enacted its own

legislation. Western Australian cases may be a useful source of jurisprudence. Western Australia remains the only state not to have referred its power in respect of de facto property division. [page 598] The following table provides a summary of the operative property settlement sections in both Pt VIII and Pt VIIIAB: Pt VIII s 75(2) s 78 s 79 s 79A ss 79B–79E s 79F s 79G s 79H s 79J s 80 s 81

Description Other circumstances Declarations of interests in property Alteration of property interests Setting aside property adjustment orders Proceeds of crime provisions Notifying third parties Notifying bankruptcy trustee Notifying court about bankruptcy Notifying non-bankrupt spouse of bankruptcy General powers of court Duty to end financial relations

Pt VIIIAB s 90SF(3) s 90SL s 90SM s 90SN ss 90VA–VD s 90SO s 90SP s 90SQ s 90SR s 90SS s 90ST

In essence, Pt VIIIAB provides that parties to a de facto relationship breakdown are able to: seek declaratory relief in relation to their relationship and its property;

seek maintenance orders and property adjustment orders; seek superannuation splitting; and enter into financial agreements. Courts with jurisdiction under Pt VIIIAB are the Family Court of Australia, the Federal Circuit Court of Australia, the Supreme Court of the Northern Territory, and courts of summary jurisdiction in a referring jurisdiction. The amendments to the FLA apply in territories by virtue of s 122 of the Constitution. Refer to ss 31(1)(aa), 39A and 39B of the FLA. For a de facto property matter to be instituted under the provisions of the FLA, either party must be an Australian citizen, ordinarily resident in Australia or present in Australia on the day the application is filed: s 39A. Provided proceedings fall within the definition of a de facto financial cause (s 4) and proceedings can be instituted, the state and territory statutes, the common law and equity can no longer be relied on. The definition of a de facto financial cause will be discussed in detail later in this chapter. Section 90SM(8) allows a deceased party’s legal representative to continue with an application where that application was on foot prior to the death of the deceased: Watson and Ling [2013] FamCA 57. Where Pt VIIIAB does not apply, parties must continue to rely on the relevant state or territory legislation. [page 599]

Aitken and Deakin [2010] FMCAfam 35 is a case where the Act was not found to apply. McGuire FM, after considering the law and the evidence in the case, dismissed property proceedings brought under Pt VIIIAB of the FLA, finding that the parties’ de facto relationship had broken down (in that case, under the one roof) prior to the commencement of Pt VIIIAB on 1 March 2009. Where a de facto relationship is found under the Act, the division of property is treated in a similar way whether the parties are married or in a de facto relationship. Refer to the decision of FM Turner in Howlett and Pike [2010] FMCAfam 845.

In Jonah and White [2011] FamCA 221 Murphy J said that the jurisdictional factors required to declare a de facto relationship are found in s 4AA of the FLA. Murphy J (at [69]) held that the parties were not in a de facto relationship: … a number of other indicia point, in my view, to the opposite conclusion: Each of the parties kept and maintained a household distinct from the other; In the respondent’s case, that household involved the maintenance of family relationships, including the support of children; The evidence does not reveal any relationship, or any intended relationship, between the applicant and the respondent’s children who, it ought be observed, were relatively young when the relationship commenced; The relationship between the applicant and the respondent was clandestine and the time spent between the parties was spent (on either party’s case)

very much together, as distinct from time spent socialising as a couple; I accept the respondent’s evidence that he continued to emphasise the limits of the relationship with the applicant and, in particular, I accept his evidence to the effect that, he told the applicant that, if circumstances ever required him to ‘make a choice’, he would ‘choose’ his wife and family over the applicant; Despite the regular monthly payments and the payment of $24,000 earlier referred to, the parties maintained no joint bank account; engaged in no joint investments together; and acquired, or maintained, property in their own individual names; The parties rarely mixed with each other’s friends. In that respect the evidence of the applicant’s witnesses — Ms R, Ms H and Ms W — is indicative of very little contact between the respondent and each of them. Ms R said she had never met the respondent, but had spoken to him on the phone. Ms H said her dealings with the respondent were ‘very limited’. Ms W said she met the respondent ‘only once’; The respondent ran what seems to have been a successful business, in which for some (early) years, the applicant was employed, but the parties did not mix with the respondent’s business associates. After the applicant’s employment with that business had ceased she had no involvement with it at all; There was virtually no involvement by the respondent in the applicant’s life in Brisbane (where she lived between about 1996 and 2006), and virtually no involvement by the respondent in the applicant’s life in S where she has resided since 2006. (I accept the

respondent’s evidence that he has visited S on only three occasions); [page 600] The respondent accepted that he hoped that the relationship with the applicant was permanent, but, I accept, he made plain its nature as he perceived it. It was put by Mr Galloway to the respondent that the parties were in a long-term relationship to which the respondent replied ‘we were in a relationship; we were having an affair’; There was very little time spent by the applicant and the respondent with the applicant’s family. I regard the evidence of the respondent, when he said to the applicant’s mother that their relationship ‘was not an adventure’ as being more reliable than the evidence contained at paragraphs 36 and 37 of the applicant’s affidavit. But, in any event, I do not consider that the evidence contained in those paragraphs is indicative of the ‘coupledom’ or ‘merger’ to which I have earlier referred; Despite (or, perhaps, because of) the evidence filed by friends of the applicant in support of her case, I do not accept that the applicant and respondent had a ‘reputation’ as a couple; indeed, there was, on the evidence before me, very few public aspects to their relationship. See also Jonah and White [2012] FamCAFC 200; Fenton and Marvel [2013] FamCAFC 132 at [52] per Murphy J. Also refer to Calder and Cheffer [2013] FCCA 1812 in which Turner J found on the evidence that the relationship between the parties lacked the essential indicia of a de facto partnership in

that it lasted 18 months only. Accordingly, the matter was dismissed for lack of jurisdiction.

9.6

Section 90RC of the FLA states: Relationship with State and Territory laws De facto financial provisions (1) In this section: de facto financial provisions means the following provisions: (a) this Part; (b) Part VIIIAA (as applied by section 90TA); (c) Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship; (d) subsection 114(2A). State and Territory laws do not apply to financial matters (2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law: (a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).

[page 601]

Note 1: If, for example, both this Part and a law of a nonreferring State deal with the distribution of property between the parties to a de facto relationship that has broken down after the commencement of this section, then the parties can only seek to distribute the property under this Part. Subsection (2) has the effect of preventing the parties from seeking to distribute the property under the State law. Note 2: For de facto relationship, see section 4AA. Exception — insufficient link to a participating jurisdiction or Division 2 not applicable because of section 90SB (3) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if: (a) a court cannot make an order under this Part in relation to that financial matter because of section 90SB, 90SD or 90SK; and (b) there is no Part VIIIAB financial agreement that is binding on the parties dealing with that financial matter. Example 1: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction. Subsection (3) has the effect that State law will govern financial matters arising out of the breakdown of their relationship. Example 2: Cleo and Dan are parties to a de facto relationship that has broken down after the commencement of this section. Early in their relationship, they made a financial agreement under the law of a non-referring State, but later spent most of their relationship in a participating jurisdiction. Cleo and Dan now have a sufficient geographical link with a participating

jurisdiction for either of them to apply for an order under this Part in relation to financial matters arising out of the breakdown of their relationship. This means that subsection (3) will not apply and that their financial agreement will not be enforceable under State law because of subsection (2). However, their financial agreement will be enforceable under this Part as a Part VIIIAB financial agreement (see section 90UE). Exception — laws facilitating this Act (4) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory to the extent that the law facilitates the operation of this Act. Note: This Part is not intended to apply to the exclusion of, for example, a State law that deals with superannuation entitlements by acknowledging superannuation splitting under Part VIIIB of this Act. Exception — prescribed State or Territory laws (5) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection.

The court has the power to declare whether or not a relationship existed: s 90RD. Once a declaration is made it has the effect of a court order: s 90RE. [page 602] Any party to the proceedings including a party to the de facto relationship or a third party may seek a declaration of the

relationship: s 90RF. As stated earlier in this chapter there may be a number of matters being heard contemporaneously where a party to a de facto relationship is also married to someone else at the same time and is a party to a property settlement dispute. If this were the case the court may see a party to the de facto relationship seeking a declaration of the relationship while the spouse of the other party may be seeking a declaration that the relationship did not exist. To determine whether the FLA or state laws apply, the following questions must be asked: Is there a de facto relationship? Is there a de facto financial cause? When did the parties separate? Is there sufficient connection to a participating jurisdiction?

Evidence of the existence of a de facto relationship 9.7 The question of whether a couple are living together as de facto partners on a bona fide domestic basis may be assessed by reference to a set of ‘indicative factors’ adapted from the Family Court decision by Powell J in Roy and Sturgeon (1986) 11 Fam LR 271 at 274; DFC ¶95-031 at 75,364: (a) the duration of the relationship; (b) the nature and extent of the common residence; (c) whether or not a sexual relationship existed; (d) the degree of financial interdependence and any arrangements for support, between or by the parties;

(e) the ownership, use and acquisition of property; (f) the procreation of children; (g) the care and support of children; (h) the performance of household duties; (i) the degree of mutual commitment and mutual support; (j) reputation and ‘public’ aspects of the relationship.

This is not, of course, an immutable list, and in particular cases other factors may be of importance. As with a de jure marriage, the nature and quality of a particular relationship may change and develop over time. Nevertheless, where there has been a long-term merging of lives and resources, the list is useful in pinpointing the time when the relationship assumed a legal significance. Although Powell J approved the above list of factors in relation to a heterosexual union, on the face of it there seems no reason why the list may not also be useful in relation to same-sex couples. [page 603] 9.8 Section 4(1) of the FLA defines ‘de facto relationship’ and has the meaning as set out in s 4AA: Meaning of de facto relationship (1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their

relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple (2) Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship. (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between two persons of different sexes and between two persons of the

same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. When two persons are related by family (6) For the purposes of subsection (1), two persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

[page 604] (c) they have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

Section 4(1) points of interest: Where a de facto couple marry each other during the relationship, Pt VIIIAB will cease to apply and the parties, on separation, would need to rely on Pt VIII of the FLA: s 90SC. More than one relationship can exist at the same time. Essentially, this means being concurrently married to someone else or being in another de facto relationship does not in itself end the first de facto relationship: s 4AA(5)(b).

The prohibition of relationships at s 4AA(6) is limited to direct lines of descent and adoptive relationships. This includes parents and children, grandparents and grandchildren, brothers and sisters but does not include step-parent and step-child relationships, an uncle, aunt, nephew and niece, or cousins. There is no requirement that people live as ‘husband and wife’ or as a same-sex couple. A de facto relationship is now recognised as between samegender couples or couples of different genders. The courts have approached the concept of what a de facto relationship is by considering whether or not a couple live together on a genuine domestic basis. As stated above, s 4AA(2)–(4) sets out a list of factors to be taken into account. This is not an exhaustive list and permits the court’s discretion. The legislation is clear that the circumstances taken into account by the court ‘may include any or all of the following’. Case law indicates that proving a de facto relationship may be difficult when one must prove the nature and extent of a common residence, the commitment to a shared life and the public aspects of the relationship. Cronin J in Vaughan and Bele [2011] FamCA 436 at [11]–[13] stated that it is the parties who define the nature of their relationship. It may evolve and alter dramatically over time. See also McMaster and Wyhler [2013] FamCA 989 where it was held a de facto relationship did not exist as the parties were not a couple living together on a genuine domestic basis; had never resided in the same building; had never had a sexual relationship; were not financially dependent or inter-

dependent on each other; and had little jointly owned property. In addition, the respondent had commenced a concurrent relationship with another man during the same period which was of a romantic nature and included a sexual component; and the parties were not considered to be in a relationship by mutual friends. The matter of Fielding and Fielding [2012] FCWA 86 provides an interesting example of a case where the litigants are made up of a number of de facto and married parties. [page 605]

Declaration of a de facto relationship 9.9

Section 90RD of the FLA provides: Declarations about existence of de facto relationships (1) If: (a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and (b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person; the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those two persons. (2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a); (b) whether there is a child of the de facto relationship; (c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); (d) when the de facto relationship ended; (e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. Note: For child of a de facto relationship, see section 90RB.

9.10 A party to a de facto property application can seek a declaration that the de facto relationship either existed or did not exist between the parties: s 90RD(1). Nothing in this section implies a court is obliged to make a declaration where an application for a declaration has not been sought. A court has the power to declare the following pursuant to s 90RD(2): (a) the period or periods of the relationship: s 90SB(a); (b) whether there is a child of the relationship (refer to s 90RB): in Lee and Hutton [2013] FamCA 745 Watts J considered who is a child of the relationship and held that a foetus or embryo was not a child as described in s 90SB(b) and that a gateway under s 90SB(b) requires a child to be living at the date the order is made: see [120]– [178]; (c) whether a party made substantial contributions under s 90SM(4)(a)–(c); (d) when the relationship ended; and (e) where each party was ordinarily resident during the

relationship.

A declaration made by a court is deemed to be a court order: s 90RE. Section 90RF allows any party to the proceedings to apply for a declaration. This includes the parties to the de facto relationship, third parties or others in joint proceedings. [page 606] Parties seeking a declaration must meet the geographic conditions that either or both of the parties to the de facto relationship must have been ordinarily resident in a participating jurisdiction at the date of proceedings: s 90RG. Section 90RH provides the court with power to set aside a declaration for nondisclosure. Since the commencement of the de facto provisions in the FLA there have been a number of matters before the court on the question of whether or not a de facto relationship existed. The matters have involved one party seeking a declaration under s 90RD.

A marriage certificate provides the evidence of union; however, a de facto relationship is at times difficult to prove. Thackray CJ of the Family Court in Western Australia made the following comment in Truman and Clifton [2010] FCWA 91 at [338]: How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is ‘marriagelike’ in circumstances where married couples straddle

the spectrum from the deliriously happy to the homicidally estranged?

In Moby and Schulter [2010] FamCA 748, Mushin J noted that the question of ‘whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor’. In this case a number of concepts were discussed including ‘couple’ and ‘living together’. Mushin J held that a ‘couple’ were two people, whether of the same or opposite sex. His Honour further held that ‘living together’ did not require a couple to live together on a full-time basis and that it was feasible that they might live together for no more than half of the time of the relationship. As stated above his Honour concluded that each case must be considered on its own facts. In this case the applicant, Ms Moby, claimed that a de facto relationship existed between her and Mr Schulter, the respondent, between 2002 and October 2009. The respondent denied the existence of a de facto relationship. His Honour concluded that the applicant’s evidence was preferred to that of the respondent and found on the applicant’s evidence and that of corroborative witnesses that a relationship existed for approximately 9.5 years. His Honour stated his findings related to the duration of the relationship and not the nature or quality of the relationship. His Honour further stated that it could not be said that the parties’ relationship continued throughout as a de facto relationship considering there were several periods of separation. What the court needs to determine in relation to applications for the alteration of property interests or maintenance is whether or not a relationship existed for a continued total period of at least two years and that period must include the time commencing on 1 March 2009, as this is the

date the legislation came into effect. In this matter a de facto relationship was declared. [page 607] The relevant legislation and case law were discussed at [126]– [142]. See also Dakin and Sansbury [2010] FMCAfam 628 per Bender FM; Bourke and Golby [2013] FMCAfam 228 per Roberts FM; Dabney and Laird [2013] FCCA 214 per Altobelli J; Elwood and Fisher [2012] FMCAfam 415 per Whelan FM. See also Sinclair and Hatcher [2014] FCCA 395 in which Bender J declined to make a declaration that a de facto relationship existed. Her Honour accepted the evidence of the father that ‘his and the mother’s [Ms Sinclair] relationship was volatile and highly dysfunctional. He describes their relationship as being “on” and “off” and that during the course of that relationship they broke up at least 50–70 times’ (at [115]).

In Ricci and Jones [2010] FMCAfam 1425 the question for determination was whether, under s 4AA, the parties were at any time in a de facto relationship. The mother in this case initiated a property settlement application and the father filed a response seeking the summary dismissal of her application. The parties never lived together but did have a child. It was found that their relationship lasted seven months; that there was no common residence (the parties maintaining separate homes, spending occasional nights together, the respondent doing some chores for the applicant); that it was not a sexual relationship until near the end of that seven months; that there had been no financial dependence or interdependence, no ownership or use of joint

property or commitment to a shared life; and that the respondent had never cared for the child. Riley FM examined whether it could be said that the child was a ‘child of [a] de facto relationship’ within the meaning of s 90SB(b) of the FLA and whether a de facto relationship existed pursuant to s 4AA of the Act. Her Honour also reviewed the authorities, in particular Moby and Schulter [2010] FamCA 748 (per Mushin J). Her Honour concluded (at [43]): A de facto relationship is clearly not the same as the sort of relationship that people have when they are merely dating or when they are interested in developing a longterm relationship. Her Honour went on to say (at [45]) that the relationship ‘was of a very limited nature’ and dismissed the application, concluding (at [56]): Taking all of the matters into account that are stipulated by s 4AA of the Act, it seems to me that there is no prospect at all that the relationship between the applicant and the respondent could be regarded as a de facto relationship.

In Hamblin and Dahl [2010] FMCAfam 514 Demack FM was required to determine if a de facto couple’s relationship had come within s 90SB(a) of the FLA which provides that the court may make an order for maintenance or property (or a s 90SL declaration) in relation to a de facto relationship only if the court is satisfied ‘that the period, or the total of the periods, of the de facto relationship is at least 2 years’. [page 608]

In this matter the parties were in a de facto relationship for four years and after a separation of almost 10 years, in the last two years of which the applicant was in a de facto relationship with another person, reunited in a de facto relationship which lasted 18 months. Demack FM (at [49]) said that ‘[t]he plain meaning [of the ‘total of the periods of the de facto relationship’] is that one simply adds up the periods to make the total’. Demack FM applied the reasoning of Thackray J in the Western Australian case of LeMay and Clark [2005] FCWA 23 in which Thackray J analysed whether an interrupted but resumed relationship between two parties was one relationship or two separate ones. In a case where the parties had been in a relationship for nearly five years and then, after a separation of eight months, for a further 16 months, Thackray J said (at [42]): I suspect it would only be a lawyer (or Judge) who would be tempted to think [the mother] and [the father] had two different de facto relationships. Anyone else who knew them would simply have seen them getting back together and resuming their original relationship. Upon declaring that the parties’ de facto relationship had existed for at least two years, Demack FM said (at [65]): I cannot see that either the gap between periods of cohabitation, or the intervening de facto relationship between the applicant and Ms M have any extraordinary features [as to which the court noted at [63] that under s 4AA(5)(b) a de facto relationship can exist even if one partner is legally married to someone else or in another de facto relationship] which would draw me to the conclusion that these were two separate relationships. This matter went to appeal with the matter being known as Dahl and Hamblin [2011] FamCAFC 202. The questions before the appeal court were whether the Federal Magistrate erred in

making a declaration pursuant to s 90RD of the FLA that a de facto relationship of at least two years existed between the parties; and whether the Federal Magistrate erred in determining that two periods during which the parties agreed they had been in a de facto relationship could be aggregated for the purpose of determining the two-year period necessary to enable orders for the alteration of property interests to be made. The Full Court considered whether the use of the word ‘periods’ in ss 90RD(2) and 90SB(a) of the FLA meant that where there had been a breakdown in a relationship, the periods could be aggregated so that there was only one relationship between the parties. The Full Court also considered whether a period of the relationship which ended prior to the commencement of Pt VIIIAB of the FLA could be included in the aggregation of the periods for the purpose of establishing the two-year period. It was held no appealable error was established and the appeal was dismissed. Finn, Coleman and Austin JJ referred (at [8]–[14]) to the relevant legislation in relation to accepting the aggregation of periods that amounted to finding a de facto relationship. At [16] their Honours stated that the judgment made by Demack J relied on the judgment of Thackray J in LeMay and Clark [2005] FCWA 23 when referring to the breakdown of the relationship and periods of reunification: In essence, it seems to me, that if two people commence or renew a relationship, then absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. It would appear to be a fiction to suggest that two earlier [page 609] intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous

relationship. And it would seem, that within the realms of human experience, having another intimate relationship for either a short or longer time, in the midst of another relationship, is not of itself extraordinary. Finn, Coleman and Austin JJ stated (at [23]–[24]): We find it difficult to accept that Parliament intended to impose on litigants and the courts the burden of establishing, or finding, whether in a given case, a particular breakdown in a relationship was such that a resumption of the relationship would have to be categorised as a new relationship, or that that breakdown was merely some form of dividing line between periods of the relationship. Accordingly, we think that the better view must be that the introduction into Part VIIIAB of the concept of ‘periods’ and thus the possibility of the aggregation of periods, must mean that for the purposes of Part VIIIAB there can only be one relationship, albeit in some cases broken into periods. As to the question of whether a period of the relationship which ended prior to the commencement of Pt VIIIAB of the FLA could be included in the aggregation of the periods for the purpose of establishing the two-year period, the Full Court held (at [48]): Thus our overall conclusion is that if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. It matters not at least for the purposes of establishing jurisdiction under s 90SB, how long ago the other period, or periods occurred, or what were the circumstances of any breakdown in the

relationship (although as we have said, the circumstances of their periods together and of their periods apart will, of course, be important in the determination of a ‘proper’ maintenance order or a ‘just and equitable’ order for alteration of property interests).

In Barry and Dalrymple [2010] FamCA 1271 an application was made pursuant to s 90RD of the FLA. The applicant claimed that a de facto relationship existed within the meaning of s 4AA of the Act. The facts were that the applicant became employed as the carer and personal assistant of the frequently wheelchair-bound respondent. The applicant was also a male escort who provided the respondent with sexual services about three times, for which the applicant received payment. The respondent denied further sexual contact. The applicant was employed for 15 hours of caring duties per week in exchange for being given free rent (his own bedroom and bathroom and use of the house), a salary of $25,000 plus superannuation and some living expenses. This arrangement continued for three and a half years. During this period the respondent was financially generous towards the applicant. He provided him with luxurious interstate and overseas holidays and about $44,000 for the applicant’s use. The applicant described this during his evidence (at [88]) as ‘living the life’. Coleman J heard evidence that the applicant did little or no domestic duties except cook a few meals; that the house was unclean; that the applicant [page 610]

‘“[did] his own thing”, the needs of the respondent becoming increasingly secondary to the lifestyle to which the applicant had by that time become accustomed’ (at [177]). There was also evidence of a decline in the respondent’s health (at [178]). A discussion of the relevant law can be found at [225]. Coleman J said (at [282]): [T]he court is not satisfied on the balance of probabilities that the parties ever lived together on a genuine domestic basis. Although it is unnecessary to definitively find what the relationship was, it can perhaps best be described as in the nature of a ‘convenient commercial arrangement’, particularly for the applicant. Further, his Honour referred to a judgment of Gleeson CJ (at [284]): In MW v Director-General, Department of Community Services (2008) 82 ALJR 629, Gleeson CJ said (at p 635): It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference … The intention may be expressed, or it may be implied.

Coleman J found (at [285]): … there to have been no common intention, expressed or implied, that the parties’ association was to be a de facto relationship. The court has made findings as to the common intention of the parties as to their respective roles and responsibilities. They were at all times consistent with an employer/employee relationship, as asserted by the respondent. The court’s findings as to the roles and responsibilities undertaken by the parties leave no room for concluding that, irrespective of any

absence of the intention to do so, the parties at any time had a de facto relationship. See also Tasha and Peng [2012 FamCA 385 in which Cronin J found that the applicant Ms Tasha could not prove on the balance of probabilities that she and the respondent Ms Peng were in a de facto relationship, despite sharing a residence and Ms Tasha claiming a sexual relationship for 17 years. It is notable that during that entire period Ms Peng was married to Mr Pan.

In Sinclair and Whittaker [2013] FamCAFC 129 the Full Court (Bryant CJ, Thackray and Aldridge JJ) held (at [65]): Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative. A de facto relationship was held to exist even though the respondent had made representations to various institutions that she was not in a de facto relationship. These included the ATO, State Revenue, a mortgage provider and a finance provider. The court (at [91]) confirmed that the standard of proof required is on the balance of probabilities and that s 140 of the Evidence Act 1995 (Cth) did not apply. See also Allenby and Kimble [2012] FamCA 614 per Murphy J; Kazama and Britton [2013] FamCA 4 per Watts J.

[page 611]

9.11 The court does not have the power to make interim orders unless the court is satisfied that a de facto relationship exists: Ting and Fingal [2013] FamCA 29 per Cronin J. The Full Court also confirmed this in Norton and Locke [2013] FamCAFC 202 in the decision of Bryant CJ, Murphy and Benjamin JJ. This was an appeal from orders for interim injunctions. The issue of jurisdiction had not yet been established. The Full Court held that before the court can grant injunctions under s 114(2A) of the FLA, it must be satisfied that there is a de facto financial cause. There is no de facto financial cause until a de facto relationship is established and the additional ss 90SK and 90SB conditions are met (at [18]). It was held (at [42]) that s 114(3) was not limited just to matrimonial causes, and that neither s 114(3) nor s 90SS of the FLA could be used to grant injunctions until the court could establish jurisdiction. It was further held (at [79]) that the court does not have the power to order the provision of financial information under Pt 24 of the Rules until the relevant jurisdictional facts are established. The court held that it did have the power to make orders and directions in respect of the provision of financial information to enable it to determine the jurisdictional factors (at [80]). For a more recent discussion of how a de facto relationship is deemed pursuant to s 90RD refer to Fleming and Schmidt [2017] FamCAFC 12.

The relationship exists but when did it commence? 9.12

In the matter of Newland and Rankin [2017] FCCA 210

Hughes J was asked to determine when did the parties live in a genuine domestic basis. It was an important issue given the property and business interests claimed by the parties. The applicant Mr Newland claimed the parties had been in a de facto relationship for eight years while Ms Rankin said it had been barely two years. The parties met in 2003 and soon after commenced a sexual relationship. The applicant stated he was committed from that time while the respondent stated their relationship was casual until 2008. The applicant confirmed that at times he had relationships with other women. The judgment provides a detailed history of the relationship over the eightyear period. The only evidence adduced by the applicant to indicate there was a de facto relationship was the fact that he had nominated the de facto wife as his beneficiary with respect to his superannuation entitlements. Hughes J found the detailed evidence of the respondent to be credible and held that until 2008 there was no mutual commitment to a shared life, there was no financial interdependence and they owned no property together: at [125]. The de facto relationship was deemed to have lasted two years with separation occurring in April 2010. For an analysis of how his Honour determined the property division, refer to [128]– [170].

The relationship exists but when did it end? 9.13 The question of jurisdiction and the making of directions with respect to disclosure were raised in the matter of Holden and Wolff (2014) FamCAFC 224.

[page 612] This matter came on appeal from a decision of Henderson J of the Federal Circuit Court of Australia. The dispute related to the time at which the de facto relationship came to an end and whether or not the Federal Circuit Court of Australia had jurisdiction to hear the matter. The de facto wife, who was seeking a property alteration, claimed the de facto relationship came to an end in 2010. The de facto husband contended it came to an end in January 2006. Henderson J stated her first course of action was to determine whether or not the court had jurisdiction pursuant to s 90RD of the FLA before she could hear the property application. While listing the matter her Honour made directions that provided for the de facto husband to provide financial disclosure. The de facto husband appealed the disclosure requirement, stating that until such time as the jurisdictional issue could be resolved the court had no power to make directions with respect to disclosure. The Full Court followed the earlier decision of Norton and Locke [2013] FamCAFC 202 (discussed above at 9.11), which concluded that until such time as the relevant jurisdictional facts are determined there was no power to order the provision of financial information pursuant to the relevant rules. Accordingly, the directions made by the trial judge were set aside. The Full Court did, however, distinguish that principle with the court’s own inherent power to make directions reasonably necessary for the determination of the jurisdictional fact. Essentially, if it was necessary to receive evidence of the parties’ current financial circumstances to

determine the jurisdiction issue then a direction for disclosure would be within the court’s power.

The matter of Cadman and Hallett [2014] FamCAFC 142 involved a same-sex couple who began a relationship in 1991 and for the next 19 years, had a close relationship, albeit not exclusive and not always living under the same roof. The case did not centre around whether the parties were in a de facto relationship but rather when did they separate. At the time of the trial Mr Cadman was 70 years old and suffering from dementia. Mr Hallett, who was 47 years old, had received financial support throughout the relationship. In 2000 Mr Cadman decided to become celibate and their sexual relationship ceased, though they remained physically intimate. At the same time Mr Hallett commenced studying in the United States, spending most of the year there and, on return visits to Australia, lived with Mr Cadman at their home. At times Mr Cadman would visit Mr Hallett in the United States. Mr Hallett had sexual relationships with others while living overseas. The parties maintained regular contact and at times Mr Cadman assisted Mr Hallett financially. In October 2010 Mr Cadman sent Mr Hallett an email to the effect that living together was ‘not right or an option’. At trial Mr Cadman stated they separated in 2000 when Mr Hallett moved to the United States but Mr Hallett argued they had not separated until 2010, when separation was communicated. Mr Hallett submitted evidence that in 2009 he was going to marry an American Citizen to gain a ‘green card’ (the right to live and work in the United States). The court found that in this case, this in itself would not constitute an intention to end the de facto relationship as a de facto relationship can

[page 613] exist despite one or both parties becoming or being married to another person. A person can also be involved in multiple de facto relationships at the one time. It was held that separation did not occur until the communication in 2010. The Full Court found no error in Rees J’s (trial judge) conclusion that ‘many emails between the parties … demonstrated clearly the [parties’] commitment to each other and their shared life … notwithstanding the time that Mr Hallett spent in the United States’ and that an email sent from Mr Cadman to Mr Hallett in 2010 saying ‘[l]iving with me in Town N is not right or an option’ indicated his intention to end the relationship: at [26]–[28]. The Full Court stressed the importance of one party effectively communicating an intention to end a relationship.

9.14 Once a de facto relationship is established, certain relationship conditions must be met. Pursuant to s 90SB, consideration must be given to: When this Division applies — length of relationship etc A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied: (a) that the period, or the total of the periods, of the de facto relationship is at least two years; or (b) that there is a child of the de facto relationship; or (c) that: (i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph

90SM(4) (a), (b) or (c); and (ii) a failure to make the order or declaration would result in serious injustice to the applicant; or (d) that the relationship is or was registered under a prescribed law of a State or Territory. Note: For child of a de facto relationship, see section 90RB.

Section 90SB points of interest: It is assumed that the length of relationship is likely to be an issue in dispute when parties litigate. The commencement date of a de jure marriage is easily established with a marriage certificate but the commencement date of a de facto relationship may easily be put to issue. As mentioned earlier in this chapter, parties may seek a declaration that the de facto relationship existed or did not. The legislation does not provide either restriction or guidance as to periods of separation and resumption of relationship as with s 50 and de jure marriages. The approach taken by the Family Court of Western Australia takes into account aggregate periods that make the relationship on the whole long enough to meet the requirements of the section: LeMay and Clark, below. [page 614]

LeMay and Clark [2005] FCWA 23 has been confirmed by the Full Court of the Family Court in Fenton and Marvel [2013] FamCAFC 132 before May, Strickland and Murphy JJ. The trial

judge found that a de facto relationship must exist at 1 March 2009 for the FLA to apply. On appeal it was held that a de facto relationship did exist as the parties can calculate the aggregate of periods of the relationship. Murphy J (at [57]) held that the parties could still meet the requirements of jurisdiction if the de facto relationship broke down before 1 March 2009 but resumed at a later date after 1 March 2009 and then broke down again, provided that the periods of the de facto relationship were at least 2 years. Murphy J (at [63]) set out the questions the court must consider: 1.

Was there a relationship between the applicant and respondent that broke down finally before 1 March 2009? If the question is answered yes, the court has no jurisdiction to entertain the s 90SM claim, irrespective of whether the relationship might satisfy the definition of a de facto relationship and irrespective of its length. If the question is answered no, further questions must be asked.

2.

Was the relationship that broke down finally after 1 March 2009 a relationship that meets the definition of ‘de facto relationship’ as prescribed by s 4AA of the Act? If that question is answered no, the court has no jurisdiction to entertain the s 90SM claim irrespective of the length of the relationship. If the answer to that question is yes, a further question needs to be asked.

3.

Did the de facto relationship exist for ‘at least 2 years’ (noting that the requisite period can be established by aggregating the periods of the relationship)?

Strickland J at ([32]–[34]) disagreed that 1 and 2 were discrete questions and said that the question is whether a de facto relationship finally broke down after 1 March 2009.

The legislation refers to a child of both parties to the de facto relationship. Where there is a child of the relationship, the two-year rule does not apply. It should be noted that this section does not include a child of only one of the parties: s 90RB. Refer to Ricci and Jones [2010] FMCAfam 1425 and Rubenstein and Hartnett [2011] FMCAfam 876.

In the matter of Asprey and Delamarre [2013] FamCA 214 Cleary J held that a de facto relationship existed and placed the greatest significance on the fact that the parties have two children together to whom they have been committed parents. The facts are interesting in that the parties were in a relationship together from May 2002 to January 2011 yet the parties had never lived together for more than seven weeks. Her Honour found that they wanted to spend all their time together as a family but each on their own terms. Her Honour held that the ongoing argument about how they would live together as a family reflected a mutual commitment to a shared life. Her Honour also held that there was no financial dependency and each maintained their finances separately and that this was not uncommon in modern relationships.

[page 615] The legislation does not define ‘substantial contribution’. For instance, there is no reference to what property the contributions were made to. It may be open to the court to

include homemaking and parenting contributions within this subsection: at s 90RB(3)(i).

In Miller and Trent [2011] FMCAfam 324 a de facto relationship was found not to exist. An application was made by a selfrepresented litigant alleging that a de facto relationship existed albeit it only lasted for a 14–16 month period rather than the requisite two years. The applicant claimed he had made ‘substantial contributions’ and that a ‘serious injustice’ within the meaning of s 90SB of the FLA would result if a property order were not made. The applicant was seeking 15 per cent of the $3.4 million pool, stating he marketed the respondent’s business, performed building work on two properties, cared for livestock, trained horses, cooked, drove the respondent’s children to school and attempted to settle or settled neighbourhood and business disputes. Coates FM said (at [32]): The terms substantial contributions and serious injustice are not defined in the Act, but statutory interpretation dictates that the adjectives substantial and serious must be given meaning. At face value, the adjectives qualify and mean more than mere contributions or mere injustice. His Honour added (at [53]): Counsel for the respondent referred me to V and K [2005] FCWA 80, a decision of Holden CJ of the Family Court of Western Australia, a court which has been deciding de facto property issues since the year 2000, who stated at para 21: Notwithstanding I am of the view that contribution to domestic duties in circumstances such as exist in this case where there were no dependent children and over a short period of time ought not be seen to be substantial. In my view, substantial means something

more than usual or ordinary. In my view, s 205X(b)(ii) is aimed at more exceptional circumstances where serious injustice may be caused by the application of [sub-section] (i).

Coates FM held (at [54]–[57]) that Holden CJ’s view may be applied, as the equivalent wording of s 205X of the Family Court Act 1997 (WA) (under which that case was heard) was similar to that of s 90SB of the FLA. His Honour said (at [58]–[60]): As well as Holden CJ’s description, other sources of meaning of the words may be considered. The Macquarie Encyclopedic Dictionary, in defining the adjective substantial, refers among other things, to an ample or considerable amount as well as something having real worth or value. The Concise Oxford Dictionary refers to having real importance or value and to a considerable amount. A similar interpretation has been applied to the word in a different area of law, but one which pertains to a quantifiable or assessable situation. In Wentworth v Wentworth (1995) 37 NSWLR 703; [1995] ACL Rep 395 NSW 39, a consideration of s 8 of the Family Provision Act 1982 (NSW), the court held that the word substantial means not illusory, something considerable or large. Although referring to a substantial detrimental change under that Act, the word substantial is given an ordinary usage [page 616] meaning discoverable in dictionaries and in my view a similar meaning to that held in V and K. His Honour then said (at [62]–[64]) as to the requirement of

‘serious injustice’ if the order sought is not made: So the legal issue posed by counsel for the respondent is one of determining the applicant’s claim that contributions were more than usual or ordinary or were contributions having real worth, value or importance and that a serious injustice may result. The Act recognises that an injustice may occur and so sets a higher test being a serious injustice. The word serious in this context, taken from the Concise Oxford Dictionary, must mean not slight. The Macquarie Encyclopedic Dictionary uses the words weighty or important. These meanings show a difference by marked degree from a mere injustice. The evidence then must show the resulting serious injustice if a declaration is not made. His Honour added (at [86]–[88]): The concept can probably be more easily understood if for example there were significant financial contributions by the applicant. I could also envisage circumstances which would be regarded as significant non-financial contributions as well but such must be so substantial, that is more than usual or ordinary that they would stand out as against mere contributions. Viewing the pool from this aspect highlights counsel’s submission that a substantial contribution out of the ordinary cannot be determined in a vacuum and so the pre-relationship ownership of the various assets and entities and their values must be taken into account. Nor does the applicant address what or how serious injustice would result if I did not make orders in his favour. Coates FM found (at [103]):

[T]he applicant does not meet the evidential test of showing an arguable case that he made substantial contributions and that a serious injustice would result if I did not make orders in his favour, [therefore] I conclude that a de facto relationship did not exist for the purpose of these proceedings. I will make such a declaration and dismiss the application. In the matter of Wall and Mitchell [2012] FamCA 114 Johnston J also considered the issue of substantial contributions and followed the decisions of Coates FM in Miller and Trent [2011] FMCAfam 324 which had followed the decision of Holden CJ in V and K [2005] FCWA 80 at [21] as stated above. It was held that Ms Wall had not made substantial contributions, the financial contributions were extremely limited and not as required under the FLA. In Jacob and Lawrence [2013] FamCA 188 Macmillan J held that foregoing employment opportunities and selling a house are not contributions of the kind referred to in s 90SM(4)(a), (b) or (c).

Where the conditions of s 90RB cannot be established, then parties to the breakdown of a de facto relationship can rely on s 90RC(3). This permits parties to have their matter heard under the relevant state or territory law or the common law. [page 617] The time limit will not apply where de facto relationships are registered on a recognised register. Victoria and Tasmania have established registers under their respective

Relationships Acts, the Australian Capital Territory has a register pursuant to the Civil Partnerships Act 2008 (ACT) and in New South Wales the Relationships Register Act 2010 (NSW) created a register. Registration will assist with finding a claim but may not in itself prove a de facto relationship exists. It should be noted that in Stanford v Stanford [2012] HCA 52; (2012) FLC ¶93-518, the High Court confirmed that both property and maintenance orders can be sought by parties in an intact marriage although not in an intact de facto relationship.

De facto financial cause 9.15 Once a de facto relationship has been established one must turn to the next question: Is there a de facto financial cause? Section 4(1) states: de facto financial cause means: (a) proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or (b) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the maintenance of the first-mentioned party after the breakdown of the de facto relationship; or (c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of

the de facto relationship, of the property of the parties or either of them; or (d) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or (e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of: (i) the parties to that agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); or (f) third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or

[page 618] (g) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.

Prior to the enactment of Pt VIIIAB, state and territory legislation in relation to de facto relationship breakdown did

not provide any relief in relation to maintenance and superannuation. Where the FLA applies to de facto relationship breakdown, parties can now seek relief for maintenance, distribution of property (including super splitting) and provision for financial agreements. Maintenance and superannuation splitting will be discussed in detail later in this chapter.

Separation date 9.16 Once a de facto relationship has been established, along with a de facto financial cause, one must then ask: When did the de facto relationship break down? Where the de facto relationship broke down on a final basis prior to 1 March 2009 (in an original referring state and from 1 July 2010 in South Australia), the FLA will not apply and the parties must turn to the applicable state or territory laws, the common law and equity. In saying this, there is provision for parties who separated prior to 1 March 2009 (in an original referring state and from 1 July 2010 in South Australia) to opt into the federal legislation (this also includes entering into financial agreements): Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 86A. Where parties decide to opt in, they do so on an unconditional and irrevocable basis. Parties with final orders or a written financial agreement in place which have not been revoked are unable to opt in. Parties must consent in writing and each must have obtained independent legal

advice as to the advantages and disadvantages in proceeding under the FLA. Lawyers must sign a certificate stating independent advice has been provided. Even where parties decide to opt in the court may set aside the application on the grounds that opting in would be unjust or inequitable: Family Law Amendment (De Facto Financial Matters and Other Measures) Act s 86A(7).

The issue of how to determine when separation occurred was considered by O’Reilly J in Volen and Backstrom [2013] FamCA 40. Ms Volen claimed the relationship existed between 2005 and 2010 while Ms Backstrom stated the relationship existed from Easter 2006 to November 2007. Her Honour had to consider whether there was a de facto relationship in existence at the time of the commencement of the legislation: 1 March 2009. Her Honour had to consider whether there is at law a necessity for one party to communicate to the other an intention to end a de facto relationship. The decisions of Stevenson J in Clisbey and Viges [2011] FamCA 611 who referred to a line of authority from Marriage of Pavey (1976) FLC ¶90-051, Todd and Todd (No 2) (1976) [page 619] FLC ¶90-008 and which were then applied by McGuire FM (as he was then) in Aitken and Deacon [2010] FMCAfam 35 were considered by her Honour, in particular McGuire FM’s summary of the requirements of separation: 1.

the development of an intention to separate, which need not be mutual;

2.

the communication of that intention to the other party,

which should be unambiguous and unconditional and should be viewed objectively; and 3.

some form of action upon the determination to separate.

Her Honour (at [31]) held that it was not appropriate to apply decisions that relate to separation in marriage to de facto relationships. Instead she turned to the decision of Cronin J in Vaughan and Bele [2011] FamCA 436 at [11]–[13] in which Cronin J said (at [13]): [T]here is a distinction between actions which connote unhappiness in a relationship and the termination of it. Termination has a distinct finality about it but it must be such that both parties acknowledge but not necessarily accept, that at least one of them has decided to permanently end the relationship. Her Honour found that the parties were in a de facto relationship between November 2007 and 22 April 2010 and took the following into consideration to determine when the relationship had ended: 1.

the applicant executed an Enduring Power of Attorney in favour of the respondent in February 2008, which the respondent accepted which led her Honour to find that it was unlikely that the respondent would have accepted the power after the relationship was over (at [128]);

2.

the respondent did not change her will to remove the applicant until 20 April 2010 (at [123]); and

3.

the respondent did not take action to remove the applicant from her home for two and a half years; despite claiming she wanted the applicant gone (at [155]).

Sufficient connection to a participating jurisdiction

9.17 For a matter to proceed further, the parties must establish a sufficient connection to a participating jurisdiction. Sections 90SD (maintenance) and 90SK (property) are essentially written in the same terms and require a geographical connection in order for an application to be made. It is unlikely that parties who live in non-referring states or have substantially lived in non-referring states during their relationship will attract the jurisdiction of the FLA. Those parties will need to turn to the relevant state or territory legislation. Section 90SD states: Geographical requirement (1) A court may make an order under section 90SE or 90SG in relation to a de facto relationship only if the court is satisfied: (a) that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (the application time); and

[page 620] (b) that either: (i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or (ii) the applicant for the order made substantial contributions, in relation to the de facto relationship, of a kind mentioned in paragraph

90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or that the alternative condition in subsection (1A) is met. (1A)The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. (2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship. (3) If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications. Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day. (4) If: (a) a Proclamation under subsection (3) is in force; and (b) a State ceases to be a referring State on a particular day; the Proclamation is revoked by force of this subsection on and from that day. (5) If, under subsection (4), a Proclamation under subsection (3) is revoked: (a) this section has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on applications made before the specified day is not

affected.

9.18 For parties to attract the jurisdiction of the FLA, they need to demonstrate the following: they were ordinarily resident in a referring state during at least one-third of their de facto relationship; or the applicant seeking orders must have made substantial contributions of a direct or indirect nature, either financial or non-financial, to the acquisition, conservation or improvement of property, or substantial contributions in the role of homemaker and parent in a referring state; or the parties to the de facto relationship were ordinarily resident in a referring state when the relationship broke down; and at the time of making the application, at least one of the parties was ordinarily resident in a referring state: refer to s 90RG. [page 621] 9.19 Section 90RC(3) provides two examples to assist in determining the geographical connection: Example 1: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction. Subsection (3) has the effect that State law will govern financial matters arising out of the breakdown of their relationship. Example 2: Cleo and Dan are parties to a de facto relationship that has broken down after the commencement of this section.

Early in their relationship, they made a financial agreement under the law of a non-referring State, but later spent most of their relationship in a participating jurisdiction. Cleo and Dan now have a sufficient geographical link with a participating jurisdiction for either of them to apply for an order under this Part in relation to financial matters arising out of the breakdown of their relationship. This means that subsection (3) will not apply and that their financial agreement will not be enforceable under State law because of subsection (2). However, their financial agreement will be enforceable under this Part as a Part VIIIAB financial agreement (see section 90UE).

In the matter of Harriott and Arena [2016] FamCAFC 69 the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. The parties had met in Sydney in April 1999. The commenced living together in 2000 in Vanuatu and continued living together until 2011. In March 2013 Ms Harriott commenced proceedings in the Federal Circuit Court with respect to property. For the court to have jurisdiction, Ms Harriott needed to demonstrate she had made ‘substantial contributions in relation to the de facto relationship of a kind mentioned in paragraph 90SM(4)(a), (b) or (c)’ in New South Wales or another ‘participating jurisdiction’. The trial judge’s reasons for dismissing Ms Harriott’s application were stated at [36]: I am not satisfied that those contributions can be characterised as having taken place in New South Wales because the funds used to make those contributions were held in various accounts with [a] branch of the Commonwealth Bank of Australia. The money was paid on each occasion in Vanuatu and it is in Vanuatu that the contributions were made.

The steps taken by the Applicant in Australia, such as selling her home, taking leave of absence from her job, and rearranging the parenting arrangements relating to her child of her earlier marriage, were all taken before the de facto relationship commenced. On Appeal the Full Court of the Family Court, consisting of Thackray, Ryan and Murphy JJ, stated the real question to be answered was: … not whether contributions were made during the relationship but rather whether they were contributions in relation to the relationship. But what does ‘in relation to’ mean?: at [40]. To answer this question, the Full Court (at [42]) went on to consider the statements of Kiefel J in Kennon v Spry (2008) 238 CLR 366 at [217]–[218], in essence that: … the words [‘in relation to’] are prima facie broad and designed to catch things which have a sufficient nexus to the subject. [page 622] The Full Court also referred to Beneke v Beneke (1996) FLC ¶92698 and commented (at [48]) that: The Full Court did say in Beneke that it felt there should be some ‘causal or at least temporal connection’ between the contribution and the marriage … The Full Court also observed that in Lozanov and Lozanov (unreported, Full Court of the Family Court of Australia, Fogarty, Baker and McCall JJ, 8 June 1994), their Honours had concluded that ‘contributions made by parties prior to the marriage, whether they were cohabitating or not, can be treated as contributions

under s 79 provided the parties subsequently marry and the matters have a sufficiently relevant connexion with the marriage. The Full Court then held (at [49]–[50]): We find no reason to read down the wide and general terms of the expression ‘in relation to’, and we would therefore not exclude from consideration any contributions made prior to the commencement of the de facto relationship, provided there is a ‘sufficient nexus’ or ‘proper association’ between the contributions and the relationship. … we consider that any contributions made to that property, whether made before or after the relationship commenced, are properly characterised as having been made ‘in relation to’ the relationship, since there is a clear nexus or association between the contributions and the relationship. The Full Court went on to consider the connection with New South Wales and held (at [55]) that the contributions were in fact contributed within a participating jurisdiction, that being New South Wales. They held that the later acquisition of the property and business in Vanuatu was immaterial. The Full Court also found that Ms Harriott’s contributions were substantial and therefore sent the matter to the Federal Circuit Court for rehearing.

Just and equitable 9.20 Section 90SM(3) of the FLA states: ‘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 matter of Chancellor and McCoy [2016] FamCAFC 256 was an appeal involving a same-sex de facto relationship of 27 years. At the time of trial Ms Chancellor was 59 years of age and Ms McCoy was 55 years of age. Ms McCoy had retired and repartnered and was caring for her elderly parents. Ms Chancellor was still working and had not re-partnered. Throughout the relationship the parties had always maintained separate financial affairs and bank accounts. Each financially supported their own properties. There was no joint property and neither party had provided for the other in their wills. There appeared to be no future financial plan for a shared life even though they were together for so many years. [page 623] During the initial trial (Chancellor and MCoy [2016] FCCA 53 at [42]) the property pool was set out as follows: Asset Property A property Property B property Property E property (omitted) shares (omitted) shares (omitted) shares (omitted) shares (omitted) shares BMW motor vehicle

Ms Chancellor

Ms McCoy 650,000

385,000 350,000 7,940 71,878 6,410 3,002 7,450 17,000

Boat Toyota Prado Toyota Skid loader Isuzu truck Tools and equipment Horse float (omitted) Superannuation (omitted) Super TOTAL

4,250 30,200 14,750 9,000 6,250 12,000 204,177 968,367

Liabilities (omitted) Bank (omitted) Bank TOTAL

91,996 155,980 247,976

TOTAL NET ASSETS

720,391

887,724 1,698,664

1,698,664

Turner J, the trial judge, held that it would not be just and equitable to make an order for property settlement, and took into account: there had been no intermingling of finances; the parties did not have a joint bank account; each party acquired property in their own name; each remained responsible for their own debts; each could use their wages as they chose without explanation to the other; [page 624] there was a complete lack of joint financial decision making;

there was the absence of sharing any information with each other as to their financial situation or individual decision making; and at the time of separation the parties were unaware as to the worth of the assets acquired by the other during the relationship and the decisions that had been made in respect to the acquisition of those assets. Where there was common use of property, one partner contributed to the cost of shared living expenses. The trial judge referred to the legal principles set out in Stanford v Stanford [2012] HCA 52; (2012) FLC ¶93-518, Bevan and Bevan [2013] FamCAFC 116 and Fielding and Nichol [2014] FCWA 77. The first step is to consider whether it is in fact just and equitable to make any order at all. There were a number of grounds of appeal, in particular, that a different standard had been applied to this de facto couple, and particularly the appellant, than to other de facto couples. The Full Court did not find merit in any of the grounds of appeal and the appeal was dismissed with costs. The Full Court said (at [35]–[36]): It was further submitted that the absence of ‘future plans or goals’ was not a relevant consideration … Although her Honour did not say so expressly, we understand her reference to the absence of ‘future plans or goals’ to be part … of her findings about how the parties kept their affairs separate and conducted their financial lives without being accountable … to the other party. … There was … ‘common use’ of the homes owned by the respondent, but there was also a modest periodic payment by the appellant referable to her occupation of those homes. Furthermore, her Honour made no findings that would point to any ‘express and implicit assumptions’ [per Stanford v Stanford [2012] HCA 52;

(2012) FLC ¶93-518 at [42]] that the parties would ultimately share in the other’s property. On the contrary, her Honour properly placed significance on the fact that neither had taken any steps to ensure that the other would receive their property or superannuation in the event of death, and indeed the respondent had executed a will giving her entire estate to her parents. In the absence of evidence of any assumption by the parties that one would benefit on the death of the other, it would not have been open to her Honour to conclude, without evidence, that there was any assumption that there would be some redistribution of wealth upon termination of the relationship by means other than death.

Full and frank disclosure 9.21 Chapter 13 of the Family Law Rules 2004 (Cth) governs a party’s disclosure obligations in the Family Court of Australia and includes the mechanisms for disclosure, the class of documents that are exempt from disclosure (r 13.12) as well as service of specific questions (Pt 13.3). Similar provisions are contained in the Federal Circuit Court Rules 2001 (Cth). Judges will use their discretionary powers when full and frank disclosure is lacking and may make adverse findings against a party who has failed to meet the disclosure requirements. [page 625]

The matter of Gao and Wang [2016] FamCAFC 183 was an appeal initiated by the de facto wife against property orders made by Riley J awarding the de facto husband 71 per cent of the available assets at the time of the hearing. The orders were made after the trial judge concluded the de facto wife had not disclosed $1.25 million of assets that were deemed to be either hidden or gambled away: Wang and Gao [2015] FCCA 1861. The parties were in a de facto relationship from 1997 until 21 July 2010. They had three children who were born in 1998, 2000 and 2003. Initially, the de facto husband worked as a tradesperson and then the parties purchased a number of businesses and purchased and sold a number of properties. At times the de facto wife assisted the de facto husband in the businesses. Late in the relationship a business owned by the parties in South Australia faced financial difficulties and was sold for approximately $100,000: both parties confirmed the proceeds were lost to gambling. When the parties separated, the children continued to live with the de facto wife until October 2012. At that time she returned the children to the de facto husband. The children lived with him until 8 January 2013 and he then returned them to the de facto wife’s home. She was not home but he left them there alone. The children found their way back to the de facto husband’s home but he refused them entry. The children then attended the police station and were put into the care of the Department of Health and Human Services (child protection). Since separation, both parties commenced new relationships. Refer to [12] for a table of assets and liabilities which took Riley J two days of an eight-day hearing to determine due to the lack of disclosure by the parties. The Full Court (at [16]) stated with respect to disclosure: The law clearly and firmly obliges parties to property proceedings to make full and frank disclosure of all

material facts: Oriolo and Oriolo (1985) FLC ¶91-653; Gould and Gould (2007) FLC ¶93-333; Kannis and Kannis (2003) FLC ¶93-135. In Weir and Weir (1993) FLC ¶92-338 the Court said at 79,593: It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

And (at [17]): Having failed to undertake proper disclosure, neither party can complain about the primary judge taking a robust approach to the division of their property. Riley J (at [22]) stated her understanding of the principles put forward by the High Court in Stanford v Stanford [2012] HCA 52; (2012) FLC ¶93-518: Following Stanford … the court is required to take into account all the relevant matters and then determine what order, if any, is just and equitable. The Full Court did not approve the way in which Riley J interpreted the approach in Stanford: refer to [25]. The Full Court were unable to find any error with the way in which the trial judge approached and determined this matter. [page 626] The Full Court concluded (at [44]): Therefore it was entirely open to her Honour to find that the wife had received the benefit of $1,250,000 and had either gambled it away or kept it hidden. In either way it was a benefit to be taken into account when adjusting the parties’ interests in the property.

The de facto wife had claimed the funds were used for her and the children’s living expenses but throughout the trial she failed to provide evidence to support her case. Riley J was therefore unable to take this into account when adjusting the property interests of the parties and the missing $1.25 million remained unexplained. The Full Court stated (at [56]): ‘[T]he amount lost or hidden by the wife is some 80 per cent of the assets available for distribution at the time of the hearing.’ As the children were still in the care of the Department of Health and Human Services, there was no adjustment available to the de facto wife as claimed by her for the care of the parties’ children. The Full Court dismissed the wife’s appeal and the property orders remained unchanged.

Wastage and the diminishing of the parties’ assets 9.22 The courts take a dim view of a party that diminishes the assets of the parties. The matter of Gissing and Sheffield (No 3) [2015] FamCA 1019 demonstrates the court’s view on waste. Gissing (the de facto husband) and Sheffield (the de facto wife) were equal partners in business and throughout their relationship jointly purchased two properties. Both properties were registered in the de facto wife’s name. There was one mortgage over the properties. At the time of separation, the de facto wife locked the de facto husband out of the property he was residing in (and continued to leave it vacant) and excluded him from accessing his entitlement to the business income. The de facto wife even took control of

the storage of business stock usually stored by the de facto husband. She put the stock in a storage facility but later failed to pay for the storage which ultimately resulted in the stock being sold to repay the storage costs. The de facto wife then extended the mortgage and used the funds to purchase shares which reduced in value by 70 per cent. The mortgage fell into default and mortgagee sales were instituted by the bank. The de facto husband argued the assets were diminished due to the actions of the de facto wife. Cronin J held with respect to the unpaid mortgage that the wastage related to the repossession process but that the mortgagee sales did not cause loss as the sales were extremely favourable. With respect to the purchase of shares from the drawing down of the mortgage Cronin J held the waste related to the lost opportunity to pay the outstanding mortgage rather than the decrease in the value of shares: at [180]. The de facto husband failed to convince his Honour that there had been a loss of rental income from the vacant property as there was no evidence that tenancy arrangements would have changed had the property been transferred to him. [page 627] Cronin J did find the items lost in storage to be the fault of the de facto wife which amounted to wastage. His Honour held (at [187]–[188]) that: … the respondent acted recklessly or wantonly with assets in which the applicant had a significant interest and caused not

just the costs of the storage for which she must be held responsible but also the unquantifiable costs of the lost items. The effect of her action has reduced the number of assets (albeit I am unable to say with precision as to quantum) and also reduced the total amount which is available for division. The applicant should not be seen as responsible for that. The power in s 90SM is to divide what the parties have. If assets have been removed or reduced, the court cannot do justice to one party by ignoring the reduction. An adjustment in favour of the applicant ameliorates that problem.

Maintenance 9.23 As mentioned at the beginning of this chapter, parties to a de facto relationship breakdown had very limited rights to maintenance under state and territory legislation. With the enactment of FLA Pt VIIIAB, parties now have the ability to seek maintenance. The provisions are very similar to those found in Pt VIII. The following table provides a summary of the operative maintenance sections in both Pt VIII and Pt VIIIAB: Pt VIII s 72 s 74 s 75 s 75(2) s 77 s 77A

Description Right to maintenance Power to order maintenance Matters to be taken into consideration Particular factors Urgent maintenance Specification in orders

Pt VIIIAB s 90SF(1) s 90SE s 90SF s 90SF(3) s 90SG s 90SH

s 82 s 83

Cessation of orders Modification of orders

s 90SJ s 90SI

Power of the court 9.24 Section 90SE outlines the power of the court in maintenance proceedings. Applicants will need to satisfy the geographical requirement in s 90SD. The court must also be satisfied of at least the matters in s 90SB. It is anticipated that the court will assess maintenance applications on the same grounds as those found in Pt VIII. The court will need to be satisfied that the conditions of s 90SF are met.

The right to maintenance 9.25 Section 90SF sets out the matters to be taken into consideration in relation to an application for maintenance. In the first instance, the court must be satisfied [page 628] of the matters in ss 44(5) and (6), 90SB and 90SD. The court then moves to apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship. The considerations essentially mirror those found in s 75. Subsection 90SF(4) permits the court to disregard an entitlement to any means-tested benefit in assessing maintenance.

Refer to Adams and Randall [2011] FamCAFC 204.

Timing of application 9.26 The time limitation to bring an action within two years of the de facto relationship breakdown may be waived. An applicant must demonstrate that, at the end of a period of two years after the relationship ended, they could not support themselves without a means-tested benefit. Leave of the court may be sought to bring an application out of time: s 44(6).

An out of time application was made in the matter of McCoy and Chancellor [2014] FamCAFC 62. The parties had separated under the one roof on 10 December 2010 and signed heads of agreement in relation to a property settlement at mediation on 19 November 2012. On 4 February 2013 the appellant, Ms McCoy, withdrew consent to the agreement. On 8 March 2013 Ms Chancellor filed an application with respect to property which was clearly over the two-year time limit. The issue before the original judge and the full court was whether Ms McCoy would suffer hardship should her application not be heard. The Full Court (May, Strickland and Kent JJ) (at [24]) referred to trial judge Turner J’s statement in Chancellor and McCoy [2013] FCCA 740. Her Honour cited Sharp and Sharp [2011] FamCAFC 150 at [43] in respect of what must be considered with an out of time application and said: In summary the Court must take into account the following: (a) There are reasons as to why time limitations exist and careful consideration must be given to an application for leave to proceed out of time.

(b) The Court must be satisfied that hardship would be caused to the applicant if leave to proceed out of time is not granted. (c) Once hardship has been established, the Court must be persuaded that discretion should be exercised to grant the leave to proceed. (d) The Court in considering whether to exercise the discretion must be satisfied that the respondent will not be prejudiced. (e) Where the Court is satisfied that hardship to the applicant will be caused if the leave is not granted, and that granting of leave will not prejudice the respondent, consideration must be had to the circumstances of the matter before leave is granted. In the first instance hardship was found and the trial judge stated the following (Chancellor and McCoy [2013] FCCA 740 at [62]): (a) The applicant has a ‘prima facie’ right as provided in Part VIIIAB Family Law Act 1975 to bring proceedings for a de facto property division. [McDonald and McDonald (1977) FLC ¶90-317; Sharp and Sharp [2011] FamCAFC 150] (b) The pool is substantial and therefore the claim cannot be seen as ‘trifling’. [Whitford and Whitford (1979) FLC ¶90-612] [page 629] (c) It is little consequence that the applicant may not be in ‘necessitous circumstances’. [Whitford and Whitford, above] (d) As the de facto relationship was for 27 years, there

is a ‘reasonable claim to be heard’. [Althaus and Althaus (1982) FLC ¶91-233] (e) As a reasonable claim has been established, the ultimate outcome of the property division, as suggested by the respondent, is not a factor that need be considered in this matter. It is ‘not a decision about whether the claim will succeed’ [Hedley and Hedley [2009] FamCAFC 179] or that ‘the applicant would receive no more or even less, than he or she already owns at law or in equity’. [Whitford and Whitford, above] (f)

It is not just about the ‘financial considerations’ but the ability for the applicant to ‘have the financial and property relations of the parties adjusted and resolved’. [Sharp and Sharp, above]

(g) I accept that the ‘applicant would suffer a substantial detriment as a consequence of the loss of the right to institute the proceedings’ if leave was refused. [Sharp and Sharp, above] The Full Court agreed with the findings of the trial judge and the appeal was dismissed.

The matter of Madin and Palis (2015) FLC ¶93-647 before Finn, May and Strickland JJ was an appeal with respect to whether or not an application had been filed out of time. The trial judge, Howard J, held that the appellant had not filed his application within two years of separation: s 44(5). The Full Court of the Family Court found that the period for the de facto relationship commenced in March 2002 and ended on 9 January 2011. The appellant filed an initiating application on 9 January 2013 and therefore the application was within time as it

was filed before midnight 9 January 2013. The comments by the Full Court at [26] should be noted: … we emphasise that this decision is concerned only with the operation of s 44(5) … and that care should be taken in relying on this decision when applying or interpreting any other legislative provision concerning time periods. The application of each provision will depend on its own particular wording. Time limits are critical and one must always remember to file within them; to fail to do so can lead to a complaint or, worse, disciplinary action.

Superannuation 9.27 Amendments have been made to FLA Pt VIIIB to include de facto couples and superannuation splitting. This enables the court to make orders for superannuation splitting under s 90SM. The following amendments have been made: allocation of property interests of parties to a de facto relationship: s 90MA; meaning of property in relevant de facto financial cause includes the superannuation of a party: s 90MC; [page 630] ‘spouse’ also means a party to a de facto relationship: s 90MD;

‘superannuation agreement’ definition included for de facto partners: s 90MHA (note this is an additional section); and separation declarations for de facto relationships and the meaning of ‘separation’: s 90MP(7)–(12) (note these are additional subsections). Pursuant to Pt VIIIAB, spouses and de facto couples can each have a splitting order made against the same entitlement. Essentially this means that more than one payment split may apply to the same superannuation interest: s 90MX.

Binding financial agreements 9.28 Where parties entered into financial agreements prior to 1 March 2009, under state or territory legislation the agreements will become financial agreements under the FLA if the agreement complies with the provisions in Pt VIIIAB Div 4. It should be noted that for this Part to apply, the de facto relationship must come to an end after 1 March 2009 for the original referring states and territories and 1 July 2010 for South Australia. Where the parties separated prior to this date, the state and territory law will continue to apply. As for married couples under Pt VIIIA, de facto couples can opt out of the FLA when entering into financial agreements. The following table provides a summary of the operative financial agreements sections in both Pt VIIIA and Pt VIIIAB: Pt VIII s 90A None

Description Definitions Geographical requirement

Pt VIIIAB None s 90UA

s 90B s 90C s 90C s 90D None s 90DA s 90DB s 90E s 90F s 90G s 90H s 90J s 90K s 90KA

Pre-relationship agreement During relationship but prior to separation After separation After divorce How state agreements become financial agreements Separation declarations When certain clauses come into effect Requirements for maintenance provisions Means-tested benefit exception What makes agreements binding Effect of death Termination of agreements Setting aside agreements Validity and enforceability

s 90UB s 90UC s 90UD None s 90UE s 90UF s 90UG s 90UH s 90UI s 90UJ s 90UK s 90UL s 90UM s 90UN

[page 631] The points of interest are: Financial agreements require a geographical connection. Essentially both parties must be ordinarily resident in a participating jurisdiction at the time of entering into an agreement: s 90UA. Where parties entered into an agreement under the law of a non-referring state and then reside in a referring state and can establish a geographical connection, then the financial agreement can be transferred: s 90UE.

Where parties terminated their financial agreement or separated prior to 1 March 2009, then the FLA will not apply. Parties must rely on the relevant state or territory law. A court can set aside an agreement where legal advice has not been provided and an independent solicitor’s certificate is not provided in relation to the financial agreement. This is likely to affect agreements made prior to 1 March 2009, as some jurisdictions did not include these requirements. Where parties marry after entering into a financial agreement, that agreement will no longer be binding. Section 90K(1)(aa) deals with setting aside financial agreements where a married party intended to defraud their de facto partner, defeat the de facto party’s interest, or had a reckless regard for it. Section 90UM(1)(d) is stricter than s 106B. Essentially under this subsection, there must be an intention to defraud or defeat a claim, or have reckless disregard for a claim. Refer to Cording and Oster [2010] FamCA 511 for a discussion of financial agreements under Pt VIIIAB where a document was executed before the commencement of the Part.

Setting aside binding financial agreements 9.29 Numerous applications have been filed seeking to set aside binding financial agreements. One would have to question as to whether we should continue to call them binding agreements. Those who seek to set aside financial agreements argue that: the agreement cannot be valid

because the agreement was made under more than one section of the Act; agreements were entered into under duress; a party to an agreement did not provide full disclosure at the time of entering the agreement; agreements fail to comply with technical requirements; the legal advice was lacking in competence; and there were breaches with respect to the essential terms of the agreement.

Is a BFA valid where it refers to more than one section? 9.30 In the matter of Piper and Mueller [2015] FamCAFC 241 the parties met in May 2003, commenced a relationship in May 2004, and a year later they were engaged. On 29 August 2009 they entered into a binding financial agreement which was headed ‘Financial Agreement Pursuant to Section 90B and 90UC of the Family [page 632] Law Act 1975’. The trial judge, Spelleken J, found separation occurred in April 2010. At trial on 21 June 2013 Spelleken J ordered that the following three questions be determined as preliminary questions: whether the agreement dated 29 August 2009 is a ‘Part VIIIAB financial agreement’ within the meaning of that term in the FLA; whether the agreement dated 29 August 2009 is binding on the parties under s 90UJ of the FLA; whether the agreement dated 29 August 2009 should be set

aside under s 90UMJ(1)(e) or s 90UM(1)(h) of the FLA. On 3 December 2014 the trial judge declared that the agreement was a binding financial agreement under s 90UJ of the Act and dismissed the appellant’s application. It should be noted here that the parties did not marry. At trial the appellant contended that the agreement was not a binding financial agreement because it impermissibly purported to be an agreement under both Pt VIIIA and Pt VIIIAB. He also argued that he was not given the advice as required by the Act. The issue before the Full Court was: can a financial agreement be both an agreement under s 90B and s 90UC at the same time? Willis J in Piper and Mueller [2014] FCCA 2659 at [179] and [181] said: … I am not satisfied that the two provisions, s 90B and s 90UC are mutually exclusive … These parties were engaged and therefore contemplating marriage … These parties were in a de facto relationship. I am not satisfied that by making an agreement under both of these sections of the Act, that this is a fatal technical error or fatal to the agreement. The parties in this matter fitted in my view, squarely under each section. … It seems to me that these are the type of technical issues that lead to the introduction of the Efficiency Measures Act 2010 which was in response to Black and Black [[2008] FamCAFC 7], which illustrates what the legislators intended in this remedial legislation, which was not a narrow strict interpretation of the requirements of an agreement.

The Full Court said (at [30], [37] and [38]): [T]here is no reason why a single agreement could not deal with the distribution of their assets on the breakdown of their

de facto relationship or the ending of their subsequent marriage. [T]here is no reason why both types of advice could not be given to a party prior to signing a document containing both agreements. It follows that without more, there is no statutory imperative which requires that these agreements must be contained in separate documents.

The Full Court, in response to the appellant’s contention that he had not been provided with the requisite legal advice, stated (at [88] and [93]): [H]er Honour’s conclusion that the financial agreement is binding within the meaning of s 90UJ is plainly correct and should stand.

[page 633] That conclusion does not offend any principle emerging from Black and the cases which have applied it. Earlier iterations of s 90G required ‘strict compliance’ with requirements for what was to be recorded in the agreement itself and its compulsorily-annexed certificates. The current s 90G and s 90UJ are also to be applied strictly for the reason given in Black: an agreement over which the court has no supervisory role precludes, if binding, access to a court determination of property interests or adjustments to them. That is satisfied by demanding proof of the required matters if the application of s 90UJ is in issue.

The Full Court found the agreement was binding and the requisite legal advice was provided in accordance with the Act’s requirements.

Can interim orders be made albeit a decision on the validity of a binding financial agreement is yet to be made? 9.31 Teh and Muir [2015] FamCAFC 224 before Finn, Strickland and Ryan JJ was an appeal by 36-year-old Ms Tey. The parties had met when Ms Tey and her son arrived in Australia in January 2010 on a temporary visa. Soon after, they began living in Mr Muir’s home. The parties entered into a financial agreement under s 90UC on 19 February 2014 which stated that upon separation all property, regardless of who owned them, would be divided equally. By 15 April 2014 Mr Muir, who was 85 years old, had moved into a nursing home and on 29 May 2014 Ms Tey issued proceedings to enforce the agreement. Mr Muir filed his response by case guardian (his daughter). The response stated the parties ‘were not, and never had been, in a de facto relationship, and that at the time the financial agreement was signed, he did not have the mental capacity to allow him to enter into … a binding agreement’ (at [12]). Mr Muir sought to have the agreement set aside and that the proceeds of sale of his home be paid to him. In the first instance, Dawe J made interim orders that half the proceeds be paid to Mr Muir and the remainder to be held in trust, a restraint on Ms Tey from drawing from any bank account except for her daily needs. Ms Tey appealed those orders claiming the trial judge could not make those orders as there was a valid binding financial agreement. The Full Court dismissed the appeal with costs, Ryan J (who agreed with Finn and Strickland JJ) saying in separate

reasons that by s 31(1)(aa) ‘the primary judge was invested with jurisdiction to determine the various challenges made by the respondent to the validity of the Part VIIIAB financial agreement’ (at [63]). Ryan J continued (at [69]): However, s 34 of the Act confers general power on the Court to make orders (including interlocutory injunctions) … as appropriate provided the Court has jurisdiction (which it has). By way of example, it has been held that s 34 is a statutory source of jurisdiction to make an ex parte ‘Anton Piller’ order in appropriate cases in aid of the Court’s jurisdiction in substantive proceedings properly invoked (In the Marriage of Talbot [1994] FamCA 129) … It follows that the primary judge had power to make the various injunctions under challenge.

The final outcome of this matter can be found at Teh and Muir [2017] FamCA 138 where the Full Court held that at no stage was there a de facto relationship, the [page 634] binding financial agreement was set aside and the funds held in the trust account were for the benefit of Mr Muir. The case should be read in full to ascertain how the parties came to enter into the binding financial agreement and the independent legal advice each party obtained prior to signing.

Should a binding financial agreement be set aside because of the legal advice or adequacy of the terms of the agreement?

9.32 In the matter of Warner and Cummings [2017] FCCA 432 the parties were in a de facto relationship from February 2007 until March 2012. The applicant sought to have the binding financial agreement entered into on 15 July 2013 set aside pursuant to s 90UJ (which details what must be included for an agreement to be binding) or in the alternative s 90UM(5) — in essence, where one of the parties was not provided with legal advice or if it was provided, a signed statement by a lawyer was not provided. The agreement was entered into following separation. The agreement stated the de facto husband would pay the de facto wife an amount that was recorded in the agreement as a sum loaned by the de facto wife to the de facto husband’s pastoral company during the course of the relationship, and otherwise that each party would retain their own property and superannuation, and that any jointly owned property would be split equally. Neville J said (at [9]): Couched in more colloquial terms, in my view, this matter is about the Applicant ‘having his cake and eating it too’. This is to say that the Applicant was seemingly content with the terms of the Agreement struck with his former partner, the Respondent, at the time of signing the Agreement in July 2013. It also seems that he was [still] not unhappy with the Agreement in mid-2014.

His Honour was very critical of the applicant, stating (at [76]): … I noted a number of evidentiary matters that, in my view, exposed the opportunistic and obviously calculated approach of Mr Warner to seek what amounted to an indulgence from the Court to ameliorate, indeed to expunge, his responsibilities under the Agreement.

The judgment provides a very good summary of cases that relate to legal advice and how contractual terms used in agreements should be interpreted. Neville J confirmed the validity of the agreement, stating: Further, as earlier indicated, in addition to what has been said, to the extent that it is necessary to consider or to have regard to it, in my view the terms of s 90UJ(1A)(c) should be applied here. In all of the circumstances, not least the Court’s assessment of the opportunism of the Applicant in bringing the Application, the ‘technical’ nature of any omissions or deficiencies in the Agreement and or advice in relation to it, it would be utterly unjust and inequitable if the Agreement were not to be binding on the parties. The Applicant has sought, long after the event, to renege on the Agreement he had struck with the Respondent, which was properly recorded in that Agreement. He did so only after there was a change in his financial circumstances. And prior to the filing of the Application, for some two years or thereabouts there was no issue raised by the Applicant in relation to the nature, quality or extent of the advice provided to him by his former solicitor: at [125].

[page 635] Also refer to Wallace and Stelzer (2013) 283 FLR 126; (2015) 51 Fam LR 115; (2013) FLC ¶93-566.

Duress and binding financial agreements 9.33 Duress was claimed by the respondent in the matter of Lincoln (dec’d) and Moore [2016] FamCA 547. In fact, the

respondent claimed that the parties were not even friends let along de facto partners. The matter originally came before the Queensland Supreme Court on 6 August 2012 when Mr Moore commenced an action against Ms Lincoln’s company for unpaid wages. Mr Moore subsequently became bankrupt and at the time of this hearing, bankruptcy was yet to be discharged. An application was then commenced by Ms Lincoln in the Federal Circuit Court on 13 August 2012 which was subsequently transferred to the Family Court on 12 September 2012. The parties met in 2009 following the death of Ms Lincoln’s husband after 37 years of marriage. Mr Moore came to inspect some property being sold by Ms Lincoln. They continued to have daily contact and Ms Lincoln stated by the end of that year they were in a de facto relationship. A substantial amount of money was lent to Mr Moore for his personal and business needs which were never paid back to Ms Lincoln. On 5 July 2010 the parties entered into a binding financial agreement essentially stating that Mr Moore would have no access to any of Ms Lincoln’s assets. In October 2010 the parties commenced a business partnership selling construction equipment. In May 2012 Ms Lincoln was diagnosed with cancer and in June the parties separated with Ms Lincoln signing a separation declaration and giving Mr Moore notice that she was ending the partnership. Ms Lincoln died after the proceedings in the family courts commenced and in March 2013 her estate’s legal representatives were substituted. The application sought a declaration of the existence of the de facto relationship and did not seek property orders but rather sought to rely on the

binding financial agreement. The respondent sought to have the agreement set aside. As Mr Moore was an undischarged bankrupt, the court had to first consider his standing. The court held that Mr Moore did not have standing and discussed the considerations a court must take into account (at [34]–[42]). The trial judge then turned to whether there was a binding financial agreement in place. It was held (at [50]) that the agreement met the requirements of s 90UJ. Carew J said that Mr Moore contended that he had only signed the agreement as he was concerned that he would lose his job: [Mr Moore] dismissed the suggestion of a de facto relationship as ‘ridiculous’. He contends that the deceased kept asking him to sign a document and eventually he did because she said — ‘Well, if it is not signed, you will have to finish up working for me’. He contends that he signed the agreement because ‘I didn’t want to lose the job’: at [64].

Mr Moore gave evidence that he was not provided with adequate legal advice and was told to sign the agreement by his lawyer to appease Ms Lincoln. This was denied by the lawyer in cross-examination. [page 636] The evidence provided by the applicant far outweighed the evidence of the respondent as to the existence or nonexistence of the de facto relationship. Carew J held (at [70]– [71]):

I do not accept that the many witnesses relied upon in the applicants’ case imagined the matters about which they gave evidence. The respondent contends that he told Mr V [lawyer] that, prior to signing the agreement, he and the deceased were not in a de facto relationship. Mr V denies this and I accept Mr V’s evidence. Accordingly, where the respondent’s evidence conflicts with the applicants’ witnesses I accept their evidence. To the extent their evidence details observations made after the 5 July 2010 I nevertheless consider such matters are relevant to the issue of credit as against the respondent and it fortifies my view that the respondent’s evidence on this issue was completely unreliable.

Once a declaration was made as to the existence of the de facto relationship, Carew J turned to the issue of setting aside the agreement pursuant to s 90UM. Mr Moore claimed that he signed the agreement under duress. His Honour said with respect to duress: In order for the respondent to succeed with a claim that he entered into the agreement in circumstances of duress he would have to adduce evidence upon which I could find that either the deceased had made a threat of physical harm of such seriousness as to overbear ‘the ordinary power of human resistance’ (Barton v Armstrong (1973) 2 NSWLR 598; [1976] AC 104; Kokl and Kokl (1981) FLC ¶91-078) or some act on the part of the deceased that amounted to ‘illegitimate pressure’: at [76].

Carew J (at [80]) referred to the file notes of Mr Moore’s lawyer (Mr V): Mr V’s file note relevantly records: [Mr Moore] said that her children after the death of

their father a couple of years ago are suspicious that he is after her money which he is not. He said the in-laws are worse, that they question what [Ms A Lincoln] does, but he feels that [once] the agreement is signed, then there will be no problems with that. … … [Mr Moore] was adamant that he would prefer to sign the agreement.

The duress argument failed. This case demonstrates the importance of lawyers maintaining detailed filed notes of discussions with clients.

Protection for creditors and trustees in bankruptcy 9.34 Part VIIIAB affords the same safeguards for creditors and trustees in bankruptcy as under Pt VIII and Pt VIIIA. Creditors and trustees in bankruptcy can rely on s 90SM in particular: Subsection 90SM(10) — creditors are entitled to become parties if they may not be able to recover their debt were an order made and a party is not bankrupt. [page 637] Subsection 90SM(14) — where a party is bankrupt, trustees in bankruptcy must be joined either when the application is

made, or prior to the determination, and the interests of the creditors would be affected if an order were made. Subsection 90SM(15) — a bankrupt party may not make submissions about a vested bankruptcy property without the leave of the court. Subsection 90SM(17) — provides the same safeguards to trustees of personal insolvency agreements. Creditors and trustees of bankruptcy can apply to have s 90SM orders set aside or varied. It should be noted that this also applies to financial agreements.

Duty to end financial relations 9.35 As for married couples, s 90ST imposes the same duty on the court to end financial relations in relation to de facto couples. It should be noted that at the time of writing this edition no High Court matters had been heard in relation to de facto breakdown property matters.

Importance of common law 9.36 Although the division of property on the breakdown of a de facto relationship is now governed in Australia by the FLA and nine state and territory regimes as indicated above, common law principles are still very important. Common law principles will apply where the de facto couple separated before the commencement of the applicable Act. Common law principles are also applicable where a couple has not

lived together for the requisite period of time, where the application is not made within a specified time limit, or where other jurisdictional requirements are not met. Common law principles will also apply to claims by third parties (such as grandparents) for compensation from the pool of assets owned by the de facto couple, and to claims in disputes between parents and children. Moreover, it is important to note that statutory regimes do not oust the general law principles. The general law rights relating to de facto relationships have been preserved alongside the statutory remedies incorporated under the state legislation.

Trusts 9.37 Disputes concerning ownership and rights to property from the breakdown of a de facto relationship may have many of the characteristics of similar applications before the Family Court, but without the certainty. Litigants before the Family Court have recourse to a well-established set of principles under the FLA, but a dispute between de facto parties may give rise to the invocation of an array of remedies, usually centred on the principles of the law of trusts. Before embarking on a study of the various headings under which a remedy might be obtained by a de facto couple in the event of the breakdown of their relationship, [page 638]

it is vital to note that there is an intermingling of the principles between the various trusts and the doctrines of ‘proprietary estoppel’ and ‘restitution’. As a consequence of this, the complexity and even vagueness of some of the principles makes a precise analysis difficult. It is equally important to note that, in many cases, judges use the language of all or some of the remedies. For example, in Public Trustee v Kukula (1990) 14 Fam LR 97; DFC ¶95-090, the plaintiff argued proprietary estoppel, unconscionable conduct, constructive trust, and express and implied contract.

In another example, Bertei and Feher (1999) DFC ¶95-214, Heenan J, in discussing whether a property purchased by the de facto husband but placed in the name of the de facto wife was a gift, citing Malcolm CJ in Kais and Turvey (1994) 17 Fam LR 498, stated (at 77,141): In my opinion, it probably does not matter whether this case is regarded as one of a conditional gift which has failed or as one of constructive trust. Indeed, on the basis of modern analysis, the obligation to return a gift following the failure of a condition may well be regarded as simply an example of the imposition of a constructive trust on the ground that retention of the benefit of a gift made in contemplation of marriage would be unconscionable, when the marriage does not occur because one party does not wish to go on with it, or the engagement to marry is called off by mutual consent.

Clearly, in this case his Honour is discussing whether a particular transaction between a de facto husband and wife was a gift conditional on the parties entering a de jure

marriage. Nevertheless, his Honour’s words are relevant to a broader discussion because they illustrate the intermingling of various doctrines, and the terminology used. In these circumstances, it is easy to see how expensive and timeconsuming the preparation and conduct of a trial can be when counsel must organise evidence for and argue the whole plethora of remedies available.

Trusts generally 9.38 The parties to a de facto relationship may have shared ownership of their property through a joint tenancy or tenancy in common. In other cases, however, where one party to a relationship is seeking to assert an entitlement to property which is in the name of the other party, he or she must rely on equitable doctrines. Put simply, a remedy under an equitable doctrine is that which is fair. While recourse may be had to a variety of equitable doctrines, the main vehicle used is that of intention or contribution. Until 1985, the Australian courts followed the English courts in searching for the common intention, if any, which the parties had in relation to their property. If such common intention was discerned, either through the express words of the parties, or through their conduct in making financial contributions, then the legal title in which the property was held would be the subject of a trust in favour of the parties jointly. There are four types of trusts on which we will concentrate below: 1. express trust (see 9.39); 2. resulting trust (see 9.40);

[page 639] 3. 4.

common intention — constructive trust (see 9.47); and unconscionable conduct — constructive trust (see 9.54).

Express trusts 9.39 If one spouse clearly states that he or she holds certain property for the benefit of the other, then this will amount to an express declaration of trust. The apparent ‘neatness’ of the circumstances, however, may be undermined by the specific writing requirements evidencing such an intention and subsequent trust. All of the states have legislation providing that interests in land cannot be created or disposed of except by evidence in writing, signed by the party to be charged.

In Maks v Maks (1986) DFC ¶95-036, the de facto wife sought a declaration that the de facto husband held several houses in which they had lived together one half on trust for the de facto wife. The de facto wife relied on oral statements alleged to have been made by the de facto husband to the effect that the houses would be hers as well as his. She also sought to rely on a document allegedly written and signed by the de facto husband which constituted a declaration of trust by him in favour of the de facto wife in respect of the house in which they had last lived together. McLelland J held that none of the statements allegedly made by the de facto husband could constitute an effective declaration of trust of any of the property since they were not manifested and proved in writing as required by s 23 of the Conveyancing Act

1919 (NSW). Nor was the de facto wife taken to rely on the doctrine of unconscionability. His Honour found that no circumstances were proved which would render it unconscionable for the husband to rely on the absence of the required evidence in writing. Accordingly, the de facto wife’s claim was dismissed.

This case clearly illustrates the heavy evidentiary burden placed on a litigant who claims an express trust in his or her favour. In other words, when an express trust is pleaded there must be clear and convincing proof not only of the existence but also of the relevant contents of the express trust in writing. In Maks v Maks, the de facto wife might have succeeded if she had been able to show that a denial of the express trust was so inequitable as to amount to ‘fraud’ by her husband. In other words, she might have succeeded if she had been able to show that a type of constructive trust which does not require to be evidenced in writing existed.

Resulting or implied trusts 9.40 A resulting or implied trust is one founded on the unexpressed but presumed intention of a person who purchases or settles property in the name of another. Such a trust may occur where, on the purchase of a property, the title is placed in someone other than the purchaser. In these circumstances, the person in whose name the property is placed is presumed to hold that property on resulting trust for the purchaser.

[page 640]

In Muschinski v Dodds (1985) 11 Fam LR 930 at 933; DFC ¶95020, Gibbs CJ provided guidance about the circumstances in which a resulting trust will be created: Where, on a purchase, a property is conveyed to two persons, whether as joint tenants or as tenants in common, and one of those persons has provided the whole of the purchase money, the property is presumed to be held in trust for that person, to whom I shall, for convenience, refer to as ‘the real purchaser’. However, a resulting trust will not arise if the relationship between the real purchaser and the other transferee is such as to raise a presumption that the transfer was intended as an advancement, or in other words a presumption that the transferee who had not contributed any of the purchase money was intended to take a beneficial interest. It was held in Calverley v Green [(1984) 155 CLR 242; 9 Fam LR 940; FLC ¶91-565] that no presumption of advancement arises where a man puts property into the name of a woman with whom he is living in what is commonly called a ‘de facto relationship’ and, since it has been held that there is no presumption of advancement where a wife makes a purchase in the name of her lawful husband (Mercier v Mercier [1903] 2 Ch 98), there is even stronger reason for holding that no such presumption arises where a woman puts property into the name of her ‘de facto husband’. However, the presumption that there is a resulting trust may be rebutted by evidence that in fact the real purchaser intended that the other transferee should take a beneficial interest.

In Gladdis v Freir (1990) DFC ¶95-092, the Supreme Court of South Australia found that the presumption of a resulting trust was not displaced in a situation where a man and a woman were living together although not in a de facto relationship. The relationship was one of ‘friendship and convenience’ between an elderly couple, who had purchased a property in joint names. The male plaintiff paid the total purchase price of $50,000 and associated costs. The defendant female agreed that she would contribute $30,000. She failed to do so, and subsequently left the property. The plaintiff sought a declaration that the defendant held her half interest on trust for him. Duggan J found that the presumption of a resulting trust was applicable to the circumstances before him. He stated (at 76,203): There was no reason why the plaintiff would have contemplated an unconditional gift of a one-half share in the house to the defendant.

Contribution 9.41 The question arises as to what is considered a suitable contribution to give rise, at least potentially, to a resulting trust. A common example of such a contribution nowadays is where a de facto wife raises a loan jointly with her de facto spouse in order to purchase a home.

In Macchi v Scott (1991) DFC ¶95-104, the de facto husband had contributed $30,000 to the purchase price of the house and the wife $7,500. The parties had jointly borrowed $30,000. Thus, the de facto husband’s overall contribution was $45,000 and the

de facto wife’s was $22,500. Neither party had intended to confer a [page 641] gift of beneficial interest on the other. The court found that there were resulting trusts and the parties, who were registered proprietors as joint tenants, held the house on trust for each other as beneficial owners of a two-thirds share for the husband and a one-third share for the wife. The court held that payments towards stamp duties, legal costs and other expenses were not relevant to interest arising by way of resulting trust. Thus, it might be said that substantial direct financial pre-acquisition contributions are more likely to lead to a resulting trust.

Intention to make a gift 9.42 As a resulting trust is based on the presumed intention of a purchaser or settlor spouse, it is obviously not applicable where the spouse’s presumed or actual intention is to make a gift to his or her partner. That is, the purchaser of the property may be held to have intended a gift and thereby rebutted the presumed intention embodied in the concept of a resulting trust.

In Baars v Brendstrup (1986) DFC ¶95-029, the de facto husband had paid the whole of the purchase price and maintenance costs of a property which was held in the name of both parties as joint tenants. He was held to have intended that the defendant should have an equal interest in the property by way of a gift. Therefore, the court found no resulting trust in his

favour. Any presumption that might have arisen by reason of the husband having contributed the whole of the purchase price was rebutted by the fact that he intended that the wife should take a beneficial interest by way of gift. The court further held that this was not a case giving rise to a constructive trust in favour of the husband. Once it was established that the wife’s legal interest in the property had been acquired by way of gift, there was no scope for the suggestion that it was unconscionable for her to assert her full legal right.

9.43 When dealing with personal property, evidence of a gift is readily satisfied where small items are involved that can be physically ‘delivered’, in other words, when one party hands a piece of property to the other in circumstances that clearly show a donation or intention to divest themselves of the property in question. The matter becomes somewhat more difficult when the property in question is real estate and the relationship between the parties has broken down to such an extent that the matter has to be decided by a court. A further difficulty arises when one of the parties asserts that he or she only intended to make a gift of the use of the property or that the gift was conditional on some event which cannot now take place because of the breakdown of the relationship.

In Guthrie v Millar (SC(WA), Wheeler J, 21 November 1996, unreported), a de facto wife was held to hold equal rights in a property valued at over $1 million after being in a relationship for just over two years. The wife contributed approximately $140,000

[page 642] to the home while the husband paid the rest. The court found that when the husband vested the property upon himself and the wife as joint tenants he effectively made a gift to the wife of one half of the legal and beneficial interest in the property, with the result that the parties were entitled to share equally in the proceeds of any sale of it. Wheeler J said (at [14]): It follows that, at the time of vesting the legal title, the common intention of the parties was that the legal and equitable interest should march precisely together. To make this finding is not to impute to the defendant an intention which he did not have. I have explained that he was very reluctant to create a joint tenancy. However, the taking of a step reluctantly or unwillingly is not necessarily inconsistent with the intention to take it …

A conditional gift 9.44 A donor of property may argue that a gift was subject to an express or implied condition, such as the taking place of a de jure marriage, which was never fulfilled. A lack of fulfilment of the relevant condition may lead to: a forfeiture by the donee; a resulting trust in favour of the donor; or a duty on the receiver of the gift to return ‘profits’ to the donor.

In Muschinski v Dodds (1985) 11 Fam LR 930; DFC ¶95-020, a

woman purchased a house to be held with her de facto husband as tenants in common in equal shares. She did this on the understanding that he would spend time and more than $20,000 renovating the home. He was unable to do so in circumstances that arose without any fault on his part. Consequently, the question arose as to whether the de facto wife had any remedy against the de facto husband when the condition remained unfulfilled. Brennan J stated (at 943): A condition annexed to a gift may be of either two kinds: a condition involving a forfeiture for non-fulfilment or a condition creating merely a personal obligation to fulfil it. A donee who takes a gift to which a condition of the latter kind is annexed incurs an equitable obligation to perform the condition … On balance, I would find that the condition annexed to the gift created only a personal obligation resting on Mr Dodds. Although a failure to fulfil the condition did not involve forfeiture of the beneficial interest given, partial non-fulfilment was not without remedy: Mrs Muschinski might have made a claim for compensation, but she did not do so, she asserted merely a proprietary right, and in that claim she failed.

Improper motives 9.45 It sometimes happens that when parties, whether in a de jure or a de facto marriage, come before the court for adjudication and property settlement, the evidence reveals some shady dealings in the background to the matter: for example, a transfer of a home into the name of the other spouse with the intention to avoid creditors, avoid the claims of a former matrimonial partner, or to avoid taxation.

[page 643] Spouses who do this run the risk that the court will take the supposed transfer at face value to the detriment of the transferring spouse.

In Marriage of Elias (1977) 3 Fam LR 11,496; FLC ¶90-269, a husband and wife were partners in a smash repair business. The real purpose behind the partnership was so that, for taxation purposes, the income of the business could be split between both parties. In fact, the wife contributed little to the business. In 1976, the parties were divorced and the wife sought property orders in her favour under s 79 of the FLA. She claimed legal title to half of the smash repair business. The husband denied that the wife had any legal claim to the business on the basis that it was a partnership in name only. When initially considering the common law ownership rights of the parties, Goldstein J commented (at 11,504): I thus have to consider when approaching the matter of alteration of property interests whether the husband can be heard to say to the Commissioner for Taxation that the smash repair business is half his and half his wife’s and to say to her and this court that it is all his. At common law his Honour found that the wife was entitled to half the partnership property, but then reduced her share to about one-quarter under the discretion contained under s 79. The importance of this case and the particular facts contained in it emphasise that the Family Court will not accept one assertion of ownership in a particular jurisdiction and another in the Family Court.

9.46 One of the fascinating things about the study of law is its evolving nature and the way in which the courts, particularly the higher courts, reflect changes in society. This is particularly so in the case of Muschinski v Dodds (1985) 11 Fam LR 930; DFC ¶95-020, a case which illustrates how the courts use notions of unconscionable behaviour as a basis for a remedy.

Constructive trusts 9.47 The concept of the constructive trust carries with it notions of justice and equity. In granting a remedy under the common law to de facto partners whose relationship has come to an end, the constructive trust is most often used. Integral to an understanding of the constructive trust is the notion of unconscionability, but it is important to remember that a constructive trust is not capable of precise definition. It may be argued that herein lies its usefulness as a vehicle to be used in order to obtain a remedy in circumstances that do not lend themselves to one particular analysis.

In Muschinski v Dodds (1985) 11 Fam LR 930 at 949; DFC ¶95020, Deane J stated: Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.

[page 644] 9.48 When dealing with constructive trusts for the first time, it can be difficult to come to terms with the concept of ‘actual or presumed agreement or intention’ and the meaning of ‘contribution’ — the necessary elements of a constructive trust: see 9.50–9.53.

The Privy Council in Maharaj v Chand [1986] AC 898 at 907 described the application of the constructive trust in the following manner: A contract or an expressed trust as at the time of acquisition may not be established because of lack of certainty or consideration or non-compliance with statutory requirements of writing, but a constructive trust may be established by an inferred common intention subsequently acted on by the making of contributions or other action to the detriment of the claimant party.

9.49 With regard to intention, it should be noted that the courts tend to examine the intention of a party at three levels: 1. actual; 2. implied; and 3. imputed. It is worth remembering that these cases usually come before the court for adjudication precisely because at the time

of entering into the transaction the parties were at their happiest and giving little thought to strict legal and evidentiary requirements. Actual intention 9.50 Actual intention can be quite elusive. This is because, as we have just discussed, detailed and express intentions are not articulated when transactions are conducted in an atmosphere of happiness and total trust. To add further to this elusiveness, by the time the parties reach court their ability to ‘remember’ may be more aligned with self-interest than the strict truth of the transactions. Implied intention 9.51 The basis of implied intention is the behaviour that indicates the actual intention of the owner spouse. In other words, the court is ready to presume the actual intention of the legal owner as indicated by his or her behaviour. Imputed intention 9.52 The concept of imputed intention is the most difficult of the three to understand. It is perhaps best explained by an analogy to the ‘reasonable person’ test. Therefore, the court imputes an intention to one or both of the parties on the basis of what might be expected of reasonable parties in their position. This type of intention is the least favoured in a conservative judicial interpretation of a constructive trust. [page 645]

The orthodox constructive trust 9.53 The orthodox constructive trust is an effective means of recognising property rights at equity, allowing the claimant to ameliorate the lack of legal title to property. It is at its most effective when a claimant can establish intention and contribution.

In Muschinski v Dodds (1985) 11 Fam LR 930 at 950; DFC ¶95020, Deane J said: The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles … Such equitable relief by way of constructive trust will only be properly available if applicable principles of the law of equity require that the person in whom the ownership of property is vested should hold it to the use or for the benefit of another. That is not to say that general notions of fairness and justice have become irrelevant to the content and application of equity. They remain relevant to the transitional equitable notion of unconscionable conduct. Gallop J in Brown and George (1998) 24 Fam LR 58 at 61 cited this portion of Deane J’s judgment to emphasise the more conservative view of a constructive trust and the requirement that its establishment be evidenced by the necessary intention and contribution.

The new constructive trust — unconscionable conduct 9.54 As a result of the High Court’s decision in Muschinski v Dodds, the application of a constructive trust in Australia is no longer determined by the intention of the parties that either party had a particular interest at the date of the purchase of the asset, nor is it dependent on the parties’ intention when they purchased the property. The following case expands the decision in Muschinski v Dodds by giving approval to the use of a constructive trust to prevent one party gaining unjust enrichment to the detriment of the other party.

In Baumgartner v Baumgartner (1987) 164 CLR 137; 11 Fam LR 915; (1988) DFC ¶95-058, the court dispensed with the requirement of common intention. The case involved a de facto couple who had a relationship of nearly four years, during which time a child was born. Both parties to the relationship were employed. The general practice was that the de facto wife gave her full wages to the de facto husband who then paid the general living and household expenses, including mortgage instalments. The de facto wife could not claim a remedy based on a resulting trust as she had made no direct contribution to the acquisition of the property. Nevertheless, the High Court was willing to confer an interest in property under a constructive trust even though the intention of either party to confer a benefit was not apparent. [page 646]

The court held that the case was one in which the parties had pooled their earnings for the purpose of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. The assertion by the male partner, after the failure of the relationship, of sole ownership of a property which was partly financed by funds from the pooled resources amounted to unconscionable conduct so as to attract the intervention of equity and the imposition of a constructive trust. There are certain key elements that can be identified from the judgment of the High Court in the Baumgartner decision that are relevant to the application of a constructive trust. According to the court (at CLR 149): The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, in the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.

9.55 The salient factor of the Baumgartner decision is the court’s willingness to apply a constructive trust to property that has its legal title vested in one party, irrespective of the

fact that no common intention regarding legal title to such property can be identified. The application of the Baumgartner constructive trust, however, is limited to the situation where the parties to the de facto relationship have pooled their earnings for the purposes of a joint relationship in the context of a de facto cohabitation. Moreover, the application of the constructive trust may be limited to the assets acquired by the parties to the de facto relationship for the purposes of that relationship. 9.56 The following propositions may be derived from Baumgartner and Muschinski v Dodds: 1. A constructive trust may be imposed even though the person held to be the trustee had no intention to create a trust or to hold property on trust. 2. An intention to create a trust may be imputed where it is necessary to do so ‘in good faith and in conscience’. 3. Contributions made to a joint endeavour which failed, when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them, should be restored to that contributing party. 4. Contributions, financial and otherwise, to the purpose of a joint relationship are relevant for this purpose. [page 647]

Problem question Fred and Barney met at the French Wine Appreciation Club in

January 2001 when Fred was 38 and Barney 42. Prior to entering into a homosexual relationship, both had been married. Fred had previously been married for seven years and had two children from his marriage; Barney had been married for 12 years and had no children. Fred and Barney became close friends after meeting at the club. Their common interests eventually led to them commencing a de facto relationship in June 1998. They purchased a home together for $950,000 from the proceeds each had received as property settlements from their former spouses. Barney had received the sum of $600,000 and Fred $400,000. Their home was an unencumbered double-fronted terrace in Carlton and was fully furnished by Barney. At the commencement of the relationship, Fred was a barrister, practising primarily in the area of family law. Fred’s income was approximately $285,000 per annum after expenses, and each year his business assets, including his law library and outstanding counsel fees, have been valued in the vicinity of $180,000. Barney assisted him at his chambers during business hours, undertaking general word processing and reception duties four days a week. He was not paid for this work. During the relationship, Fred also established a share portfolio to which he regularly contributed extra capital, investing in blue chip stocks. In their 2015/16 taxation assessment, the portfolio was valued at approximately $380,000, the parties’ home was valued recently at $2.5 million and their joint bank account contained funds contributed from Fred’s wage in the vicinity of $100,000. Fred paid for their living expenses while Barney undertook, with great flair, the homemaker role and generally provided the care for his children when they were there for contact, due to the long hours Fred spent in chambers. Even now, although the children are teenagers, Barney plays a vital role in their lives.

In June 2016, Barney became aware that rather than brushing up on his case law at his chambers of an evening, Fred was having an affair with one of the glamorous men at the wine appreciation club of which they were members. He was furious when he found out and ordered Fred to leave the home. Barney desperately wants to retain the house in Carlton; however, Fred has refused to respond to any informal settlement proposals that he has made, although all questions relating to their personal property have been amicably settled. Advise Barney as to the likely result of an application pursuant to the FLA.

Suggested answer Introduction Before Barney can mount a successful claim under Pt VIIIAB of the FLA, several jurisdictional prerequisites must be satisfied. Each of these will be discussed in turn. In Fred and Barney’s case, the matter will be heard in the Federal Circuit Court or the Family Court. [page 648] Section 90SM of the FLA indicates that a de facto partner may apply to the court for an order for the adjustment of interests with respect to the property of one or both of the partners. The court may also make declarations as to the existing title or rights in respect of the property and make orders giving effect to such declarations: s 90SL. It is clear from the facts that Barney would favour adjustive

rather than declaratory proceedings given that he is seeking orders adjusting his and Fred’s interests in their assets. 1. Jurisdictional requirements Section 90SB indicates that an order for the adjustment of property interests requires Barney to establish that he and Fred were in a de facto relationship for a period of not less than two years. Sections 90SD and 90SK indicate that he must also establish that one or both of the parties lived in Victoria on the date the application was made and that both parties have lived together in Victoria for at least one-third of the relationship or substantial contributions, as referred to in s 90SB(1)(b)(ii), have been made in Victoria by the partner making the application. It would appear from the facts that the parties have predominantly resided in Carlton and as such would satisfy this jurisdictional requirement. It is also likely that Barney would be in Victoria on the date the application is made. It will be necessary to notify Barney that a limitation period applies in relation to such an application to the court, pursuant to s 44(5). The application must be made within two years after the date of separation, unless leave of the court is granted: s 44(6). Barney would need to make an application by not later than June 2018. Note, however, that s 90RC(3) protects the rights of parties who do not meet the jurisdictional criteria to make applications based on state, territory or general law rather than Pt VIIIAB, however in this matter the jurisdictional requirements are met. 2. Is there a de facto relationship? The definition of a domestic relationship is set out in ss 4(1) and 4AA of the FLA. It is clear that the definition extends to same-sex relationships. Moreover, Fred and Barney appear to satisfy most of the other criteria stipulated in ss 4(1) and 4AA. Their

relationship lasted for more than a decade; they had a common residence; their relationship was sexual in nature; they shared finances; and had a commitment to a shared life. Between June 1998 and June 2016, Fred and Barney lived together in a home which they purchased with joint funds. There was considerable financial interdependence between the parties and Barney performed all household duties and provided care to Fred’s children. There was also a considerable degree of mutual commitment and support in that Barney assisted at his chambers and Fred paid their living expenses for the period of the relationship. In addition, it would probably be the case that the parties held themselves out to be in a marriage-like relationship. While they did not have children, this would not entail that they did not have a statutorily recognised relationship. [page 649] 3. Assets and financial resources The assets and financial resources in this case consist of: the real property in Carlton valued at $2.5 million; property in the form of the share portfolio valued at $380,000; property in the form of the parties’ joint bank account containing funds of $100,000; and Fred’s business as a financial resource and business assets including the library and debtors to the value of $180,000. Fred has approximately $68,000 in superannuation (being self employed Fred has not paid much attention to paying money into his superannuation fund) and Barney has $110,000. Further facts would be required in relation to Fred’s business as a barrister in order to ascertain its true value, but it is unlikely to have any value unless he is owed outstanding fees.

4. Assessment of contributions Orders adjusting the interests of the de facto partners in the property of one or both of the parties may be made if they are just and equitable having regard to the following: 1.

financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property or financial resources of one or both of the parties: s 90SM(4)(a) and (b);

2.

contributions including any contributions made in the capacity of homemaker or parent by either of the de facto partners towards the other de facto partner or to the welfare of the family constituted by the partners and, for example, children of one of the parties: s 90SM(4)(c); and

3.

any written agreement entered into by the de facto partners: ss 90UB–UD.

Although s 90SM enumerates contributions to which the court must have regard, the court may consider the approach taken by the Supreme Court of Victoria which held in Hughes v CurwenWalker (1994) 18 Fam LR 625; (1995) DFC ¶95-160 that rigid criteria hampering the exercise of discretion should not be employed. In considering what is ‘just and equitable’ (s 90SM(3)) when adjusting property interests, it is necessary to have regard to the factors enumerated in the Act, rather than additional factors such as ‘future needs’ type considerations: Evans v Marmont; Wallace v Standford; Fuller v Taaffe (1998) 23 Fam LR 702; DFC ¶95-198; Wakeford v Ellis (1998) DFC ¶95-202; see also Hale and Harrison [2014] FamCA in which Cronin J refused to approve consent orders on the basis that they were not just and equitable in relation to the inadequacy of property allotted to the wife. It was held in D v J (1996) DFC ¶95-175 that even though the

court was exercising its jurisdiction pursuant to the Property Law Act 1958 (Vic) rather than the FLA, it was open to the court to follow the broad approach adopted pursuant to the FLA, by first identifying the property and contributions and then making adjustments on either the ‘global’ or ‘asset-by-asset’ approaches. [page 650] Both Barney and Fred made significant direct financial contributions to the original purchase price of the Carlton property, although Barney’s contributions were greater than Fred’s. Barney will argue that he has made indirect financial contributions to the ‘acquisition, conservation and improvement’ of the business assets and to the business as an income-earning resource by foregoing a wage for the clerical duties and child care he has undertaken. It would be open to Barney to argue that the value of his contribution will be indicated by the sum of his foregone wages over the long period of their relationship. Alternatively, if Barney is not able to argue successfully that his foregone wages are an indirect financial contribution, he is likely to be able to argue successfully that he has made non-financial contributions, by way of actual labour, to the acquisition, conservation and improvement of the financial resources and to the related assets of this business. During the period of cohabitation, Fred has been continuously engaged in paid employment and applied a significant proportion of this income to their living expenses. Such contributions can be classified as either indirect financial contributions to the acquisition, conservation and improvement of the parties’ property and financial resources or as contributions to Barney’s welfare. Fred also made significant

direct financial contributions to the acquisition, conservation and improvement of the share portfolio and to the establishment of the funds in the joint bank account. He also brought his business into the relationship: it is not only a financial resource enabling him to earn an income, it also represents a capital contribution. Barney may be able to argue that he has made non-financial contributions by maintaining the Carlton property; however, we would need more facts in relation to the maintenance and improvement undertaken on his part in order to include this. On the facts, Barney should also be able to establish that he has made significant homemaker contributions for the period of the relationship. Further, Barney would also be able to point to the contributions he has made to the welfare of Fred’s children, providing for their care when they attended his and Fred’s home. The valuation of homemaker contributions is not straightforward but increasingly financial contributions should not necessarily be given greater weight. Decisions pursuant to the De Facto Relationships Act 1984 (NSW) have held that homemaker contributions should be credited with a contribution equal to that of a housekeeper. It is likely that Barney’s homemaker contributions will be given greater weight under Pt VIIIAB of the FLA. On the facts, it is most likely that the global approach will be employed as the more appropriate method for assessing the contributions. The capital contributions at the commencement of the relationship are similar, and in the totality of the relationship it could be said that both parties worked to their capacity and treated their assets as joint, particularly in light of Barney’s unpaid labour at Fred’s chambers. As such, a ‘broad brush’ approach is warranted: Hallinan v Witynski (1999) 25 Fam LR 647; DFC ¶95-219; D v J; Reitsema v Reitsema (1991) 15 Fam LR 706; (1992) DFC ¶95-126.

[page 651] Both parties made significant direct financial contributions to the purchase of the Carlton property and while Barney’s was greater than Fred’s, Fred also entered the relationship with a flourishing business with a value similar to the extra financial contributions made by Barney to the real property. In addition, while Fred worked on a full-time basis contributing his wage to the joint living expenses, and assets such as the share portfolio and savings, Barney undertook four days per week unpaid work at Fred’s business for the period of the relationship as well as undertaking the homemaker and ‘parental’ tasks to a much greater degree than Fred. Real rather than token consideration should be given to these non-financial contributions and, as such, Barney would have a strong argument that in spite of the disparity in wages earned by the parties, he should be entitled to a 50:50 split of the assets. Section 90SM provides the court with considerable scope to make orders. Given that Barney wishes to retain the Carlton property, it would be open to Barney to seek, for example, transfer of the property to him. Barney may, however, have to make a payment to in order to satisfy the 50:50 division of assets.

Further discussion 1.

Pursuant to Pt VIIIAB, will Barney (see ‘Problem question’) be eligible to make an application for spousal maintenance? If so, how will the court approach this application?

2.

Pursuant to Pt VIIIB, what application can Barney make

in relation to superannuation splitting? 3.

Should the Family Law Act 1975 (Cth) be amended to ensure that binding financial agreements are in fact binding?

_______________________ 1

This also incorporates domestic relationships.

[page 653]

10 Violence within the Family Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities. Sometimes children who have directly experienced family violence or have been exposed to it go on to become victims or perpetrators of violence later in life, so that the effect of family violence is passed to the next generation. State of Victoria, Royal Commission into Family Violence: Summary and Recommendations, Parl Paper No 132 (2014– 16), March 2016

Introduction 10.1 For at least 30 years, there has been knowledge and recognition of the damage caused by violence within the family. So, too, has there been a recognition of the harmful effects of this violence on women and, to a lesser degree, on children. It has only been in the last 10 to 15 years that there has been recognition that being a witness to abuse and violence may have a lasting negative impact on the mind of a

child. Despite this recognition worldwide and in Australia, legal change, one could argue, has been inexorably slow. There is change on the horizon with some states such as Victoria conducting a royal commission into family violence which delivered its report and 227 recommendations in March 2016. In the May 2017–18 budget the Andrews Labor Government promised to address the entire 227 recommendations, pledging $1.9 billion. Since the last edition of this book, a number of states have amended their family violence legislation with a stronger focus on protecting victims, and in particular children. Many have followed the Victorian legislation which protects affected family members from cross-examination by the respondent where family violence applications are being contested. Ideally, an academic lawyer should write with detachment, whatever the topic. Sometimes this simply is not possible, particularly in the face of considerable research into family violence showing that the millions of dollars spent, and words written on methods of prevention, have made little or no difference. The Victorian initiative gives some hope that the government has recognised issues cannot be resolved without a funding injection. It is with some sadness that in a year where Australia was showing leadership in the area of family violence that other countries [page 654] such as Russia made announcements that demonstrate their lack of insight into the impact and seriousness of family violence. In January 2017 more than 85 per cent of Russia’s

Duma approved a bill that sees ‘moderate’ violence within families as an administrative, rather than criminal offence. The bill was signed of by President Putin in February 2017. The passing of the bill was reported worldwide and the punishment described as: The punishment carries a fine of up to 30,000 rubles ($507), an arrest up to 15 days, or compulsory community service up to 120 hours. In cases of repeated assaults, a defendant faces a fine of up to 40,000 rubles ($676), compulsory community service for up to six months, or being held under arrest for up to three months.1

The Independent newspaper reported: According to Russian interior ministry estimates, 40 women a day and 14,000 women a year die at the hands of their husbands or spouses, while 600,000 face violent domestic abuse each year.2

The stark reality is that violence to women and children and, in some cases, to men, continues day after day and year after year. In the Preamble to the United Nations Declaration on the Elimination of Violence against Women, the assertion is made that violence against women is a manifestation of historically unequal power roles in society and, therefore, the eradication requires not only analysis of the act but also of society as a whole. Valid as this may be, it would seem to the authors that the time for analysis and the outlay of vast sums of money on yet another report or strategic plan is long past. Powerful brains would, it is submitted, be better engaged in educating society, not with more words, and high-sounding promises, but by practical long-term solutions. In the meantime, the abuse continues unabated. On 30 May 2014 the Victorian Coalition Government announced another

funding injection of $30 million to protect and support women and children at risk of family violence. This is commendable but what is lacking is funding for services that support safe interaction between children and a parent and programs that focus on behaviour change. At the time of writing this edition the 2017–18 Victorian state budget was yet to pass parliament but if it does, funding will go to services such as 17 support and safety hubs funded at $448.1 million; victim assistance ($270.8 million); Victorian legal system enhanced response to family violence ($269.4 million); and housing ($133.2 million).3 The Turnbull Federal Government has pledged in its 2017– 18 budget more than $80 million towards the family law system: $12.7 million to establish Parenting Management Hearings; $10.7 million for additional family consultants to deal with family law cases; $3.4 million for additional domestic violence units; and a [page 655] $55.7 million boost to Community Legal Centres and Aboriginal and Torres Strait Islander Legal Services.4 The family courts often make orders for children to spend time with a parent under supervision in an effort to allow them to have a relationship with the parent they do not live with but in a safe and secure environment to ensure they are no longer at risk. Children’s contact centres are publicly funded organisations that provide that opportunity. In many cases the parent who requires supervision has been violent, may have drug and alcohol dependencies, mental health

issues or simply have had limited contact with the child/ren. Contact centres not only provide safe and positive environments for children, they also assist the parent in developing acceptable behaviour and focusing on the best interests of the child. Unfortunately, these centres are underfunded and waiting lists can range from three months to three years. There appears to be no additional funding in the Federal Government’s 2017–18 budget for this much needed and sought after service. Behaviour change programs offer participants the opportunity to develop more satisfying relationships, learn about abusive behaviour, challenge the way they think and act and learn how to firstly respect themselves and then others. Importantly, the programs focus on individuals taking responsibility for their actions and acknowledging how their past behaviours have impacted on those affected by their violence. Such services continue to be under funded and waiting lists continue to grow. In Australia, at least, it seems that very public incidents of violence with tragic outcomes, such as a parent killing their child in a public park or a man killing his de facto wife following court proceedings, have finally led to at least one state injecting serious funding into a system and a society that was broken. We must all continue to be educated on the impact of family violence and in particular continuously work towards making our society more inclusive, respectful and safe. A submission to the Victorian Royal Commission into Family Violence concluded: There is no comparison between the response today and that of 2000. We can point to the failures today — and there are many. However, the failures of the system should not be

confused with lack of progress. We have come a long way from women self-referring, women not reporting to police, from police not drawing the dots between family violence and crime and domestic murder. I acknowledge how far we have come since those dark days. The days of an isolated women’s service response are gone.5

Nevertheless, society cannot afford to be complacent. Alcohol and drugs play a terrible part in the lives of many children. It is no longer unusual to find both a mother and a father without the skills, nor indeed the will, to raise children. The children are forced to become the ‘parents’ of the parents while suffering neglect and often lack of every amenity. For matters involving families in need of every service which a government may offer, see Atkinson and Atkinson [2017] FamCA [page 656] 274; Belmore and Belmore [2017] FamCA 276; Cohen and Green [2017] FamCA 251; Tallant and Kelsey [2017] FamCA 210; Trevor and Denton [2017] FamCA 261; Whitehall and Warren [2017] FamCA 283; Meekin and Cline [2017] FamCA 264.

World Health Organization — definition of violence 10.2 The World Health Organization (WHO) was established in 1948 as a specialised agency of the United Nations and serves as the directing and coordinating authority for international health matters and public health.

The World Report on Violence and Health was commissioned in 1999, and involved over 100 experts in the prevention of all types of violence from around the world. In 2002, the World Report on Violence and Health was launched.6 Interpersonal violence, defined by the WHO as violence between individuals or small groups of individuals, is an insidious and frequently deadly social problem which includes child maltreatment, youth violence, intimate partner violence, sexual violence and elder abuse. It takes place in the home, on the streets and in other public settings, in the workplace and in institutions such as schools, hospitals and residential care facilities. The direct and indirect financial costs of this violence are enormous, quite apart from the social and human costs that cause untold damage to the economic and social fabric of communities and entire countries. The WHO 2002 World Report on Violence and Health, prompted by research demonstrating the substantial physical and psychological impact of violence, has established violence as a public health issue globally.7 In November 2016 the WHO updated its fact sheet on violence against women which includes these startling statistics: Global estimates indicate that about one in three (35 per cent) women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime. Most of this violence is intimate partner violence. Worldwide, almost one-third (30 per cent) of women who have been in a relationship report that they have

experienced some form of physical and/or sexual violence by their intimate partner in their lifetime. Globally, as many as 38 per cent of murders of women are committed by a male intimate partner.8 Violence against women 10.3 With regard to violence directly against women, the WHO favours the United Nations definition which is contained in a human rights instrument. [page 657] The UN Declaration on the Elimination of Violence against Women (1993) defines violence against women as: … any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Violence against women arises from a combination of individual biological and psychological characteristics as well as social, economic and political factors. The definition of violence and abuse to children is lengthy and disturbing. Violence and abuse to children 10.4 Child abuse and neglect are problems of epidemic proportions. Despite many barriers to reliably estimating the amount of child abuse and neglect, there is no doubt as to

the significance of the resulting social damage. It is estimated that up to 40 million children could be the victims of child abuse every year around the world. In fact, child abuse and neglect are doubly damaging, inflicting a first wave of destruction at the time of abuse, and a second wave years later — this comes in the form of increased risk among previously abused adolescents and young adults of becoming perpetrators and victims of both interpersonal and selfdirected violence.9 Forced marriages 10.5 Plan International Australia on their website state: ‘One in three girls in the developing world is married by the age of 18. Despite being prohibited by international human rights law and many national laws, child marriage continues to rob millions of girls of their childhood, forcing them out of education and into a life of poor prospects.’ It is said that ‘15 million girls marry before the age of 18 each year — the equivalent of one every two seconds. If we don’t act now, more than 140 million girls will become child brides by 2020’.10 In May 2013 Plan International Australia released a report, ‘A Girl’s Right to Say No to Marriage’, which stated that of the 39,000 girls under the age of 18 who marry every day around the world, one in three are aged under 18 years and one in nine are aged under 12 years.11 This is a total violation of children’s human rights. This same report found that in Australia there were more than 250 forced marriages of children in the past two years. In 2013 Australia enacted laws making forced marriages illegal. The Criminal Code Act 1995 (Cth) s 270.7A provides that a marriage is a forced marriage if:

… because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without freely and fully consenting.

The section further states that a marriage that is void, invalid or not recognised by law includes a marriage where the party to the marriage has not freely or fully [page 658] consented to the marriage (for example, because of natural, induced or age-related incapacity). The penalty for causing a person to enter into a forced marriage is up to seven years imprisonment: s 270.7B. The Federal Attorney-General’s Department, together with government and civil society organisations, held forced marriage workshops in each state and territory in May–June 2017.12 Refer to Chapter 4 for a discussion on how children can extricate themselves from forced marriages.

Recent statistics 10.6 The Australian Bureau of Statistics (ABS) released the Personal Safety Survey (Australia) in 2012. At the time of publishing this edition, these were the latest statistics available. The survey found: 8.7 per cent of all men aged 18 years and over (737,100) had experienced violence in the 12 months prior to the survey.

5.3 per cent of all women aged 18 years and over (467,300) had experienced violence in the 12 months prior to the survey. It was estimated that 8.5 per cent of all men aged 18 years and over (723,400) and 4.6 per cent of all women aged 18 years and over (403,200) had experienced physical violence in the 12 months prior to the survey. Further, 1.2 per cent of all women aged 18 years and over (102,400) had experienced sexual violence in the 12 months prior to the survey. The ABS released another report in 2014, Recorded Crime — Victims Australia, 201413 which found that: The number of victims of family and domestic violence related homicide offences as recorded by police was: –

New South Wales — 30 victims (or 4 per million persons);

–

Victoria — 32 victims (or 5 per million persons);

–

Queensland — 13 victims (or 3 per million persons);

–

South Australia — 5 victims (or 3 per million persons);

–

Western Australia — 11 victims (or 4 per million persons); and

–

Northern Territory — 4 victims (or 16 per million persons).

There were no recorded victims of family and domestic violence related homicide in the Australian Capital Territory.

[page 659] The number of victims of family and domestic violencerelated assault offences as recorded by police was: –

New South Wales — 28,780 victims (or 383 victims per 100,000 persons);

–

South Australia — 5,691 victims (or 338 victims per 100,000 persons);

–

Western Australia — 14,603 victims (or 568 victims per 100,000 persons);

–

Northern Territory — 4,287 victims (or 1,749 victims per 100,000 persons); and

–

Australian Capital Territory — 615 victims (or 159 victims per 100,000 persons).

The number of victims of family and domestic violence related sexual assault offences as recorded by police was: –

New South Wales — 800 victims (or 11 victims per 100,000 persons);

–

Victoria — 1,321 victims (or 23 victims per 100,000 persons);

–

Queensland — 36 victims (or 8 victims per million persons);

–

South Australia — 249 victims (or 15 victims per 100,000 persons);

–

Western Australia — 544 victims (or 21 per 100,000 persons);

–

Northern Territory — 88 victims (or 36 per 100,000 persons); and

–

Australian Capital Territory — 36 victims (or 9 per 100,000 persons).

For victims of family and domestic violence related assault, there were: –

four times as many female victims (4,534) as male victims (1,157) in South Australia;

–

four times as many female victims (3,482) as male victims (807) in the Northern Territory;

–

three times as many female victims (10,648) as male victims (3,860) in Western Australia;

–

three times as many female victims (465) as male victims (145) in the Australian Capital Territory; and

–

twice as many female victims (19,488) as male victims (9,261) in New South Wales.

For victims of family and domestic violence related sexual assault, there were: –

12 times as many female victims (230) as male victims (20) in South Australia;

–

12 times as many female victims (81) as male victims (7) in the Northern Territory;

–

seven times as many female victims (1,147) as male victims (165) in Victoria;

–

seven times as many female victims (471) as male victims (70) in Western Australia;

– –

six times as many female victims (692) as male victims (114) in New South Wales; and three times as many female victims (29) as male victims (9) in the Australian Capital Territory. [page 660]

In Queensland, there were 36 female victims and no male victims of family and domestic violence related sexual assault recorded by police. People aged 20–34 years old comprised: –

49 per cent (2,105 victims) of all victims of family and domestic violence related assault in the Northern Territory;

–

46 per cent (6,761 victims) of all victims of family and domestic violence related assault in Western Australia;

–

44 per cent (2,482 victims) of all victims of family and domestic violence related assault in South Australia;

–

44 per cent (269 victims) of all victims of family and domestic violence related assault in the Australian Capital Territory; and

–

39 per cent (11,224 victims) of all victims of family and domestic violence related assault in New South Wales.

Violence to children — general terms 10.7

Child abuse or maltreatment constitutes all forms of

physical and/or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power. 10.8 Physical abuse Physical abuse of a child is that which results in actual or potential physical harm from an interaction, or lack of an interaction, which is reasonably within the control of the parent or person in a position of responsibility, power or trust. There may be single or repeated incidents. 10.9 Emotional abuse Emotional abuse includes the failure to provide a developmentally appropriate, supportive environment, including the availability of a primary attachment figure, so that the child can develop a stable and full range of emotional and social competencies commensurate with her or his personal potentials and in the context of the society in which the child dwells. There may also be acts towards the child that cause or have a high probability of causing harm to the child’s health or physical, mental, spiritual, moral or social development. These acts must be reasonably within the control of the parent or person in a relationship of responsibility, trust or power. Acts include restriction of movement, patterns of belittling, denigrating, being made a scapegoat, as well as threatening, scaring, discriminating, ridiculing or other non-physical forms of hostile or rejecting treatment of a child. 10.10 Neglect and negligent treatment Neglect is the failure to provide for the development of the child in all

spheres — health, education, emotional development, nutrition, shelter and safe living conditions — in the context of resources reasonably available to the family or caretakers which causes, or has a high probability of causing, harm to the child’s health or physical, mental, spiritual, moral or social [page 661] development. This includes the failure to properly supervise and protect children from harm as much as is feasible. 10.11 Sexual abuse Child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violate the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust or power, the activity being intended to gratify or satisfy the needs of the other person: Report on the Consultation on Child Abuse Prevention, Geneva, 29–31 March 1999. 10.12 A more recent report, Child Protection Australia 2014–2015 (Australian Institute of Health and Welfare), looked at the national figures of child abuse activity annually, summarised below:14 one in 35 children received child protection services, with 73 per cent being repeat clients;

in 2014–15, 151,980 children received child protection services. This equates to one in 35 Australian children aged 0–17 who had an investigation, care and protection order and/or were placed in out-of-home care; this was a 6 per cent rise over the past 12 months, from 143,023 children in 2013–14; three in five (60 per cent) of these children were the subject of an investigation only (that is, they were not subsequently placed on an order or in out-of-home care), while 8 per cent were involved in all three components of the system; almost three-quarters (73 per cent) of these children were repeat clients in 2014–15, that is, they had been the subject of an investigation, care and protection order and/or out-ofhome care placement in a previous financial year. Substantiation rates were stable despite longer term increases in numbers; rates of substantiated child abuse and neglect have remained relatively stable since 2012–13, at around 8.0 per 1,000 children. This is despite an increase in the number of children who were the subject of substantiations, which has risen by 35 per cent since 2010–11 (from 31,527 to 42,457 in 2014–15); one in five children were the subjects of multiple substantiations in 2014–15; in 2014–15, Aboriginal and Torres Strait Islander children were seven times as likely as non-Indigenous children to be receiving child protection services (146.4 per 1,000 children compared with 20.5 for non-Indigenous children);

emotional abuse and neglect were the most common primary and co-occurring types of substantiated abuse and neglect; [page 662] during 2014–15, there were 12,948 foster carer households and 18,401 relative/kinship carer households with a placement; just over half (52 per cent) of foster carer households and almost two-fifths (39 per cent) of relative/kinship carer households had more than one child placed with them at 30 June 2015. United Nations Convention on the Rights of the Child 10.13 As a signatory to the United Nations Convention on the Rights of the Child (see Chapter 5), Australia must submit periodic reports to the Committee on the Rights of the Child (the Committee) as to Australia’s observance of the Articles in the Convention. The latest report at the time of publication was Concluding Observations — Australia, Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 15 June 2012. All references in this report to ‘State party’ is a reference to Australia. In the report the Committee commended Australia on the adoption of the following legislation, becoming signatories to optional protocols and plans: Human Rights (Parliamentary Scrutiny) Act 2010 (Cth);

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) (referred to in detail in Chapter 5); Education and Care Services National Law Act 2010 (Cth); Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (in 2007); Optional Protocol to the Convention against Torture and other Inhuman or Degrading Treatment or Punishment (in 2009); Convention on the Rights of Persons with Disabilities (in 2009); Optional Protocol on the Rights of Persons with Disabilities (in 2009); and Optional Protocol to the Convention on the Elimination of Discrimination against Women (in 2008). The Committee also welcomed the following institutional and policy measures: National Plan to Reduce Violence against Women and their Children 2010–2022 (in 2010); National Framework for Protecting Australian Children 2009–2020 (in 2009); National Early Childhood Development Strategy (in 2009); creation of the National Youth Forum (in 2008); National Apology to the Stolen Generations regarding the Aboriginal and the Torres Strait Islander Children (in 2008)

and the National Apology by the Prime Minister to the Forgotten Australians and Former Child Migrants (in 2009); and National Integrated Strategy for Closing the Gap in Indigenous Disadvantage (in 2008). [page 663] The Committee raised the following concerns (note this is not a comprehensive list — the report should be read in its entirety): All previous recommendations had not been implemented, particularly those on the reservation to Article 37(c) of the Convention, legislation, coordination, respect for the views of the child, freedom of association, corporal punishment, and the administration of juvenile justice (observation 8). Article 37(c) states: ‘Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.’ There continues to be no comprehensive child rights Act at the national level giving full and direct effect to the Convention in Australia’s national law. Only two Australian states have passed such legislation. The Committee noted

that due to Australia’s federal system, the absence of such legislation has resulted in fragmentation and inconsistencies in the implementation of child rights across its territory, with children in similar situations being subject to variations in the fulfilment of their rights depending on the state or territory in which they reside (observation 11). The Committee remains concerned at 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 to Reduce Violence against Women and their Children, the National Framework for Protecting Australian Children 2009–2020 and the ‘National Early Childhood Development Strategy’ (observation 15). There is a lack of resources given to the National Children’s Commissioner. The Committee was also concerned at the inadequacy of Aboriginal and Torres Strait Islander representation in the existing children’s rights independent monitoring mechanisms and other related institutions (observation 17). Australia does not use a child-specific approach for budget planning and allocation in the national and state/territories level budgets, thus making it practically impossible to identify, monitor, report and evaluate the impact of investments in children and the overall application of the Convention in budgetary terms (observation 19). The Committee is concerned that the principle of the best interests of the child is not widely known, appropriately integrated and consistently applied in all legislative,

administrative and judicial proceedings and in policies, programs and projects relevant to and with an impact on children. In this context, the Committee is particularly concerned at the inadequate understanding and application of the principle of the best interests of the child in asylumseeking, refugee and/or immigration detention situations (observation 31). [page 664] The Committee remains concerned that there continues to be inadequate fora for taking into account the views of children who are below the age of 15 and/or of Aboriginal or Torres Strait Islander descent. The Committee is further concerned that there are inadequate mechanisms for facilitating meaningful and empowered child participation in the policies and decision making affecting them in schools. Furthermore, the Committee is concerned that Australia’s Migration Act 1958 (Cth) does not provide for the compulsory separate interviewing of children, who arrive with their families, by immigration officials (observation 33). The Committee regrets that notwithstanding its previous recommendation corporal punishment, in the home and some schools and alternative care settings, remains lawful throughout Australia under the label of so-called ‘reasonable chastisement’ (observation 43). The Committee is gravely concerned at the high levels of violence against women and children prevailing in the

country and notes that there is an inherent risk that the coexistence of domestic violence, lawful corporal punishment, bullying and other forms of violence in the society are interlinked, conducing to an escalation and exacerbation of the situation. The Committee is particularly concerned that: (a) women and children particularly affected;

of

Aboriginal

origin

are

(b) sterilisation of women and girls with disabilities continues; (c) programs for the reintegration of child victims of domestic violence remain inadequate including because of the absence of monitoring systems for child victims who are reintegrated with their families; (d) there is a lack of attention and specific procedures in cases where family members are the perpetrators of violence and/or women are perpetrators rather than victims; (e) there are no regular and systematic evaluations of the existing measures addressing violence against children in the school, the internet and other contexts (observation 46). In relation to abuse and neglect the Committee remains concerned that the rates of domestic violence continue to be high and that the training approaches adopted by Australia to recognise 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 (observation 55).

Family Court of Australia — definition of violence 10.14 Section 4 of the Family Law Act 1975 (Cth) (FLA) states that family violence has the meaning given by s 4AB: (1) 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.

[page 665] (2) 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. (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. (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or (c) 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 (d) 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 (e) 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.

Section 4(1) also defines ‘abuse’ in relation to a child: ‘abuse’, in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

[page 666] (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child.

The Family Court developed its Family Violence Best Practice Principles as part of its Family Violence Strategy in March 2009. Since then the principles have been revised, with the 4th edition released in December 2016. The amendments were made after the court reviewed the following publications: Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (Family Law Council); Safety First in Family Law (Women’s Legal Services Australia); Third National Plan to Reduce Violence Against Women and Their Children (Council of Australian Governments (COAG)); and the National Summit on Reducing Violence against Women and their Children ((COAG) held in Brisbane in October 2016).15 The Federal Government in May 2017 announced the first

comprehensive review into the family law system since the commencement of the FLA in 1976 which they claim will ‘pave the way for long term fundamental reform to better meet the needs of modern Australian families’.16 The FLA (as previously discussed in Chapter 5) was designed to provide better protection for children and families at risk of violence and abuse by: prioritising the safety of children in parenting matters; changing the definitions of ‘abuse’ and ‘family violence’ to better capture harmful behaviour; strengthening advisers’ obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children; ensuring that courts have better access to evidence of abuse and family violence by improving reporting requirements; and making it easier for state and territory child protection authorities to participate in family law proceedings where appropriate. The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA. They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.17 [page 667]

Strategies and the Family Law Act 10.15 There are ongoing attempts to combat the issue of family violence. The reports, strategies and amendments to the law continue as do the allegations of family violence. The majority of cases that come before the Family Court of Australia and the Federal Circuit Court of Australia with respect to children involve an element of family violence, sometimes perpetrated by one parent and in some cases by both. The authors found when reviewing the matters before the courts over the past two years that there has been a significant increase in cases where judges are making orders that prevent parents from physically disciplining their children. (Refer to Chapter 5.) 10.16 In February 2006, the then Attorney-General, the Hon Philip Ruddock MP, announced the government’s Family Law Violence Strategy (the Strategy). The Strategy formed part of the Liberal Government’s significant family law reform agenda and aimed to improve the handling of family violence and child abuse allegations in the family law system. The Attorney-General stated: Family violence of any sort is unacceptable and violence involving children is especially abhorrent. Through the Strategy, the Government is working towards a family law system where cases involving family violence or child abuse are dealt with quickly, fairly and properly. As part of the Strategy, the Government will fund the Australian Institute of Family Studies to conduct independent research on how allegations of family violence and child abuse are raised and addressed in the family law system.

The Attorney-General spoke of the concern of the Commonwealth Government that some cases of family violence and child abuse raised in family law proceedings were not receiving the priority they deserved from the state and territory agencies responsible for investigating them. He therefore requested that the Family Law Council examine strategies to ensure that Commonwealth and state and territory laws and agencies could better work together in these cases. It was claimed that the ultimate benefits to flow from the Strategy would be five-fold. Therefore, the relevant authorities would: 1.

gain a better understanding of how family violence and child abuse issues are dealt with in family law proceedings;

2.

identify how the proposed changes to the FLA and the planned family relationship centres and other support services will help address family violence and child abuse issues;

3.

work collaboratively with the states and territories to ensure that allegations of family violence and child abuse that arise in family law proceedings are investigated promptly and thoroughly;

4.

work with the courts to improve their processes for dealing with cases where allegations of family violence and child abuse are raised; and

5.

engage with what the government calls stakeholders, to identify further areas of improvement. [page 668]

Following this inquiry, the FLA was reformed in 2006. Issues of child abuse and family violence were highlighted and given some prominence, particularly in relation to the best interests of children. In September 2009, the then Labor Government through the Minister for the Status of Women, Tanya Plibersek, and Attorney-General, Robert McClelland, launched a report, Domestic Violence Laws in Australia, at the inaugural Ministerial Council on Family Violence. The report provided an overview of Commonwealth, state, territory and New Zealand legislation and was used to develop the Commonwealth Government’s National Plan to Reduce Violence Against Women. The report was prepared by the Australian Government Solicitor for the National Council to Reduce Violence against Women and their Children and provided an analysis of overlaps and potential gaps between the FLA and state and territory domestic violence protection orders. It also examined the registration process for domestic violence protection orders and ‘portability’ between jurisdictions, an important aspect for consideration by the Standing Committee of Attorneys General which considered options for a national register of protection orders to better protect victims. In 2011 the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 moved through Federal Parliament and came into effect on 7 June 2012. This was yet another attempt by the government to highlight its concerns over the impact of family violence and to turn policy into law. The question is: will the amendments make any significant difference in eradicating or at least lessening

family violence in our society? This will be discussed further in this chapter. A ‘National Plan to Reduce Violence against Women and their Children 2010–2022’ was released in 2011. In the foreword to this document it is said: The National Plan to Reduce Violence against Women and their Children 2010–2022 (the National Plan) brings together the efforts of governments across the nation to make a real and sustained reduction in the levels of violence against women. It is the first plan to coordinate action across jurisdictions. It is the first to focus strongly on prevention. It is the first to look to the long term, building respectful relationships and working to increase gender equality to prevent violence from occurring in the first place. It is the first to focus on holding perpetrators accountable and encourage behaviour change.

The National Plan includes four three-year plans and seeks six national outcomes through the implementation of a wide range of strategies. Stage 1 is ‘building a strong foundation’ (2010–2013); Stage 2 is ‘moving ahead’ (2013–2014); Stage 3 is ‘promising results’ (2016–2019); and the final stage is ‘turning the corner’ (2019–2022). The six national outcomes are: 1.

Communities are safe and free from violence.

2.

Relationships are respectful.

3.

Indigenous communities are strengthened.

4.

Services meet the needs of women and their children experiencing violence.

5.

Justice responses are effective.

6.

Perpetrators stop their violence and are held to account. [page 669]

A range of values and principles guided the development of the National Plan which include: violence occurs across all ages, races and cultures, and socioeconomic and demographic barriers, although some women are at higher risk; every person, no matter who they are, has a right to be safe and live in an environment that is free from violence; violence is unacceptable; holistic services and supports will be provided for victims and survivors of violence; everyone has the right to access and participate in the justice process; governments acknowledge the legacy of past failures in respect of Indigenous women and need new collaborative approaches; and responses to children exposed to violence prioritise the safety and long-term wellbeing of children. The Third Action Plan was launched in October 2016 by Prime Minister Turnbull.18 It outlines 36 practical actions within the following six national priority areas, to be undertaken over the next three years: National priority area 1: Prevention and early intervention;

National priority area 2: Aboriginal and Torres Strait Islander women and their children; National priority area 3: Greater support and choice; National priority area 4: Sexual violence; National priority area 5: Responding to children living with violence; and National priority area 6: Keeping perpetrators accountable across all systems.

Terminology 10.17 Deciding on the title of this chapter was difficult. The terms ‘domestic violence’ and ‘family violence’ are often used, but the inference of these terms is that such violence is part of the private sphere and therefore not subject to the same scrutiny as violence committed in the ‘public’ domain. A clear picture of the impact of such violence is blurred by their usage. Although the phrase ‘violence within the family’ may have similar inferences to ‘domestic violence’ or ‘family violence’, it was chosen in an effort to emphasise that there may be violence inflicted within a family by one member, rather than the family as a whole being violent. Another problem with the available terminology is that it suggests a gender neutrality which [page 670] is not borne out by the research and statistics available. One

of the most common forms of violence against women is that carried out by an intimate male partner. This is in almost complete contrast to the situation for men who, in general, are much more likely to be attacked by a stranger or an acquaintance than by someone in their close circle of relationships.19 This is not to say, however, that all violence within a family group is male towards female. For example, women may abuse men or children, same-sex couples may be involved in partner violence, and the abuse of the elderly appears to be a sad reality.20 10.18 The Victorian Royal Commission into Family Violence includes 42 recommendations that reflect family violence and diversity. The non-gender-specific definition of family violence adopted by the parliament and various courts that deal with the family on a state and national level, valid as it may be in a general sense, does not reflect the true face of family violence. Statistics indicate that in the vast majority of cases, one member of the family perpetrates family violence only. Almost all reports and available statistics show that the infliction of violence on the family comes from a male.21 We know that family violence also occurs against men but statistically significantly lower than women. The ‘One in Three Campaign’, a group of diverse advocates who raise awareness of male victims of domestic violence, state that almost one in three males are victims of family violence. 10.19 The former Chief Justice of the Family Court, Alistair Nicholson, also made it plain that he was mindful of the precarious position of some women and children within a family group, when he stated:

… abuse against women and children continues to dominate the lives of far too many Australian families. The consistent research findings in this area tell us that many adults who are exposed to violence in their families of origin will transmit violent behaviour patterns to their children and/or will expect that this is a usual characteristic of family life. Obviously for the safety of successive as well as present generations the cycle must be broken: cited in (1995) 9 AJFL 1, Foreword.

Types of abuse 10.20 Physical assault is a common form of violence within the family, but sexual, psychological, social and financial abuse may be components of an overall abusive situation. The following discussion of the components of violence within the family is taken from K Healey (ed), Issues In Society: Violence Within the Family, Spinney Press, Balmain, 1998, p 1; see also New South Wales Child Protection [page 671] Council, Child Abuse and Domestic Violence — A Child Protection Perspective, Sydney, 1996. 10.21 In the material that follows, the victim of abuse is assumed to be the female partner, and the perpetrator the male partner. This reflects the statistical data available, but does not attempt to deny the fact that abuse can occur in other configurations. Although we are not entirely comfortable with the use of the word ‘victim’ — it is

immediately disempowering to the person described — we have used it rather than a substitute such as ‘target’, as it is extensively used in the literature and case material we cite.

Physical abuse 10.22 Physical abuse is the actual or attempted use of any physical force with the intent to injure, control, hurt or make the victim afraid of the abusive partner. Examples include: slapping, punching, kicking, shoving, choking; and raising fists, pointing or using a weapon.

Sexual abuse 10.23 Sexual abuse is any coercive or unwanted sexual activity. Sexual violence is not the result of an uncontrollable sex ‘drive’, but an abuse of power. Examples include: rape, often after a beating; forcing the victim to participate in undesired, painful or humiliating sexual acts; constantly accusing the victim of sexual infidelity; and expecting the victim to be sexually available when the abusive partner wants sex as a matter of ‘right’.

Psychological abuse 10.24

Psychological abuse includes emotional/verbal abuse

and threatening and intimidatory behaviours: Emotional/verbal abuse is behaviour intended to destroy the victim’s self-esteem and undermine self-confidence. It often leaves the victim feeling degraded, humiliated, unworthy, guilty and deserving of abuse. Examples include constant ‘put-downs’, and use of offensive and demeaning language, for example, calling the victim ‘lazy’, ‘fat’ and/or ‘ugly’. Threatening and intimidatory behaviours expressed through words and actions are used to instil fear and immobilise the victim into submission. Often the threat of violence is coupled with the destruction of property belonging to the victim, including family pets. This serves as the perpetrator’s warning to the victim that further harm will result if she does not comply with his wishes. [page 672]

Social abuse 10.25 Social abuse is behaviour which aims to isolate the victim from family, friends and other support networks. Examples include: deliberate geographical isolation; preventing her from leaving the home; disconnecting, monitoring or controlling her use of phones;

and making her constantly account for her whereabouts.

Financial abuse 10.26 Financial abuse, now also referred to as ‘economic abuse’, is where the abusive partner controls the victim’s access to money to reinforce his position of power over her. The victim may be refused money for herself and be given insufficient money for rent, food, medicine and other basic necessities of life. The abusive partner often also controls any income earned by the victim.

Reasons for family violence Psychological theories and violence 10.27 Many reasons, none of them satisfactory, are offered to explain why perpetrators of violence behave as they do. Some theories attempt to explain violence within the family in terms of the psychological or personality characteristics of either the men who commit the violence, or the women who are their victims. Men who are violent are said to exhibit some or all of the following characteristics: an inability to control feelings of anger; poor communication skills; inability to express emotions; and

low self-esteem. Violence results from an interplay of individual, relationship, community and societal factors. Some of the factors associated with violence include a history of early aggression, impulsiveness, harsh punitive discipline, poor monitoring and supervision of children, associating with delinquent peers, witnessing violence, drug trafficking, access to firearms, gender and income inequality, and norms that support violence as a way to resolve conflict. To these may be added external factors such as alcohol, drugs, economic difficulties and learned aggressive behaviour which is often referred to as intergenerational violence, suggesting that men are violent as adults because they witnessed or were subjected to violence within their own families as children. For these men, it is suggested that professional treatment such as anger management, counselling and [page 673] communication skills programs may help to resolve childhood experiences and lessen the incidence of aggressive behaviour.22 10.28 Such explanations are unacceptably narrow, and give the impression that those who inflict violence within the home are driven to do so by forces not within their control. This proposition is insupportable when research shows that in the majority of cases, men who assault their partners are quite controlled in the public sphere.23

Women who are victims of abuse 10.29 Even less satisfactory than the ‘psychological’, ‘intergenerational’ or ‘external force’ explanations for the behaviour of violent men, are those theories which suggest that some women have a victim or masochistic mentality which makes them complicit in the acts of violence committed against them. The theory behind this explanation is that such women have experienced violence in childhood and are therefore compelled to seek out abusive partners in adulthood. This victim mentality is sometimes explained as a ‘psychologically addictive co-dependency’ leading to abusive relationships.24 The term ‘co-dependency’ springs from the vast number of studies carried out on families where alcoholism is present. The central theme is that ‘all members of any family in which one member has a drinking problem are psychologically disturbed and in need of treatment’.25 In other words, the ‘co-dependency’ model asserts that there exists a distinct syndrome of maladjustive coping behaviours, and that this can be observed within every family in which a drinking problem exists. While initially the notion of ‘co-dependency’ was peculiar to alcoholism in its application, today the term has been generalised to refer to the partners of anyone with any form of major behavioural problem, for example, excessive gamblers, violent and abusive men, workaholics, and the psychiatrically impaired. This stigmatisation of all family members as having a personality disorder does little to solve the problems of such families and is manifestly unfair to family victims.

At best, this is a weak excuse for violence within the family. Many women, and men, who grow up in violent homes shun violence and become neither perpetrator nor victim. This concept of victim mentality and masochism is used inappropriately as a means of blaming the victim rather than placing the responsibility where it belongs, on the abuser. [page 674] 10.30 The use of the ‘co-dependency’ model in the area of domestic violence is of considerable concern. The notion that all women who have difficulty leaving violent and abusive men have some form of personality disturbance is dangerous because it blames the victim for not being able to prevent, avoid or cope with the violence. Moreover, blaming the victim further undermines her ability to take action against the violence. It has been said that blaming the victim: … reinforces the abused woman’s low self esteem …; can contradict her interpretation of the violent situation and distort her version of what is happening …; can weaken her resolve to act because she feels responsible for and therefore deserving the violence; makes her feel undeserving of other assistance; diminishes the capacity of the service provider to offer assistance which will be of real benefit to the woman; and is untrue.26

10.31 Family violence isolates the victim from assistance, a consequence the perpetrator frequently seeks to maintain. The ‘co-dependency’ model does not provide any meaningful contribution to the understanding of domestic violence.27

Blaming the abused in this way is not borne out by research and evidence, and is heavily criticised by those writers carrying out in-depth studies in the field of violence within the family: see, generally, Gelles and Loseke.28 10.32 The notion of there being a specific personality profile or psychological portrait of the victim, in part, flows from the fact that abused women share common characteristics as a result of fear, violence and abuse. It has been said that: battered women as a group develop psychological problems, for example, anxiety and depressive states in response to the violence; and many of the maladaptive behaviours noted amongst victims of domestic violence have been demonstrated to be the consequence of victimisation, not the cause.29 10.33 This victim mentality is given credibility, doubtful though it might be, by the fact that women stay in these appalling relationships, sometimes year after year. This gives rise to the erroneous assumption that the abused woman has developed a dependency on the aggression directed towards her. The short-sightedness of this conclusion acts as a balm to the conscience of society and adds to the reluctance of victims to disclose the abuse. It is far easier to place the blame on the victim, rather than examining the very concrete reasons behind the decision to stay. In many instances, factors such as geographical isolation, financial dependency, the presence of children or, most commonly, absolute fear of retribution dictate the inability of the women to make healthier choices.30

[page 675]

The feminist perspective 10.34 Looking at violence within the family through a feminist lens is not a simple matter and may give rise to doubts and apprehensions about the make-up of society as a whole and the impact caused by a male hierarchy which reinforces inequality of power. It is disturbing for women who are daughters, mothers, wives and sisters to be forced to come to terms with the negative effects of a male hierarchy which is often less than sympathetic to women. Feminist writers provide us with an altogether more cogent explanation for violence within the family. Rather than looking at individual personality traits, feminist writers look at the wider historical and societal aspects of such violence. In effect, feminist research draws a direct correlation between the lack of power of women in society generally and the more exaggerated imbalance of power in a violent relationship. In other words, failure to recognise the disempowered position of women in society leads to a failure to recognise the misuse of power by perpetrators of violence. 10.35 Such a proposition must inevitably lead to a discussion of institutionalised gender imbalance of power across a very broad spectrum of religious, political and cultural practices throughout history. In discussing male violence, it has been said: Men who assault their wives are actually living up to cultural

prescriptions that are cherished in Western society — aggressiveness, male dominance and female subordination …31

All individuals are influenced by the prevailing cultural beliefs and attitudes of the society in which they live. These beliefs and attitudes have a significant effect on the way they interpret and respond to domestic violence and child abuse. In spite of many changes in community attitudes to the role of women and society in recent years, some old ideas and attitudes remained entrenched. As stated by the New South Wales Child Protection Council: Many men expect to dominate and control women and even relatively poor and powerless men still tend to have more economic and social power than their partners. Also, many people still accept the stereotype of the male as strong, active and dominant, and of the female as weak, passive and submissive. These beliefs about the ‘natural’ dominance or aggression of the male and the ‘natural’ submissiveness of the female are particularly powerful in relation to sexuality. This combination of myths, misconceptions, and fantasy about gender roles sets the scene for a non equal relationship between men and women based on domination and submission.32

10.36 In simpler terms, inequality of power leads to inequity for women in both the public and the private realms. Violence is ultimately about power and its exploitation. Violence, in whatever sphere it is perpetrated, is the outcome of inequality of power. Women and children remain in the majority of those who [page 676]

are the subject of violence within the family. Men remain in the majority of those who commit such violence. Therefore, the majority of violence within the family must be understood to be directly linked to the relationship between gender and power. Despite great strides in equality in recent years, in the main, power remains a masculine sphere. Conversely, evidence suggests that the position of women has not improved significantly in recent years. While there may have been minor improvements in some areas, such as the representation of women in politics and among the judiciary, in less prestigious paid work the position of women appears to have remained static or, in some cases, to have regressed. The reality of our society is that there remains a striking gender bias in favour of males where a share of the power of resources, income, property, technology, home ownership, capacity to earn, superannuation, shares and debentures, corporate ownership and access to credit are concerned. Equally, the reality of society points to the fact that reliance on social security, casual and part-time work, job opportunities narrowed to the clerical and service industries, dependence on public housing and public transport, and responsibility for child care for the most part remain in the feminine sphere.

Consequences of violence within the family 10.37 For many women, living in circumstances of violence within the family is akin to living in a ‘war zone’. The effects are physically and psychologically devastating, and the longer those circumstances continue, the more harmful the effects.

Most obvious of these is the disempowerment of women and the destructive impact of the violence on their personal confidence and self-esteem. Additional to the confusion and shame engendered by violence within the family is the sheer lack of resources to counteract it. The victims of abuse lack not only personal resources; they live in a society where there is a lack of will to deal with the problem, and hence, a lack of available help, both financial and otherwise. 10.38 The consequences of violence within the family are more far-reaching than broken bones and black eyes. Equally, perhaps more, devastating are the psychological effects. These are well documented. Fear, anxiety, depression, anger and hostility, aggression, lowered self-esteem, social isolation and withdrawal may be apparent. This may lead to inappropriate or self-destructive behaviour. These effects may be sufficiently severe in some victims that they reach clinical levels. In particular, some victims have been diagnosed with post-traumatic stress disorder, a set of symptoms that often characterises victims of torture, natural disasters and war. Long-term, or even lifelong effects can also occur. Studies of the chronically mentally ill, alcohol and drug abusers, criminals, and adult perpetrators and victims of family violence regularly reveal high proportions of individuals who have experienced family violence in early years. This has led many professionals to conclude that early experience of family violence inevitably results in long-term damage. [page 677]

10.39 It is well documented, and has been for a long time, that victims of violence within the family exhibit the following characteristics: higher stress levels; higher levels of psychiatric illness; almost five times more likely to attempt suicide; nine times more likely to abuse drugs; experience more sleep disturbances; experience twice as many miscarriages; reduced coping and problem-solving skills; more socially isolated; more likely to use tranquillisers; and more likely to visit medical practitioners on a frequent basis with headaches, vague aches and pains, which are difficult to diagnose and treat successfully.33 10.40 The specific consequences of violence within the family on the health system have been noted by the Australian Medical Association: There are major direct and indirect implications for the provision of health care services for the victims. Research indicates that victims of domestic violence receive more psychiatric treatment and have an increased incidence of attempted suicide and alcohol abuse than the general population. Those who are witnesses to, but not victims of, domestic violence may also experience ongoing adjustment difficulties.34

It is noteworthy that this report dates from 1988.

In 2001 the Attorney-General’s department released a fact sheet, National Research on Young People’s Experiences of Domestic Violence, which indicated that: between 50–70 per cent of children who witness violence at home also suffer physical abuse; and witnessing parental domestic violence is the strongest predictor of perpetration and victimisation of violence in young people’s own intimate relationships. There are a number of education programs targetted at young people aged 12–24 years of age that focus on respectful relationships. The aim of such programs is to assist young people to develop skills to treat their partners with respect. The Federal Government committed funding over five years from 2008–09 to 2012–13 on respectful relationships training across the country. [page 678]

Legislative responses to violence 10.41 There are many sections of the FLA that refer to aspects of family violence and, particularly, to the responsibilities of the Family Court to protect children from its consequences. On 24 November 2011 the Australian Parliament passed the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. As of 7 June 2012, the family violence provisions in the FLA were significantly

strengthened. The amending Act aimed to provide better protection for children and families at risk of violence and abuse. The amending Act was a direct response to a number of reports received by the government into the 2006 family law reforms and how the family law system deals with family violence. The main reports were the Evaluation of the 2006 Family Law Reforms, by the Australian Institute of Family Studies (AIFS); the Family Courts Violence Review, by the Hon Professor Richard Chisholm AM; and Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, by the Family Law Council. The amending Act is known as the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The amending Act came into force on 7 June 2012. The language utilised in the bill and the amending Act appears to reflect the vast amount of literature on family violence. It could be argued that the new family violence provisions provide a very wide scope as the new definition of family violence seems to cover every conceivable form of violence that can be perpetrated against a person or witnessed by another. Have legislatures once again created a good ideology? One must wonder how practical has the application of the new law been. The court must be informed about any family violence order in place. Once the court is informed of the order, will that mean that an order to spend time with the violent family member will not be made? It seems the legislatures have the policies to combat family violence through legislation. One of the difficulties our legal system continues to face is the separation of powers with respect to the states and

territories and Commonwealth governments. For instance, it is state and territory legislation that deals with laws to protect victims of family violence with the state and territory courts having the power to make family violence protection orders. If there are Commonwealth family law orders in place the state court can temporarily suspend those orders, without having any evidence before it of the findings of the Commonwealth courts or the reasons why those family law orders were made in the first place: FLA ss 68R and 68Q. The parties to those proceedings then need to go back to the family courts to deal with the suspension of the family law orders. In essence the parties often have proceedings in two different courts in two different jurisdictions dealing with the same issue. On 9 December 2016 Prime Minister Turnbull announced proposed amendments to the FLA to assist those affected by family violence and make it a criminal offence where a person breaches a personal protection injunction made under the FLA. The press release states: The Australian Government will change the law to make it a crime to breach personal protection injunctions issued by federal family courts.

[page 679] Police will have the authority to immediately charge offenders for a breach, instead of victims of family violence having to bring an application to the court. This new offence sends a clear message that family violence is not a private matter — it is criminal. The changes will also relieve victims from the cost of taking

family law proceedings to enforce an injunction. Offenders who breach personal protection injunctions will now face a penalty of up to two years in prison, or 120 penalty units (a fine of over $20,000), or both. This new offence is contained in an Exposure Draft of legislative amendments to the Family Law Act 1975 the Government is releasing today. Other amendments to better protect those experiencing family violence include: removing the existing 21 day time limit on the effect of interim family violence orders made by State or Territory courts where such a court has varied, revived or suspended an order. The amendment will mean that parties do not need to go back to the family law courts within 21 days, as well as avoiding inconsistencies between family law and family violence orders; and enhancing the capacity of state and territory courts to handle family law matters to reduce delays in resolving matters, as well as simplifying the process and reducing the need for families to navigate across jurisdictions.35

10.42 Readers should refer to Chapter 5 for the specific amendments that have been made to Pt VII of the Act. Section 43(1)(ca) of the Act requires the court to have regard to the need to protect individuals from harm and family violence. This provision acknowledges the close connection between family breakdown and violence, and recognises that the period surrounding and following separation may be particularly dangerous for adults and children. It may be more realistic to acknowledge the ‘danger for women and children’. In its entirety, s 43(1) states: The Family Court shall, in the exercise of its jurisdiction under

this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit in society; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure safety from family violence; and

[page 680] (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

It should be noted that although s 43 contains important principles to be applied in all proceedings before the Family Court, the section does not of itself act as a head of power. Rather, it contains policy guidelines to be borne in mind when the court exercises its jurisdiction under the FLA. Violence within the family is all too prevalent in cases before the courts with family law jurisdiction. In the past, evidence of such violence was often excluded or given little weight in the legal process. It was not until the Family Law Reform Act 1995 (Cth) that family violence was specifically dealt with under Australia’s FLA. Reforms to the FLA focused on the matter of parental contact with children following the

breakdown of marriage, and on resolving inconsistencies between the Commonwealth powers and state legislation. As stated above this was further enhanced by the enactment of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2012. 10.43 Reforming the legislation in this somewhat obscure way, it may be argued, has had the effect of relegating the protection of women to the periphery yet again. Had the legislators wished to address spousal violence directly, this could have been done through the spousal maintenance and matrimonial property provisions, or through the injunctive powers under the FLA. Instead, the legislation in 2006 and, it can still be argued, in 2012 contains something of a ‘consolation prize’ in the form of s 43(1)(ca) of the FLA, which specifically referred to the need to ensure ‘safety’ from family violence. In 2012 we see a word changed from ‘safety’ to ‘protection’: what difference will the change of terminology mean for the many users of the family law system? The Australian Institute of Family Studies report Allegations of Violence in Family Law Children’s Proceedings (2007) states that domestic violence and child abuse are the core business of the court. More than 50 per cent of cases heard by the Family Court and what was then known as the Federal Magistrates Court (now known as the Federal Circuit Court of Australia) contain allegations of family violence. Many of the allegations are severe. Often matters lack evidentiary material to support the allegations of violence which leads to decisions being based on incomplete information.

The report found the following (at pp viii–ix): Three layers of ambiguity are suggested by the data: (a) there is little evidentiary material to support allegations (especially in the general litigants sample); (b) there are fairly high rates of non-response to allegations of spousal violence — except for cases in the FCoA [Family Court of Australia] requiring a judicial determination; and (c) there are generally low levels of detail in the allegations and low levels of detail when responses are made. A scarcity of supporting evidentiary material suggests that legal advice and legal decision making may often be taking place in the context of widespread factual uncertainty.

[page 681] Specifically, most alleging parties, especially fathers, did not provide any material in support of their allegations (although more than half the alleging mothers in the judicially determined cases provided some evidence). However, when fathers in the judicial determination sample did provide information about allegations of spousal violence, it appeared more likely to carry strong probative weight compared with the material provided by mothers in that sample. Cases in the FCoA that required judicial determination were more likely than other cases to contain evidence of spousal violence that appeared to have some strong probative weight. Mothers’ allegations of child abuse by fathers were less likely to be accompanied by evidence than was the case for mothers’ allegations of spousal violence. (Few fathers raised allegations of child abuse.)

Across the courts and samples examined, allegations were most commonly denied or left unanswered. Denials were more likely to occur where the evidence appeared to be of a less probative weight than where the evidence was stronger or non-existent. Allegations of child abuse against fathers were more likely to yield a response — usually a denial — than allegations of spousal violence. When all the pieces of evidence were taken together, most individual allegations of spousal violence across the courts and samples received no corroborative evidence. This was less marked for allegations of spousal violence raised in the judicial determination sample than in the general litigants sample. Nevertheless, at least half the case files contained information about some of the allegations. As might be expected, case files in the FCoA judicial determination sample seemed the most likely of all sub-samples to contain such information and to provide strong support for the allegations raised. Cases that seemed to contain the most severe allegations of spousal violence were especially likely to be accompanied by evidentiary material. Many of these cases required a judicial determination. Mothers were more likely than fathers to provide or elicit relatively strong evidence for their allegations of spousal violence. More than half of the fathers in all groups provided or elicited no supporting evidence for their allegations. Mothers in the general litigants sample were more likely to elicit evidence for their allegations of spousal violence than of child abuse. (There were too few fathers who raised allegations of child abuse to make a similar comparison.)

This report remains relevant today and was referred to in

Maguire and Sheldon [2011] FMCAfam 919. The case provides a good insight into how the court takes into account the evidence produced by the parties in relation to family violence and the weight that is placed on such evidence and allegations. It also provides us with an example where an order was made pursuant to s 68B, restraining the father from questioning the children regarding their mother’s household arrangements, address, occupants of their home or their mother’s employment. The injunction also prohibited the father from attending or going within 100 metres of the mother’s home or work address or causing, allowing, permitting or encouraging any other [page 682] person to do so or provide or make known to any other person any details for same as may become known to him. A state protection order was in place but was coming to an end. The father was permitted to spend time with the children.

Summerby and Cadogen [2011] FamCAFC 205 provides an example of the complexities in family law and how the court attempts to maintain the paramountcy principle that decisions must be made with respect to a child’s best interest. It also demonstrates how the court deals with allegations of abuse. This matter was heard before the Full Court (Thackray, Strickland and Young JJ) on appeal by the father. The original decision was made by Wilson FM whereby the father was to have no further contact with his five-year-old daughter. The

mother opposed the appeal but the Independent Children’s Lawyer was supportive of the position taken by the father. The parties separated when the child was three years old. At the time of separation the father denied the mother entry to their home. The mother took up residence with a male friend and later they commenced a relationship. Interim orders were made by Wilson FM for the child to spend time with the father three weekends per month and a 14-day trial was ordered. The father made allegations that the child had been sexually abused by the mother’s new partner. The allegations were found to have been fabricated by the father who had coached the child to make the allegations. The mother then began withholding the child from the father. Orders for the father to spend time with the child were either not complied with or complied with reluctantly by the mother. The father initiated contravention proceedings but during counselling which was arranged by the father the child ‘disclosed’ that it was her father who had abused her, not her stepfather. A state child welfare authority obtained a child protection order which provided for the child to live with her mother. The child welfare authority declined to intervene in the Federal Magistrates Court matter. When the child welfare authority obtained an order for supervised time between the father and the child, the mother went into hiding. Eventually some short supervised visits were negotiated but these stopped when the child began saying that she did not wish to see her father. Orders were made by Wilson FM that the child live with the mother who was to have sole parental responsibility and no order was made for the father to spend time with the child. In relation to the contravention application, the mother was found to have contravened orders 10 times and ordered to pay some of the father’s costs without any further penalty. The father’s appeal failed. The father argued that Wilson FM failed to have sufficient regard to the benefit to the child of

having a meaningful relationship with both parents. The Full Court said (at [75]): In our view, his Honour’s discussion of the dilemma with which he was faced makes manifest that he had full regard to the importance to the child of having a meaningful relationship with both parents. However, faced with his findings that continuation of a meaningful relationship with the father would result in ongoing emotional abuse of the child; that alternative forms of order would ‘not work’; and that it was not in the child’s best interests to live with the father, his Honour decided to terminate contact. In our [page 683] view not only was that decision open to him, on the basis of his findings it was arguably the only available decision — as his Honour said in … his reasons. The father also argued that there had been a failure to consider s 60CC factors, but the Full Court held (at [87]): There is no appeal against his Honour’s finding that a change of residence would cause the child ‘significant emotional harm’, or against another finding that a change of residence would have ‘devastating consequences’. His Honour had to reach his decision knowing that the option of a change of residence was not open. Unpalatable as it clearly was, his Honour therefore had to take account of the fact that the child’s primary carer would ‘actively try and destroy the relationship’ with the other parent if contact was ordered. Given the ‘emotional abuse’ to which he found the child would be exposed in such circumstances, we consider his Honour was right not to take into account

the conduct of the mother to any greater extent than he did. Another issue on appeal was that Wilson FM had failed to give appropriate weight to the recommendations of the family consultant. The Full Court said (at [118]–[119]): His Honour … referred to those parts of the Family Consultant’s assessment with which he agreed, and the point at which his opinion differed from hers. He noted, when describing his point of departure, that he had ‘had the benefit of all of the evidence in this matter’, an advantage which was clearly denied the Family Consultant. In this regard it is important to recall what the Full Court said in Hall and Hall (1979) FLC ¶90-713 (at 78,819) about recommendations made by court counsellors: [T]he counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

The Federal Magistrate was not obliged to accept the Family Consultant’s recommendations. The Full Court concluded (at [127]): As we have found no merit in any of the grounds, [the a]ppeal … will be dismissed. We think it proper, however, to record that our decision should not be interpreted as condoning the mother’s conduct. We adopt the same view as his Honour expressed: If it is kept uppermost in the consideration of what parenting orders to make, that [the child’s] best interests are the paramount consideration, it is immediately apparent that parenting orders ought not be made to assuage concern about injustice to one parent or the other, nor to redress what may be perceived to be

some unfairness in the outcome. Nor should parenting orders be made as a form of retribution or penalty against one parent for what might be regarded as unacceptable behaviour on that parent’s part, if otherwise the best interests of the child warrant that parent having the primary or sole care for the child.

The authors would argue that at the present time there are significantly more than 50 per cent of cases that come before the Family Court and Federal Circuit Court where family violence is alleged in matters relating to children. Refer to Chapter 5 for a comprehensive discussion of cases relating to children and family violence. [page 684]

Relationship between Family Law Act and state and territory family violence legislation 10.44 The FLA contains provisions dealing with the relationship between orders made under the FLA and ‘family violence orders’ made under other legislation. In the FLA, ‘family violence order’ means an order (including an interim order) made under a prescribed law of a state or territory to protect a person from family violence: s 4(1). Under s 60CG(1), a court is required to consider the risk of family violence and ensure that, ‘to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration’, the order: (a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

Subsection (2) provides that for the purposes of para (1) (b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Injunctions under the FLA Section 68B injunctions 10.45 A victim of violence within the family, seeking protection under the FLA, must look to the injunctive powers of the Family Court. There are two sections in the FLA which give a court the power to issue an injunction. The first is s 68B. This gives a court the power to issue injunctions for the protection of a child and their parent. Section 68B states: (1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including: (a) an injunction for the personal protection of the child; or (b) an injunction for the personal protection of: (i) a parent of the child; or (ii) a person with whom the child is to live under a parenting order; or (iii) a person with whom the child is to spend time under a parenting order; or (iv) a person with whom the child is to communicate

under a parenting order; or (v) a person who has parental responsibility for the child; or (c) an injunction restraining a person from entering or remaining in: (i) a place of residence, employment or education of the child; or (ii) a specified area that contains a place of a kind referred to in subparagraph (i); or

[page 685] (d) an injunction restraining a person from entering or remaining in: (i) a place of residence, employment or education of a person referred to in paragraph (b); or (ii) a specified area that contains a place of a kind referred to in subparagraph (i). (2) A court exercising jurisdiction under this Act (other than in proceedings to which sub-section (1) applies), may grant an injunction in relation to a child, by interlocutory order or otherwise in any case, in which it appears to the court, to be just or convenient to do so. (3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

Section 68B thus contains two heads of injunctive power, both of which concern children. Section 68B(1) empowers a court which has jurisdiction under Pt VII (‘Children’) to grant an injunction in relation to a child as a form of relief in its own right. Section 68B(2) empowers a court exercising

jurisdiction under the FLA generally (and not just under Pt VII) to grant an ancillary injunction in relation to a child. Pursuant to ss 69ZE(1) and 69ZG, the provisions of s 68B cover all children in so far as New South Wales, Victoria, Queensland, South Australia, Tasmania and the territories are concerned. Pursuant to s 69ZE(2), the provisions of this section cover just children of a marriage (as defined in s 60F) in Western Australia. In practice, parties are more likely to apply for a protection order through the state and territory courts. It is relatively difficult to get an ex parte hearing in the Family Court or the Federal Circuit Court, therefore, where an urgent injunctive order is required the state and territory courts appear to be significantly more accessible. An order can be granted at the time of making an application or with the assistance of the police who make the application on behalf of the aggrieved party. The Family Court and Federal Circuit Court are more likely to make injunctive orders where a state or territory order is coming to an end or has ended during proceedings. It should also be noted that state police cannot enforce an injunctive order made by the Family Court or Federal Circuit Court. In respect of protection from family violence the authors would argue that state protection orders are of more assistance to victims of family violence.

In the matter of Baranski and Baranski [2012] FamCAFC 18 the wife was born in 1965, the husband in 1970. The parties commenced cohabitation in 2004, and separated on 13 May 2008 following an incident of family violence. There were twin children born in November 2006. Following separation the children lived with the mother and spent some supervised time

with the father. Family violence was evident throughout the marriage. In May 2008 a domestic violence order was made against the husband. In May 2009 the husband pleaded guilty to a breach of the family violence order and in February 2010 was imprisoned for the breach. He was released in October 2010 on home detention parole until November 2011. [page 686] In 2008 the wife made an application to relocate with the children and for a property adjustment. In the first instance orders were made permitting the wife to relocate from Adelaide to Geelong. At the same time orders were made for the husband to have limited communication with the children via birthday and Christmas cards. The husband appealed and both the wife and the Independent Children’s Lawyer defended the appeal in respect of the children’s orders. The husband also appealed the property orders made in relation to the non-superannuation assets. The wife defended that part of the appeal. The husband appealed on seven grounds and argued that the Federal Magistrate had erred in his judgment by giving disproportionate weight to the wife’s emotional needs. There was only one occasion where both parties were in the court room at the same time. A safety plan had been put in place to ensure the parties had limited contact. On the one occasion where the parties were in the court room together, the husband was handcuffed and in the custody of correctional authorities. The Federal Magistrate noted the following behaviour of the wife (at [47]): There can be no doubting the strength of [the wife’s] emotional reaction to coming upon [the husband] unexpectedly. She was fearful and apprehensive and his appearance caused her to visibly shake. I do not think

that these reactions were either feigned or exaggerated in any way. The Federal Magistrate stated (at [54]): [T]he only rational reason as to why [the wife] was so afraid was because of what [the husband] had done to her in the past. The members of the Full Court (Bryant CJ, Coleman and AinslieWallace JJ) were not satisfied that they had been referred to anything which established that the Federal Magistrate’s observations of the wife, or the wife’s emotional needs (and the weight attached to same), were unsafe. The husband’s fifth ground of appeal was that the Federal Magistrate placed too much weight on the issue of domestic violence and that the Federal Magistrate erred in determining whether the husband posed an ‘unacceptable risk’ by informing himself of specialist research into the impact of domestic violence upon children, but failed to accord procedural fairness to the husband by way of notice and through the failure to give the husband or his counsel the opportunity to make submissions in relation to that research. The Federal Magistrate expressed concern that the husband had not made a serious attempt to modify his behaviour. The Federal Magistrate also observed that the children appeared to still have a close, loving relationship with the father. The Federal Magistrate was faced with the question as to whether the benefit the children would get by having a close, ongoing relationship with their father was outweighed by the long-term damage which may be caused if the children continued to be exposed to the husband’s violent behaviour. The Federal Magistrate was of the view that the protective factors were such that the suspension of time between the children and their father should continue and he stated that

when the children were older they may be able to rebuild their relationship. [page 687] The Full Court accepted the Federal Magistrate’s view that the domestic violence had a significant impact on the children. The husband’s second ground of appeal was in relation to property in that the Federal Magistrate had placed too much weight on the Kennon principles. The husband argued that the Kennon principles (Kennon and Kennon [1997] FamCA 27; (1997) FLC ¶92-757) could not be applied to post-separation violence. Senior counsel for the wife submitted that the consequence of adopting the approach agitated by the husband would mean that the husband could ‘perpetrate gross and severe domestic violence upon the wife post-separation and do so with impunity, whereas the same conduct pre-separation would attract the Kennon-type principles in assessing the weight to be attached to the mother’s contributions’ (at [254]). The Full Court accepted this and this ground of appeal was dismissed. Refer to Kucera and Kucera [2009] FMCAfam 1032 and Palmer and Palmer [2010] FMCAfam 999.

Section 114 injunctions 10.46 This section provides the court with the power to grant an injunction in circumstances other than those covered by s 68B(1), providing the proceedings come within the definition of ‘matrimonial cause’ in s 4(1)(e) of the FLA: … proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital

relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB).

Again, this is an independent injunction, entire of itself, that is, an injunction that is not necessarily associated with any other form of relief under the FLA. Section 114(1) has two limbs. The first is the principal limb, which confers a general power on courts exercising jurisdiction under the FLA to ‘grant an order or injunction as it considers proper with respect to the matter to which the proceedings relate’: Re Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC ¶90-616. The second limb of s 114(1) contains a list of six purposes for which an injunction under the section may be sought as a remedy: (a) an injunction for the personal protection of a party to the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated; (c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; (d) an injunction for the protection of the marital relationship; (e) an injunction in relation to the property of a party to the marriage; or (f) an injunction relating to the use or occupancy of the matrimonial home.

[page 688] Section 114 was amended with the reforms to the FLA that came into operation on 1 March 2009 to include de facto relationships: (2A)In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may: (a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and (b) if it makes an order or grants an injunction under paragraph (a) — make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in: (i) that residence; or (ii) a specified area in which that residence is situated; and (c) make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them. Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way in which those sections apply in relation to an order under section 90SM. Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.

Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

In the following paragraphs we will consider the most commonly sought remedies pursuant to this section.

Injunctions for personal protection: s 114(1)(a) 10.47 Section 114(1)(a) of the FLA allows the court to grant an injunction for the ‘personal protection’ of a party to the marriage. The expression ‘personal protection’ refers to the protection of the physical integrity of a party, such as is secured by non-molestation orders: Marriage of Murkin (1980) 5 Fam LR 782; FLC ¶90-806; Marriage of Harris (1980) 6 Fam LR 450; FLC ¶90-906. 10.48 Section 114(1)(a) may, however, be used to protect a party not only from abuse or threatened physical or mental harm, but also to prevent undue interference by one party with the other party or the children, such as an order to restrain a party from commencing frivolous legal proceedings which may be having an adverse effect on the mental health of the other party and/or the children: Marriage of Wilmoth (1981) 6 Fam LR 807; FLC ¶91-030. [page 689]

In Marriage of Plows (No 2) (1979) 5 Fam LR 590; FLC ¶90-712,

a wide interpretation of the phrase ‘personal protection’ was impliedly approved by the majority of the Full Court of the Family Court through the grant of a non-denigration injunction against both the husband and the wife. Wood SJ stated (at 607): I would require of both parties that neither denigrate the other or the other’s beliefs to the children and that they not permit any person to do so. See also Marriage of J and W (1999) 25 Fam LR 299 at 313.

This wide interpretation was equally evident in Marriage of Wilmoth (1981) 6 Fam LR 807; FLC ¶91-030, where Strauss J said (at 810): It may well be that a sustained course of unreasonable conduct calculated and intending to harass and annoy the other party by continuous vexatious litigation comes within the purview of s 114(1) and that an order [to restrain a husband from instituting proceedings for custody or access] can be made for the personal protection of the wife or the children. In this case, a wife successfully sought an injunction on the ground that continuous harassment by the husband by the use of frivolous legal proceedings and by the continuing threat of such proceedings was having an adverse effect on the mental health of the wife and children.

A similar application would now be dealt with under s 118 of the FLA. This section contains express power to deal with frivolous or vexatious proceedings. In such circumstances, the court may dismiss the proceedings, with costs if justice

demands and, if appropriate, forbid the institution of further proceedings under the FLA by the vexatious or frivolous litigant.

In Marriage of Kemsley (1984) 10 Fam LR 125; FLC ¶91-567, the Full Court said in respect of the personal protection of a wife (at 130): The words ‘personal protection’ do not only refer to her [the wife’s] physical protection, but they’re apt to include such matters as the protection of her right to lead her own life without undue interference from the husband. The Full Court then went on (at 130) to give some instances of an order or injunction for the personal protection of a wife: An order might be for the personal protection of a wife if it prevented the husband from interfering with her employment or business or her social life, or if it were designed to safeguard her mental or emotional wellbeing.

[page 690]

Restraining injunctions in relation to certain property: s 114(1)(b) and (c) or (2A)(b) 10.49 By s 114(1)(b) and (c) or (2A)(b) of the FLA, a court is specifically empowered to grant an injunction to restrain a party to a marriage from entering or remaining in:

1.

the matrimonial home;

2.

the premises in which the other party to the marriage resides;

3.

any specified area in which is situated either the matrimonial home or the premises in which the other party to the marriage resides; and

4.

the place of work of the other party to the marriage. By s 114AA, the court is empowered to attach a power of arrest to injunctions granted under s 114(1)(b) and (c). This power of arrest is limited to circumstances where the police officer reasonably believes that a breach has occurred by conduct which amounts to actual or threatened violence: ss 68C and 114AA. It does not include a mere breach of an order not to harass. Thus, a person who enters property in breach of an order but who does not cause or threaten bodily harm cannot be arrested. If an arrest is made, the police officer who carried out the arrest must inform the person protected by the injunction that an arrest has been made: ss 68C and 114AA(3)(a)(ii). This limiting of the powers of arrest has been criticised and recommendations have been made that the power of arrest be available for any breach as is the case with state or territory protection orders. In any event, the person protected would be well advised to lodge a copy of the Family Court injunction with the local police station and, if necessary, discuss with the police the arrest power which they have. After the arrest, the person against whom the protection order has been granted must be brought before the Family Court within 24 hours (or 48 hours if a Sunday or public

holiday prevents an earlier appearance), or else be released: s 114AA(7). The court must then hear an application for the person to be dealt with for breach of the injunction. The protected person’s lawyer must prepare this application: it is not a police matter. Accordingly, if it is not possible to prepare the application in time, the court must release the person who has broken the injunction.

Injunctions for the exclusive use or occupation of a matrimonial home: s 114(1)(f) 10.50 A common use of s 114(1)(f) and (2A)(a) of the FLA is the making of orders for exclusive possession of the matrimonial or de facto home. It has been said to be a very serious matter to turn a husband or wife out of the matrimonial home: Marriage of O’Dea (1980) 6 Fam LR 675 at 680; FLC ¶90-896. An application for exclusive occupation of a property involves two basic questions, namely: 1.

Should the property be occupied by one party only?

2.

Which party should leave the property or which party should have exclusive occupation of the property? [page 691]

In Marriage of Davis (1976) 1 Fam LR 11,522; FLC ¶90-062, the Full Court said that the matters which should be considered by a court include (at 11,524–5):

(i)

means and needs of the parties. This includes a consideration of the income and financial resources of the parties, the presence and availability of alternative accommodation, and the degree to which the home is an essential part of any business owned or run by a party: Marriage of Gillie (1978) 4 Fam LR 127; FLC ¶90-442.

(ii)

the needs of children. Where there are children of the marriage who need parenting, the predominant consideration has usually been that the party who has the care and control of the children should continue to live in the matrimonial home with them: Marriage of Stone (1976) 2 Fam LR 11,235; FLC ¶90-134; see also Marriage of Gillie (1978) 4 Fam LR 127; FLC ¶90-442.

(iii) hardship to either party or to the children of the marriage. This means that the court should consider the position of both parties and the alternatives which face them if an order for exclusion is, or is not, made: Marriage of Dean (1977) 2 Fam LR 11,691 at 11,695; FLC ¶90-213. The court must balance the hardship to each party of granting or refusing an order and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. Although violence was not alleged in this case, it demonstrates how section 114 can be used or, in this case, how it could not.

In Norton and Locke [2013] FamCAFC 202 the de facto husband’s appeal was allowed when an injunction was granted by a Federal Circuit Judge. On appeal it was held that the court did not have jurisdiction to grant an order pursuant to s 114(2A) on an interim basis as the relief is dependent upon the establishment of a de facto financial cause. The issue of whether the parties were in fact in a de facto relationship was in dispute

and that issue must first be dealt with to determine the court’s jurisdiction. The onus of establishing a case for exclusion rests on the party seeking the exclusion order: Marriage of Davis (1976) 1 Fam LR 11,522; FLC ¶90-062.

Kimberley and Kimberley [2011] FamCA 406 provides a recent example of how the court deals with applications for exclusive occupation pursuant to s 114(1)(f) of the FLA. The matter was heard before Watts J and involved both parties seeking sole occupancy of the matrimonial home. At the time of the application the husband occupied the home and paid the mortgage. Watts J said (at [39]–[43]): Both parties wish to live in the matrimonial home in the interim. Counsel for the mother framed the question I am to resolve as being which proposal is reasonable, sensible or practicable in the circumstances. That oversimplifies the approach I should take. [page 692] An order for exclusive occupation is made pursuant to s 114(1)(f) FLA. In doing so, I may make an order which I consider ‘proper’. Orders giving exclusive use or occupation of a matrimonial home are only made with caution. It is a serious matter to turn a spouse out of their home. The onus is on the mother to establish a case for exclusion of the father. The decision in respect of exclusive occupation is not merely something that is decided on a balance of convenience. The consideration of convenience is only

one element of getting to a decision as to what order might be proper in the circumstances of an individual case. Matters which I need to consider include the means and needs of the parties; the needs of the children; the hardship to either party or to the children; and if relevant, conduct of the parties (see Davis and Davis (1976) FLC ¶90-062). These considerations are not meant to be exhaustive. Part of the considerations in relation to needs is the question as to whether or not the mother in this case [who, with her children, was living with her parents] can be adequately housed elsewhere and whether there are financial resources to allow her to be housed independently. Balance of convenience is a matter that I would need to take into account. As Wood J observed in Dean and Dean (1977) FLC ¶90213, in cases of intense matrimonial disharmony, frequently coupled with assaults by one party to the other, and often occasioning distress to the children, the court needs very little persuasion to take the view that the balance of convenience requires that the mother have sole occupancy of the matrimonial home with the children. As that case showed however, each case needs to be looked at on its own facts. Watts J reviewed those factors at [44]–[60], concluding (at [61]): I do not find it is proper to remove the father from the matrimonial home, although it might be more convenient for the mother for that to happen.

The balance of convenience and its relevance 10.51 An injunction or order for exclusive occupation should not depend merely on the balance of convenience or

hardship: Marriage of Davis (1976) 1 Fam LR 11,522; FLC ¶90-062; Marriage of Dean (1977) 2 Fam LR 11,691; FLC ¶90213; Marriage of O’Dea (1980) 6 Fam LR 675; FLC ¶90-896; Marriage of Rowe (1980) 6 Fam LR 435; FLC ¶90-895. The balance of convenience may, however, properly decide the matter where there is intense disharmony between parties to a marriage or where each would have an equally good case for excluding the other: Marriage of Healey (1979) FLC ¶90-706; Marriage of Dean (1977) 2 Fam LR 11,691; FLC ¶90213. 10.52 One view is that the applicant would need to show that it is impossible for the parties to live in the same house, there being on foot an imperative or inescapable or otherwise intolerable situation: Marriage of Lee (1977) 3 Fam LR 11,609; FLC ¶90-314; Marriage of Dean (1977) 2 Fam LR 11,691; FLC ¶90-213; Marriage of Gillie (1978) 4 Fam LR 127; FLC ¶90-442. Another view is that the court must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to remain in the property together. The test is an objective one and each case must be determined on its own particular facts: Marriage of Rowe (1980) 6 Fam LR 435; FLC ¶90-895; Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC ¶91-319 at 78,170. [page 693] 10.53 The court ought not, however, order that a party be removed from a property unless it is of the opinion that such

a course is necessary rather than merely convenient: Marriage of Lee (1977) 3 Fam LR 11,609; FLC ¶90-314; Marriage of Dean (1977) 2 Fam LR 11,691; FLC ¶90-213; Marriage of Rowe (1980) 6 Fam LR 435; FLC ¶90-895. Conduct of the respondent 10.54 Misconduct by one party towards the other may establish a situation of necessity and also indicate whom the court should require to leave. It is not, however, sufficient to exclude one spouse from the matrimonial home simply to allow the other spouse to live more peacefully in the former’s absence: Marriage of Dean (1977) 2 Fam LR 11,691; FLC ¶90706. Conduct which is only annoying behaviour is insufficient to cause expulsion. Physical assault, however, putting a party in fear of his or her life would be sufficient for expulsion: Marriage of Wolifson (1977) 3 Fam LR 11,627. Since the decision, however, in Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC ¶91-319, such conduct is no longer an essential consideration in the granting of an exclusive occupation order.

In Marriage of Plowman (1970) 16 FLR 447 at 457, Carmichael J said that considerations which the court may consider relevant are: (a) Can the wife be adequately housed elsewhere? (b) Is the money available either from the wife’s own resources and/or the husband’s to provide that housing? (c) For whom, husband or wife, is it less convenient to have to live away from the matrimonial home?

(d) What are the interests of any children of the parties and what would be in their paramount interests? (e) What are the relevant proprietary rights of the spouses? (f)

Would a non-molestation order be an appropriate alternative to an order for expulsion?

(g) Is there possible use of improper methods, either by way of intimidation or fraudulent condonation, to prevent the wife from pursuing her rights if the spouses continue to reside in the one home? (h) Is it unjust to force a husband to establish for himself another home, or otherwise accept inferior accommodation without just cause?

In Marriage of Fedele (1986) 10 Fam LR 1069; FLC ¶91-744, the Full Court held that the many decisions of the court with regard to exclusive occupation of the home laid down useful guidelines, but guidelines only. The Full Court further stated that no case should be seen as laying down a fixed list of criteria which must be established for an application for exclusive occupation to be successful.

[page 694] Conduct of the applicant 10.55 It has been considered that the conduct of the applicant is a relevant consideration and that the cause of the problem leading a spouse to seek exclusive use and occupation of the home should not be of the applicant’s own

making: Marriage of Gillie (1978) 4 Fam LR 127; FLC ¶90442.

In Marriage of Rowe (1980) 6 Fam LR 435 at 444, Paulie J stated that: … if a party, by acting unreasonably brings upon himself or herself a degree of hardship, it would not be proper within the meaning of s 114(1) for a court to order the spouse of that person to vacate the home. It would be improper that a person may arbitrarily put an end to the marriage relationship without any sufficient fault or misconduct on the part of his or her spouse and then be put into exclusive possession of the home on the balance of convenience or even to alleviate a degree of hardship likely to be suffered by that person or even a child.

In Marriage of Davis (1982) 8 Fam LR 975 at 977; (1983) FLC ¶91-319, the Full Court said: … in applications for exclusive occupancy of a home, it’s no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of a home with the other party, or that there has been some conduct by the other party which justifies his or her expulsion from the home. No distinction in law should be drawn between the situation where a spouse left the home and is seeking to return and the situation where both parties at the time of the hearing of the application resided in the home with one seeking to exclude the other.

Evidentiary burden 10.56 There are several aspects of difficulty in relation to proving that one has been the victim of family violence. The first is related to the evidence needed to support the onerous, debilitating nature of the violence and the second is having such evidence accepted by the judge at first instance. The ‘no-fault’ system of the FLA seeks to have matters between the parties settled without recourse to allegation and counterallegation. Producing convincing evidence is also hampered by the often secretive nature of family violence. Nor is it likely that a victim will have contemporaneous notes of dates and times of abuse. The matter following starkly illustrates the importance of presenting the court with pleadings of a very precise nature. This is particularly so when accusatory claims are made in a no-fault system of family law.

In Britt and Britt [2017] FamCAFC 27 before May, Aldridge and Cronin JJ the matter before the Full Court concerned an appeal by the wife in which it was contended that Terry J in Britt and Britt [2015] FCCA 685 had rejected an important portion of her evidence with regard to domestic violence during the relationship with the husband. The parties had a 31-year relationship/marriage, beginning living together in 1988 [page 695]

when the wife was about 15 and the husband 31. They separated in November 2011. They have four adult children. The wife, however, gave evidence of having sexual relations with the husband from the age of 11 and discussed his dominant personality. She said (at [26]): [The respondent] dominated me throughout our relationship. He has been violent and aggressive towards me prior to the time I commenced cohabitation with him. He regularly forced me to have vaginal and anal sex with him without my consent, often causing me considerable pain and discomfort, throughout our relationship. Our first sexual interactions were without my consent. He routinely punched and beat me and was verbally rude and aggressive throughout our relationship. He also routinely denigrated me in public, called me a ‘slut’ and ‘scum’, and regularly told people, including our children, that I was having affairs with other people. He regularly drank heavily. He would drink until he was extremely intoxicated. He was always violent, aggressive and abusive after drinking, particularly towards me. On numerous occasions during the marriage he said: ‘Why don’t you pack your shit and fuck off’. … He repeatedly made me re-iron clothes. If he took a freshly ironed pair of trousers from a coathanger and there was a slight mark where they had been hanging over the hanger he would throw the trousers at me and say: ‘Have a fucking look at me. I look like a fucking ragman. I’m not going out looking like a fucking ragman. Go and iron the fucking thing again and do it properly this time and don’t let it happen again. Can’t you do anything properly.’ As with many similar cases there was an emphasis on the credit of each party, but the wife was in the position of needing to

establish the detriment caused to her by the egregious behaviour of the husband. She appeared not to impress the trial judge as a witness of truth. Her Honour stated ([2015] FCCA 685 at [26]): The wife was not a witness of credit and this will have relevance when I come to make findings about issues in dispute. However it is important to note that I cannot use the wife’s conspicuous lack of credit to paper over cracks in the husband’s case and make findings adverse to the wife when there is insufficient evidence to support them. In determining, however, that the trial judge had erred in excluding portions of the evidence of the wife and ordering that the matter be sent to the Federal Circuit Court for rehearing the Full Court stated (at [54]–[55]): Evidence is commonly given in general terms and when taken in conjunction with other evidence it can be tolerably clear what is meant. One would not expect any person who had been in a long relationship to remember the exact nature and frequency of recurring events throughout that relationship, let alone specific dates. Ultimately, the court will need to deal with that evidence, in the light of all of the material before it, in order to determine whether particular conclusions or inferences can be drawn. At that stage, the weight to be given to the evidence is critical. However, that occurs at the end of the hearing. It does not occur early in the hearing and not when dealing with objections to evidence. In answer to the question as to whether the disregarded evidence by Terry J could establish that the contributions of the wife were made more onerous by the conduct of the husband, the Full Court stated (at [74]): The respondent submitted that the appellant’s evidence

was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.

[page 696] The matter which follows is interesting in two ways. One is the use of evidence used as a shield in a matter outside the Family Court and the second is the manner in which the court discussed s 121 of the FLA.

In Miller and Murphy [2016] FCCA 974 Brown J granted the husband’s application to use in domestic violence proceedings the report of a family consultant that contained a child’s account of an altercation between the parties that was inconsistent with that of the wife in those proceedings. The report of the child favoured the husband. The court considered s 121(1) of the FLA which prohibits the dissemination to the public or a section of the public by any means any account of proceedings arising under the Act which identify a party to the proceedings or a person who is related to, or associated with, a party to the proceedings, saying that the question arising is whether if the report is released it would represent ‘dissemination to the public’. The court cited Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434 in which Morling J considered that the reference to the public in s 121(1) should be read widely and refer to ‘widespread

communication with the aim of reaching a wide audience’. The court concluded that if in the case at hand the report were released it would be read ‘potentially [by] defence counsel for Mr Miller, the police prosecutor and the presiding magistrate’ which ‘cannot be considered to be a wide audience’ (at [43]–[45]).

For many victims of sexual abuse and violence, coping with thoughts of cross-examination is truly frightening. This is especially so if the cross-examiner (almost invariably the perpetrator) lacks legal training. The following comment by Jennifer Maley appeared in The Sydney Morning Herald (12 May 2017): Buried in an obscure nook of the budget was a humane and overdue measure, a good news story so pure it’s puzzling the government didn’t promote it beyond a passing mention in Treasurer Scott Morrison’s budget speech. It’s simple and sensible, and it should have been enacted long ago: domestic violence victims will no longer risk being crossexamined by their abusers in family law proceedings. This has long been a nasty courtroom quirk in family law, where the cases, by definition of having reached court, are often violent and always toxic. So far, despite numerous political tamperings with the [FLA], there has been nothing to stop a female party to proceedings being forced to submit to the hostile questioning of the man who has abused her — and despite the best hopes of the Men’s Rights Movement … it is almost always men who are the perpetrators of family violence. Other measures were announced as part of this package, but they received almost no coverage — even though they raised

some eyebrows among family lawyers, women’s advocates and even members of the Family Court. These measures include yet another review of the Family Court system (a parliamentary inquiry is already underway) and the establishment of quasi-judicial

[page 697] bodies called Parenting Management Hearings, which worry many working with domestic violence victims, because the parties are not allowed lawyers.36

Preservation of state and territory law on marital violence 10.57 By virtue of s 114AB(1) of the FLA, a person wishing to restrain family violence can proceed not only under s 114 of the FLA, but also under any relevant state or territorial law that has been prescribed. Sections 68B, 114 and 114AB(1) are not intended to exclude or limit the operation of a prescribed state or territory law that is capable of operating concurrently with these sections. A person who has taken action under a prescribed law of a state or territory cannot, however, subsequently institute proceedings in respect of the same matter under s 68B or s 114 of the FLA. By s 114AB(2), if a person has instituted proceedings or taken any other action under a prescribed law of a state or territory in respect of a matter for which that person could institute proceedings under s 114, he or she is not entitled to institute proceedings under that section in respect of the same matter unless the

proceedings under the prescribed law have lapsed, been discontinued or dismissed, or unless any orders made under such law have been set aside or are no longer enforced. 10.58 Where parties to family law proceedings obtain injunctive orders as described above and there is a breach of those orders they must apply to the family courts to enforce those orders. Unfortunately, the federal police cannot act to enforce the orders without an enforcement order being made by the court and the state and territory police forces do not have the power to enforce Commonwealth orders. A person seeking the protection of the courts by way of prohibiting a person from harming them, their children or their property are better off obtaining an order for protection under state and territory jurisdiction. That way, where there is a breach they can call upon the state and territory police for assistance and where the police find evidence of the breach they can prosecute the perpetrator under the criminal law. As noted above, there are proposals to change this so that where parties obtain personal protective injunctions under the FLA and they are breached they will be considered criminal offences. At the time of writing this edition no bill was yet before the Commonwealth Parliament. 10.59 All states and territories have enacted legislation to make it possible for victims of family violence to obtain an order offering protection against violence and harassment. The terminology varies from jurisdiction to jurisdiction. The expression ‘protection order’ is often used as a generic term. In some jurisdictions, protection orders are called by a different name, for example, in New South Wales such an order is referred to as an ‘apprehended violence order’, in

Victoria the term is an ‘intervention order’, and in South Australia a ‘restraining order’. Whatever the terminology used, all orders for the protection of a victim against violence and harassment impose a range of restrictions and prohibitions on the person against whom the order is sought. [page 698] The essential features of a protection order are that it is obtainable in the Magistrates Court or District Courts quickly, with the required proof on the balance of probabilities rather than beyond reasonable doubt; it can be designed to meet not just violent conduct, but harassing and pestering conduct which may not in itself be criminal; it is possible to obtain an ex parte interim order which is effective once it is served on the respondent; and breach of an order is a criminal offence for which the police may arrest without warrant. The Council of Australian Governments at its April 2015 meeting agreed that by the end of that year: a national family violence order scheme will be agreed whereby family violence orders will be automatically recognised and enforceable in any state or territory of Australia; progress will be reported on a national information system that will enable courts and police in different states and territories to share information on active family violence orders, with New South Wales, Queensland and Tasmania to trial the system. Since 2016 the states and territories have commenced

amending their family violence legislation to incorporate national recognition of family violence orders as proposed by COAG. This means if an order is made in South Australia it will be recognised and enforceable in another participating jurisdiction such as Western Australia.37 The following legislation contains provisions which aim to offer protection to victims of violence within the family. A brief summary of sections the authors consider are important that provide an understanding of the limits of the legislation are provided. Readers are encouraged to view their particular state or territory law in its entirety. Australian Capital Territory (ACT) 10.60 In the ACT orders are known as family violence orders. The Domestic Violence and Protection Orders Act 2008 was repealed with the introduction of the Family Violence Act 2016 (ACT) which came into effect on 1 May 2017. The objects of the Act are set out in s 6: (a) to prevent and reduce family violence; and (b) to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and (c) to encourage perpetrators of family violence to be accountable for their conduct.

Section 7 provides the court with the power to make family violence orders, create offences to enforce orders, ensure quick access to the legal system and recognise orders made in other Australian jurisdictions and New Zealand. [page 699]

Section 8 provides a comprehensive definition of family violence and includes examples. Sections 9, 10 and 11 give definitions of people who can seek protection under the Act, also providing examples for the types of relationships between applicants and respondents. Part 3 deals with family violence orders, and what needs to be considered when making an order. In particular, s 14(1) states: (1) In deciding whether to make a family violence order, a court must consider the following: (a) the objects of this Act in section 6; (b) the affected person’s perception of the nature and seriousness of the respondent’s alleged conduct; (c) the welfare of any child that is an affected person; (d) the accommodation needs of the affected person and any child of the affected person or respondent; (e) any hardship that may be caused to the respondent or anyone else by the making of the order; (f) any previous family violence or personal violence by the respondent in relation to the affected person or anyone else; (g) any previous family violence order made in relation to the respondent; (h) any previous contravention of a family violence order by the respondent; (i) if the respondent objected to the making of an interim order — the respondent’s objection; (j) the need to ensure that property is protected from damage. Section 15 requires the court to take into consideration any family law orders.

Section 16 details who can apply for protection orders.

Various types of orders can be applied for under Div 3.3 for interim orders (Div 3.3.2 for general interim orders; Div 3.3.3 for special interim orders); Div 3.4 for consent orders; Div 3.5 for final orders. The duration of the orders is stipulated in s 35. Amendments to protection orders can be made pursuant to Pt 5. Orders can be reviewed under Pt 6. Part 9 deals with the recognition of national family violence orders. New South Wales 10.61 In New South Wales, the orders are known as apprehended domestic violence order or apprehended personal violence order and can be made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This Act came into force on 10 March 2008 and replaced Pt 15A of the Crimes Act 1900 (NSW). The Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016 (NSW) when it commences will be incorporated within the [page 700] 2007 Act. This will enable the recognition and enforcement of orders made in other states and territories. Section 9(1) states that the objects of the Act in relation to domestic violence are: (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic

violence; and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons; and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women; and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child.

Section 9(2) states that the Act aims to achieve those objects by: (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking; and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice.

Section 9(3) and (4) state: (3) In enacting this Act, Parliament recognises: (a) that domestic violence, in unacceptable behaviour, and

all

its

forms,

is

(b) that domestic violence is predominantly perpetrated by men against women and children, and (c) that domestic violence occurs in all sectors of the community, and (d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and (e) that domestic violence occurs in traditional and nontraditional settings, and

(f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and (g) that domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court. (4) A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section.

Section 13 provides for the offence of stalking/intimidation while s 14 deals with contraventions.

[page 701] Section 21 permits referrals to mediation but by subss (2) and (2A) the court must give consideration as to when mediation would not be appropriate as follows: (2) Without limiting subsection (1), in determining whether there is good reason not to refer a matter to mediation, the court is to consider whether: (a) there has been a history of physical violence to the protected person by the defendant, or (b) the protected person has been subjected to conduct by the defendant amounting to a personal violence offence, or (c) the protected person has been subjected to conduct by the defendant amounting to an offence under section 13, or (d) the defendant has engaged in conduct amounting to harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability, or (e) there has been a previous attempt at mediation in relation to the same matter and the attempt was not successful. (2A)The existence of any one or more of the factors referred to in subsection (2) does not prevent a court from referring a matter to mediation.

Part 6 provides for interim orders while Pt 7 gives the police the power to apply for provisional orders. In fact,

under s 27 the police are obliged to apply for a provisional order under the following circumstances: (1) An application must be made for a provisional order if: (a) a police officer investigating the incident concerned suspects or believes that: (i) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (ii) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (iii) proceedings have been commenced against a person for an offence referred to in subparagraph (i) or (ii) committed against the person for whose protection an order would be made, and (b) the police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial damage to any property of that person.

Where a police officer does not believe there is a good reason to apply for a provisional order they must record the reason for not doing so (s 27(5)): However, if the police officer investigating the incident believes that there is good reason not to make the application, the police officer must make a written record of the reason.

[page 702] Part 8 deals with the content and effect of apprehended violence orders and gives the court the power to impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence: s 35(1). Part 9 provides for additional measures to support and protect children and others in proceedings. Where a person has been charged and found guilty (by way of pleading guilty or a finding of guilt) of a serious offence the court must make a final apprehended violence order even if there was no application or interim order in place: s 39(1). Apprehended violence orders can also be made where there are proceedings in child protection matters: s 40A. Children who have witnessed family violence and are required for questioning are now protected from being crossexamined by respondents where matters are contested: s 41A. Pursuant to s 42 the court must also give consideration to contact with the child. Part 10 provides for final apprehended violence orders and interim court orders and associated proceedings. Northern Territory (NT) 10.62 In the Northern Territory orders are referred to as domestic violence orders (DVOs). The relevant legislation is

the Domestic and Family Violence Act 2007 (NT). Section 3(1) outlines the objects as: (a) to ensure the safety and protection of all persons, including children, who experience or are exposed to domestic violence; and (b) to ensure people who commit domestic violence accept responsibility for their conduct; and (c) to reduce and prevent domestic violence.

Section 3(2) provides that the objects are to be achieved by providing for: (a) the making of domestic violence orders to protect people from domestic violence and to encourage the people committing it to change their behaviour; (b) the registration of orders made in other jurisdictions; and (c) the enforcement of those orders.

DVOs protect persons in a domestic relationship. Section 9 states that there is a ‘domestic relationship’ between two persons if: one is or has been in a ‘family relationship’ with the other, that is, a spouse or de facto partner, or is otherwise a relative, including a person who is a relative according to Aboriginal tradition or contemporary social practice: s 10; one has or has had custody, guardianship, or a right of access to the other; one ordinarily or regularly lives, or has lived, with the other person or with someone else who is in a family relationship with the other person; one is or has been in a family relationship with a child of

the other person; [page 703] one is or has been in an ‘intimate personal relationship’ with the other person (whether they are of the same or the opposite sex (s 11), that is, if: –

they are engaged to be married to each other, including a betrothal under cultural or religious tradition; or

–

the persons date each other (whether or not there is a sexual relationship), taking account of circumstances of the relationship such as the level of trust and commitment, the duration of the relationship, the frequency of contact between them, and the level of intimacy between them; or

one is or has been in a ‘carer’s relationship’ with the other (that is, one of them is dependent on the ongoing paid or unpaid care of the other): s 12. Section 28 states local court DVOs can be applied for by: an adult in a domestic relationship with the defendant; with the leave of the court, a young person (between 15 and 18 years) in a domestic relationship with the defendant; an adult acting for a person (including a child) who is in a domestic relationship with the defendant; or a police officer.

Section 29 states a police officer or child protection officer must apply for a local court DVO for the protection of a child if the officer reasonably believes that domestic violence has been, is being, or is likely to be committed, and that it has adversely affected the child’s wellbeing, or is likely to do so. Section 5 defines ‘domestic violence’ as the commission (or attempt or threat of) any of the following conduct, against someone with whom the person is in a domestic relationship: causing physical harm or harm to a person’s mental health, whether temporary or permanent (for example, sexual or other assault); damaging property, including causing the injury or death of an animal; intimidation, that is, harassment (for example, including regular and unwanted contacting, or giving or sending offensive material to the person, any conduct that causes a reasonable apprehension of violence or damage to the victim’s property, and any conduct that has the effect of unreasonably controlling the person or causes the person mental harm): s 6; stalking, which includes following the person, or approaching, watching or loitering near a place where the person lives, works or regularly goes for a social or leisure activity, if such conduct is engaged in on at least two separate occasions with the intention of causing harm to the person or causing the person to fear such harm to himself or herself: s 7; and economic abuse, which includes coercing a person to relinquish control over assets or income, unreasonably

disposing of the person’s property (including jointly-owned property) without consent, unreasonably preventing the person [page 704] from taking part in decisions over household expenditure or the disposition of joint property, and withholding money reasonably necessary for the maintenance of the person or his or her child: s 8. DVOs can also be made to protect a child if the issuing authority is satisfied that there are reasonable grounds to fear that the child will be ‘exposed’ to domestic violence committed by or against a person with whom the child is in a domestic relationship: s 18(2). Being ‘exposed’ to domestic violence includes not only seeing or hearing the violence, but also witnessing harm resulting from the violence: s 4. The suspension and cancellation of firearms licences, permits or certificates of registration are dealt with pursuant to ss 39 and 40 of the Firearms Act (NT). Section 27 states the duration of an order will be stipulated on the actual order. Interim and final orders can be revoked or amended: ss 3(3), 48, 51, 65 and 66. The maximum penalty for the breach of an order is 400 penalty units (currently $61,600) or two years’ imprisonment: ss 121(1) and 122(2). The Act provides for two categories of DVOs — first, from a Court of Summary Jurisdiction (CSJ) and second, from an

authorised police officer. The various orders within the power of the CSJ and the police are made under the following provisions. Obtainable are: a local DVO made by the relevant CSJ: s 28; an interim DVO that may be ordered at any time during the hearing of an application for a CSJ DVO: s 35(1); a DVO by consent of the parties made by the CSJ or an authorised clerk of court s 38; in urgent circumstances in which it is necessary to ensure the immediate safety of a person and it is impracticable to obtain a CSJ, a DVO made by an authorised police officer: s 41; a DVO made by a court in criminal proceedings: s 45; or a DVO (including a police DVO) that has been confirmed by the local court: s 82. Orders can be made by the local court or a clerk of the local court. In addition, a court before which a person pleads guilty to, or is found guilty of, an offence involving domestic violence may also make a DVO against that person: s 45(1). Police may also make orders which may be confirmed or varied by a magistrate. Orders made in other jurisdictions can be registered in the Northern Territory pursuant to the procedures set out in Pt 3.2. The Act also provides for unregistered external orders to have effect for a limited time. If a police officer reasonably believes that a person in the Northern Territory is a defendant named in a current unregistered external

protection order, the police officer must make a declaration. While the declaration is in force (for up to 72 hours), the external order has the effect of a court DVO. [page 705] Sections 107–109 provide that the evidence of children can be either recorded or written and that children are to be protected from cross-examination. Section 114 goes some way to protect applicants from being cross-examined by self-represented respondents. Queensland 10.63 Orders in Queensland, known as domestic violence orders, are made pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) which commenced on 17 September 2012. This Act replaced the Domestic and Family Violence Protection Act 1989 (Qld). The preamble to the Act makes a clear statement that domestic and family violence is a violation of human rights and is not acceptable in Queensland communities: 1

Australia is a party to the following instruments — Universal Declaration of Human Rights United Nations Declaration on the Elimination of Violence Against Women United Nations Convention on the Rights of the Child United Nations Principles for Older Persons

2

Living free from violence is a human right and

fundamental social value. 3

Domestic violence is a violation of human rights that is not acceptable in any community or culture and traditional or cultural practices cannot be relied upon to minimise or excuse domestic violence.

4

Domestic violence is often an overt or subtle expression of a power imbalance, resulting in one person living in fear of another, and usually involves an ongoing pattern of abuse over a period of time.

5

Domestic violence can have serious impacts on people who experience it, including physical, emotional and psychological harm, and can result in death.

6

Perpetrators of domestic violence are solely responsible for their use of violence and its impacts on other people.

7

Domestic violence is most often perpetrated by men against women with whom they are in an intimate partner relationship and their children; however, anyone can be a victim or perpetrator of domestic violence.

8

Domestic violence is a leading cause of homelessness for women and children.

9

Children who are exposed to domestic violence can experience serious physical, psychological and emotional harm.

10 Behaviour that constitutes domestic violence can also constitute a criminal offence.

Domestic and family violence is defined in s 8 and includes the following behaviour: physical or sexual abuse (eg unwanted sexual contact, hitting or pushing); emotional or psychological abuse (eg belittling, making

comments to make a person feel bad about themselves); [page 706] economic abuse (eg limiting a person’s access to money or unreasonably making them account for every cent); threatening behaviour (eg forcing a person to behave in a certain way by threatening to hurt a child or pet or someone else); coercive behaviour (eg behaviours such as stalking, threats, or other intimidation to force a person to change their mind about something, or to act in a certain way); or behaviour that in any way controls or dominates or causes a person to fear for their personal safety or wellbeing. The protections under the Act are available to people in a broad range of relationships and are described in ss 13–20 and include: intimate personal relationships; family relationships; and informal care relationships. A court needs to be satisfied that an order is necessary and desirable to protect an aggrieved person from domestic violence. Under this legislation the court no longer needs to be satisfied that the violence is likely to occur again. The court has the power to make interim and final protection orders. This Act also includes specific considerations for including

children in orders such as whether naming the child is necessary or desirable to protect the child from being exposed to domestic violence: ss 53–55. The Act aims to hold respondents accountable for their behaviour and to offer them the opportunity to change their behaviour. The court may make a voluntary intervention order which requires the respondent to attend an approved intervention program and/or counselling. The respondent is asked by the court to agree to the order and to comply with it, and the consequences of not complying must be explained to the respondent. If the order is breached the provider of services reports this to the court and the police: Div 6. The Act enables police to take a more proactive duty to respond and investigate allegations of domestic violence. In addition to the requirement that police officers investigate criminal offences, they are also now required to make a written record of their reasons for not taking any action after investigation. The police have been given the power to issue short-term police protection notices and to remove the respondent from the home for a 24-hour period, known as the ‘cool down’ condition. The police have also been given the power to detain where there is a high risk of injury to a person or property damage. The police have the power to require a person to remain at a location for the time reasonably necessary for the police officer to serve the respondent or advise them of the conditions: Pt 4. Part 7 provides for increased penalties for breach offences.

Interstate orders can be registered in Queensland: Pt 6. A national recognition bill has been passed but at the time of writing this edition is yet to be proclaimed: [page 707] Domestic and Family Violence Protection Legislation Amendment Act 2016 (Qld).

and

Other

South Australia 10.64 The Domestic Violence Act 1994 (SA) was significantly less detailed than the Acts of other states and territories. The inadequacies of the Act led to a positive change with it being repealed by Sch 1 cl 36 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) on 9 December 2011. This Act has now become one of the most comprehensive Acts and reform laws for the restraint of domestic and personal violence. The Act brings together laws restraining domestic violence and laws restraining other forms of personal violence. The aim is to make these laws easier to understand and enforce and to emphasise that society does not tolerate personal violence of any kind, whether it occurs within a domestic relationship or not. The following comment was taken from Hansard, 10 September 2009, p 3937: Nevertheless, there is strong emphasis on domestic abuse, and there is no doubt that these laws will mostly be used by people seeking to protect themselves and their children from domestic abuse. For that reason, the Act acknowledges, in its definition of abuse, not only the obvious physical forms of

violence but also the brutal and controlling behaviour that is typical of violence that takes place under cover of a private, familial relationship and can be concealed from the world at large, trapping the victim in a nightmare world from which there is little hope of escape. It also extends the kind of relationship that will be considered ‘domestic’ and continues to require the courts to give priority to proceedings for the restraint of domestic abuse.

The Act provides for intervention orders and associated problem gambling and tenancy orders in cases of domestic and non-domestic abuse. The objectives of the Act can be found at s 5: The objects of this Act are — (a) to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse, by providing for — (i) the issuing of intervention orders by police and the Court; and (ii) the issuing of associated orders relating to problem gambling and tenancy agreements; and (iii) the registration of foreign intervention orders; and (iv) the enforcement of South Australian and foreign intervention orders; and (b) to provide special police powers of arrest, detention and search in connection with issuing, serving and enforcing intervention orders; and (c) to further protect persons suffering or witnessing domestic or non-domestic abuse by — (i) providing for special arrangements for witnesses in proceedings under this Act; and

(ii) imposing limitations on publishing reports about proceedings or orders under this Act.

[page 708] Section 8 provides a comprehensive meaning of abuse — domestic and non-domestic. It would have to be said that the definition far outweighs the definitions found in other comparable legislation: (1) Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse. (2) An act is an act of abuse against a person if it results in or is intended to result in — (a) physical injury; or (b) emotional or psychological harm; or (c) an unreasonable and non-consensual denial of financial, social or personal autonomy; or (d) damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. (3) Emotional or psychological harm includes — (a) mental illness; and (b) nervous shock; and (c) distress, anxiety, or fear, that is more than trivial. (4) Emotional or psychological harm — examples Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:

(a) sexually assaulting the person or engaging in behaviour designed to coerce the person to engage in sexual activity; (b) unlawfully depriving the person of his or her liberty; (c) driving a vehicle in a reckless or dangerous manner while the person is a passenger in the vehicle; (d) causing the death of, or injury to, an animal; (e) following the person; (f) loitering outside the place of residence of the person or some other place frequented by the person; (g) entering or interfering possession of the person;

with

property

in

the

(h) giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person; (i) publishing or transmitting offensive material means of the Internet or some other form electronic communication in such a way that offensive material will be found by, or brought to attention of, the person;

by of the the

(j) communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some

[page 709] other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person;

(k) keeping the person under surveillance; (l) directing racial or other derogatory taunts at the person; (m) threatening to withhold the person’s medication or prevent the person accessing necessary medical equipment or treatment; (n) threatening to institutionalise the person; (o) threatening to withdraw care on which the person is dependent; (p) otherwise threatening to cause the person physical injury, emotional or psychological harm or an unreasonable and non-consensual denial of financial, social or domestic autonomy or to cause damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. (5) Unreasonable and non-consensual denial of financial, social or personal autonomy — examples Without limiting subsection (2)(c), an act of abuse against a person resulting in an unreasonable and non-consensual denial of financial, social or personal autonomy may be comprised of any of the following: (a) denying the person the financial autonomy that the person would have had but for the act of abuse; (b) withholding the financial support necessary for meeting the reasonable living expenses of the person (or any other person living with, or dependent on, the person) in circumstances in which the person is dependent on the financial support to meet those living expenses; (c) without lawful excuse, preventing the person from having access to joint financial assets for the

purposes of meeting normal household expenses; (d) preventing the person from seeking or keeping employment; (e) causing the person through coercion or deception to — (i) relinquish control over assets or income; or (ii) claim social security payments; or (iii) sign a power of attorney enabling the person’s finances to be managed by another person; or (iv) sign a contract for the purchase of goods or services; or (v) sign a contract for the provision of finance; or (vi) sign a contract of guarantee; or (vii) sign any legal document for the establishment or operation of a business; (f) without permission, removing or keeping property that is in the ownership or possession of the person or used or otherwise enjoyed by the person;

[page 710] (g) disposing of property owned by the person, or owned jointly with the person, against the person’s wishes and without lawful excuse; (h) preventing the person from making or keeping connections with the person’s family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices, or from expressing the person’s cultural identity;

(i) exercising an unreasonable level of control and domination over the daily life of the person. (6) If a defendant commits an act of abuse against a person, or threatens to do so, in order to cause emotional or psychological harm to another person or to deny another person financial, social or personal autonomy, the defendant commits an act of abuse against that other person. (7) A defendant may commit an act of abuse by causing or allowing another person to commit the act or to take part in the commission of the act. (8) If the act of abuse is committed by a defendant against a person with whom the defendant is or was formerly in a relationship, it is referred to in this Act as an act of domestic abuse; and for that purpose, 2 persons are in a relationship if — (a) they are married to each other; or (b) they are domestic partners; or (c) they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of 1 affects the other; or (d) 1 is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or (e) 1 is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other under paragraph (a), (b) or (c) (regardless of age); or (f) 1 is a child and the other is a person who acts in loco parentis in relation to the child; or (g) 1 is a child who normally or regularly resides or stays with the other; or

(h) they are brothers or sisters or brother and sister; or (i) they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or (j) they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group; or (k) 1 is the carer (within the meaning of the Carers Recognition Act 2005) of the other. (9) An act of abuse may be committed by a defendant against a person with whom the defendant is not, and was not formerly, in a relationship (including in circumstances where the defendant imagines such a relationship) and such an act of abuse is referred to in this Act as an act of non-domestic abuse.

[page 711] The Intervention Orders (Prevention of Abuse) (Recognition of National Domestic Violence Orders) Amendment Bill 2017 (SA) has been assented but proclamation has not occurred at the time of writing this edition. Tasmania 10.65 The primary purpose of the Family Violence Act 2004 (Tas) is ‘to provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence’. Section 3 of the Act provides that ‘[i]n the administration of this Act, the safety,

psychological wellbeing and interests of people affected by family violence are the paramount considerations’. A court may make, on application, a family violence order (FVO) for the protection of an ‘affected person’ (or another person named in the order) in relation to the past and prospective commission of ‘family violence’: ss 15 and 16(1) and (2). A ‘court of summary jurisdiction’ may make an FVO upon the making of an application: ss 5, 16(1) and 31(1). An application for an FVO also enlivens the court’s jurisdiction to make an interim FVO: s 23(1). Proceedings for an FVO can be transferred to the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children’s Division), if the court in which the proceedings are commenced determines that this is appropriate: s 31(8) and (9). Power to make an FVO is conferred on a police officer of the rank of sergeant or above, or who is authorised by the Commissioner of Police: s 14(1). A court can make an interim FVO pending the determination of proceedings for an FVO that have been commenced: s 23(1). The Act does not specify any matters of which the court must be satisfied before it can make an interim FVO. A police officer may make a police family violence order (PFVO) against a person if the officer is satisfied that the person has committed, or is likely to commit, a ‘family violence offence’: s 14(1). Section 7 defines ‘family violence’ as certain types of conduct by a person against that person’s ‘spouse or partner’.

Section 4 defines ‘spouse or partner’ as someone with whom the person is, or has been, in a ‘family relationship’. A ‘family relationship’, in turn, means a marriage or a ‘significant relationship’ within the meaning of the Relationships Act 2003 (Tas) (the Relationships Act). A ‘significant relationship’ is a relationship between two adult persons who have a relationship as a couple and who are not married to one another or related by family: Relationships Act s 4. A ‘family relationship’ also includes a relationship in which one or both of the parties is between the ages of 16 and 18 and would, but for that fact, be a ‘significant relationship’ within the meaning of the Relationships Act: s 4. Persons are ‘related by family’ (s 7 of the Relationships Act), and therefore cannot have a ‘family relationship’ for the purposes of this Act, if: one is the parent, or another ancestor, of the other; or one is the child, or another descendant, of the other; or they have a parent in common. [page 712] A significant relationship may be registered under Pt 2 of the Relationships Act. In the absence of registration, the existence of a significant relationship depends on all the circumstances, including the following if relevant: 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; the care and support of children; the performance of household duties; and the reputation and public aspects of the relationship. Courts have a broader power under the Justices Act 1959 (Tas) (the Justices Act) to make ‘restraint orders’ where a connection with ‘family relationships’ cannot be found under this Act. Section 15 states that an application to a court for an FVO may be made by: a police officer; or an ‘affected person’ (defined in s 3 as a person against whom family violence is directed); or an ‘affected child’ (defined in s 3 as a child whose safety, psychological wellbeing or interests are affected or likely to be affected by family violence), if the court is satisfied that the child is capable of understanding the nature of the proceedings; or any other person to whom leave to apply is granted by a court. This Act does not give any person, other than a police officer, a right to apply for a PFVO, nor does it impose an

obligation on a police officer to make an application for an FVO or PFVO in any circumstances. A court may include a condition in an FVO that the respondent not possess specified firearms or that the respondent forfeit or dispose of any firearms in his or her possession: s 16(3)(b). A PFVO may also require the respondent to surrender any firearm in his or her possession: s 14(3)(c). A PFVO automatically suspends any licence or other permit relating to the respondent’s possession of a firearm, and prohibits the respondent from applying for, or being granted or issued, such a licence or permit: s 14(15). An FVO remains in force for such period as the court considers necessary to ensure the safety and interests of the person for whose benefit the order is made, or until it is revoked: s 19. The period of the FVO may be extended in certain circumstances: s 20. [page 713] An FVO will only take effect when it is served on the respondent personally: s 25. An interim FVO remains in effect until a final FVO in respect of the same parties takes effect, or until a date ordered by the court: s 23(2). It may be extended at any time until the relevant application for a final FVO has been determined: s 23(3). A PFVO must be served on the person to whom it is issued: s 14(2). It has effect from the time it is served for the period, not exceeding 12 months, specified in the PFVO: s 14(6). The term of a PFVO may be extended by a court on the

application of a police officer, an affected person, the person to whom it is issued or any other person to whom leave to apply is granted: s 14(9). A person who may apply for an FVO or a person against whom an FVO has been made may seek leave of a court to apply for a variation, extension or revocation of the FVO: s 20. Leave to apply may only be granted if the court is satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied: s 20(3). An interim FVO may be varied or extended at any time until the relevant application for a final FVO has been determined: s 23(3). The Act does not explicitly provide for the revocation of an interim FVO. A court may vary, extend or revoke a PFVO on the application of a police officer, an affected person, the person to whom it is issued or any other person to whom leave to apply is granted: s 14(9). A second or subsequent application may only be made with the leave of the court, which may be granted only if the court is satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied: s 14(10) and (11). A PFVO that has been varied or extended by a court is then taken to be an FVO: s 14(13). A PFVO is revoked by the issue and service of an FVO or interim FVO in respect of the same parties: s 14(8). A PFVO may be varied by a police officer with the consent of the affected person and the person against whom it is made, if the variation will not adversely affect the safety and interests of the affected person or any affected child: s 14(7). A person who contravenes an FVO, interim FVO or PFVO is

guilty of an offence (s 35) and is liable to: in the case of a first offence, a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months; or in the case of a second offence, a fine not exceeding 30 penalty units or imprisonment for a term not exceeding 18 months; or in the case of a third offence, a fine not exceeding 40 penalty units or imprisonment for a term not exceeding two years; or in the case of a fourth or subsequent offence, imprisonment for a term not exceeding five years. There is no special provision with respect to the arrest of a person suspected of having breached an FVO or PFVO. However, because breach of an FVO or PFVO is a criminal offence, the normal rules under Tasmanian criminal law in relation to matters such as arrest, remand and bail apply. [page 714] A person may apply to the Chief Clerk of Petty Sessions for the registration of an ‘external family violence order’ — an order made by a court of another state or territory, or New Zealand, which has been made to prevent family violence: s 26. The Chief Clerk may register the external family violence order or refer it to the court for adaptation and modification before registration: s 27. Once registered, an external protection order has the same effect and may be enforced

against a person as if it were an FVO made under the Act: s 28. In certain circumstances, registered external family violence orders can be varied or extended by a court on application by (among others) the person for whose benefit the order was made: s 29. The Domestic Violence Orders (National Recognition) Act 2016 (Tas) has been passed but at the time of writing awaits proclamation. Victoria 10.66 The Family Violence Protection Act 2008 (Vic) was amended in 2014 by the Family Violence Protection Amendment Act 2014 (Vic). The following amendments were made: extending the operation of family violence safety notices; establishing a new process for interim family violence intervention orders; changing the publication restrictions. 10.67 The Victorian Government has established specialist family violence magistrates courts in Ballarat, Heidelberg, Frankston and Moorabin. The magistrates can order respondents to final orders to be assessed for and, if eligible, to attend counselling: Pt 5 Div 2. 10.68 The objects of the Family Violence Protection Act 2008 (Vic) as set out in s 1 are to: (a) maximise safety for children and adults who have experienced family violence; and (b) prevent and reduce family violence to the greatest extent

possible; and (c) promote the accountability of perpetrators of family violence for their actions.

Section 2 states that the Act aims to achieve those objects by: (a) providing an effective and accessible system of family violence intervention orders and family violence safety notices; and (b) creating offences for contraventions of family violence intervention orders and family violence safety notices.

A preamble is also included recognising: non-violence is a fundamental social value; family violence is a violation of human rights; family violence is not acceptable in any community or culture; and the justice system should respect the views of victims of family violence. [page 715] The preamble highlights the following in relation to family violence: it is predominantly committed by men against women, children and other vulnerable persons; it may have a serious impact on the current and future wellbeing of children who are exposed to its effects;

it affects the entire community and occurs in all areas of society; it may involve emotional, psychological and economic abuse; and it may involve overt or subtle exploitation of power imbalance and may consist of isolated incidents or patterns of abuse over a period of time. The type of order made under this Act is a family violence intervention order (FVIO). It protects an ‘affected family member’ in relation to the commission of ‘family violence’: ss 74 and 76. A court may on its own initiative make an FVIO for the protection of children who are family members of the affected family member or respondent: s 77. The person for whose protection an FVIO is sought or made is called ‘the protected person’, and the person against whom the order is sought or made is called the ‘respondent’: s 4. Courts can also make interim orders pending a further hearing of the matter: ss 53 and 101. Under s 53(1) an interim FVIO can be made on application for an FVIO or a variation of an FVIO, if: the court is satisfied that it is necessary to ensure the safety of the affected family member, to preserve the affected family member’s property or to protect a child subjected to family violence by the respondent; or the parties have consented to, or do not oppose, the order; or a family safety violence notice has been issued and there

are no circumstances justifying discontinuing protection of the person. Division 2 of Pt 3 allows for the making of family violence safety notices (FVSNs) by a police officer of the rank of sergeant or above. These are issued in circumstances where a family violence incident has occurred between the affected family member and the respondent, and a police officer responding to the incident applies for an FVSN to ensure the safety of the affected family member; or to preserve any property of the affected family member; or to protect a child who has been subjected to family violence committed by the respondent, until an application for an FVIO can be decided by a court: s 24. An FVSN serves as an application for an FVIO: s 31. The operation of safety notices has been extended in two ways: 1. The first mention date for an intervention order application commenced by a safety notice has been extended from 120 hours to five working days. This means, for example, that if a safety notice is served on a respondent on Friday, the first mention date must be by the following Friday rather than by the Wednesday. If a safety notice includes a condition excluding the respondent from the affected family member’s home, the mention date must be as soon as practicable within that five working day period. [page 716]

A police officer can now apply to a sergeant or above for 2. a safety notice regardless of whether the court is open. This means that safety notices can be issued 24 hours a day, seven days a week; not just when the court is not open. The Magistrates Court or the Children’s Court have jurisdiction to make FVIOs: s 42. ‘Family violence’ involves engaging in certain types of behaviour towards a ‘family member’. Section 8 provides a definition of ‘family member’, to extend to the following persons: a person who is, or has been, the relevant person’s spouse or domestic partner (defined in s 9(1) as a person in a registered relationship within the meaning of the Relationships Act 2008 (Vic), or an adult to whom the person is not married but is in a relationship as a couple where one or each person provides personal or financial commitment and support of a domestic nature); a person who has, or has had, an intimate personal relationship with the relevant person (whether or not it is sexual in nature); a person who is, or has been, a relative of the relevant person; a child who normally or regularly resides with the relevant person or has previously resided with the relevant person on a normal or regular basis; a child of a person who has, or has had, an intimate personal relationship with the relevant person; and any other person whom the relevant person regards or

regarded as being like a family member if it is or was reasonable to regard the other person as being like a family member having regard to the circumstances of the relationship, including matters such as social and emotional ties, whether they live together, recognition of the relationship in the particular community, the duration of the relationship, financial dependence, and provision of care and support. Section 10 broadly defines ‘relative’ and includes parents, grandparents, children, grandchildren, siblings, uncles, aunts, nephews, nieces, cousins and, for an Aboriginal or Torres Strait Islander person, a person who under Aboriginal or Torres Strait Islander tradition or contemporary social practice is the relevant person’s relative. The definition extends to persons related to the protected person by marriage, and for domestic partners includes persons who would be a relative if the domestic partners were married to each other. Also refer to s 76 for the making of an associated final FVIO. The following persons may apply for an FVIO (s 45): a police officer; an affected family member; any person with the written consent of an adult affected family member; where the affected family member is a child under 18, a parent or any other person with the written consent of the parent or with the court’s leave; an affected family member who is a child over 14, with the court’s leave; and

a guardian or any other person, with the court’s leave, if the affected family member has a guardian. [page 717] Pursuant to s 77(2), the court making an FVIO may also make an FVIO on its own initiative to protect a child who is a family member of the affected family member or the respondent. ‘Family violence’ is defined in s 5(1) as: (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 wellbeing 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).

Section 6 defines ‘economic abuse’ as behaviour that is coercive, deceptive or unreasonably controls another person without that person’s consent: (a) in a way that denies the person economic or financial

autonomy they would have otherwise had; or (b) by withholding or threatening to withhold necessary financial support for reasonable living expenses (of the person or their child) if they are entirely financially dependent on the person. Section 7 defines ‘emotional or psychological abuse’ as behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person. Section 5(2) sets out certain types of behaviour that are included in the definition of family violence: (a) assaulting or causing personal injury to a family member or threatening to do so; (b) sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour; (c) intentionally damaging a family member’s property, or threatening to do so; (d) unlawfully depriving a family member of the family member’s liberty, or threatening to do so; (e) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

It is not necessary for the behaviour to constitute a criminal offence: s 5(3). [page 718] Under s 53 a court may make an interim FVIO, on

application, if satisfied on the balance of probabilities that an interim order is necessary pending a final decision about the application: to ensure the safety of the affected family member; or to preserve any property of the affected family member; or to protect a child who has been subjected to family violence committed by the respondent. A court may also make an interim FVIO if, on application, the parties have consented to or do not oppose the making of an interim order, or if an FVSN has been issued for an affected family member and the court is satisfied on the balance of probabilities that there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application. Section 94 confers power on a court intending to make an FVIO to enquire as to whether the respondent holds a firearms authority or weapons approval, or is a person in respect of whom a weapons exemption applies. If a court makes an interim FVIO, the court may include a condition suspending the respondent’s firearms authority or weapons approval or the application of the weapons exemption: s 95(a). If the court makes a final FVIO, the court may include a condition cancelling the respondent’s firearms authority or revoking the respondent’s weapons approval or the application of the weapons exemption (s 95(b)): also refer to ss 158(2), 159(2), 160 and 163. Sections 164 and 165 set out when a seized firearm, firearms authority, ammunition or weapon may be returned, forfeited to the Crown or disposed of, including by reference to the provisions of the Firearms Act 1996 (Vic).

A final FVIO remains in force for the period specified in the order unless it is revoked or set aside on appeal: s 99(a). The court must take into account the safety of the protected person, the views of the protected person, any assessment by the applicant (and the protected person if they are not the same person) of the level and duration of risk from the respondent: s 97(2). The court may take into account any relevant matters raised by the respondent: s 97(3). If a court fails to specify a period in an order, the order remains in force until it is revoked or set aside on appeal: s 99(b). Section 60 states that an interim FVIO ends when: it ceases to have effect upon the making of a final FVIO; the court refuses to make a final FVIO; it is revoked; or the application for a final FVIO is withdrawn. An FVSN starts when it is served on the respondent and remains in force until either the court has made an FVIO and it has been served on the respondent, or the court refuses to make an FVIO: s 30(1). Section 100 states an application may be made by a party to the proceeding (an affected family member, the applicant or the respondent) or a police officer to vary or revoke an FVIO. An application to extend an order can also be made: ss 106 and 108. The respondent must have the court’s leave to apply for a variation or revocation, but does not need leave to apply for an extension: s 109. [page 719]

When considering to vary or revoke an FVIO, a court must have regard to the following circumstances (s 100(2)): the applicant’s reasons for seeking the variation or revocation; the safety of the protected person; the protected person’s views about the variation or revocation; and whether or not the protected person is legally represented. The court must also decide whether: there has been any change in the need to protect another person protected by the order from being subjected to family violence: s 102(1)(a); other persons have become family members of the respondent or protected person: s 102(1)(b); and there are any FLA orders in relation to the living arrangements of, or the respondent spending time or communicating with, a child who is referred to in s 102(1) (a) or (b). Where a child referred to in s 102(1)(a) or (b) needs protection from family violence, the court may, on its own initiative, vary the order or make a new order for the child as a protected person: ss 103 and 104. The court may make interim orders varying or extending the FVIO: ss 101 and 107. Sections 37 and 123 refer to offences. The maximum penalty is imprisonment for two years or 240 penalty units (currently $37,310.40), or both. In order to be guilty of an

offence, the defendant must have been served with a copy of the order or notice: ss 35, 37(1), 57, 96 and 123(1)(b). If a police officer believes on reasonable grounds that a person has breached an FVIO or FVSN, the officer may, without warrant, arrest and detain the person: ss 38 and 124. Part 7 sets out specific enforcement powers relating to FVIOs and FVSNs. A police officer may, without warrant, enter and search any premises where the officer on reasonable grounds believes a person to be if the officer has the consent of the occupier, or the officer reasonably believes (s 157): the person has assaulted or threatened to assault a family member; the person is on the premises in contravention of an FVIO or FVSN; or the person is refusing or failing to comply with a direction: s 14. A magistrate may issue a search warrant, on application by a police officer, if an FVIO or FVSN has been made against a person and the police officer believes on reasonable grounds that the person is committing or is about to commit an offence against the Act: s 160(2). Section 177 states an appropriate registrar may register a ‘corresponding interstate order’ or a ‘corresponding New Zealand order’: s 184. Part 8 prohibits the restriction of publication. Previously the Act restricted publication of reports about proceedings under the Act and family violence

[page 720] intervention orders (intervention orders) that are likely to lead to the identification of the subjects of intervention orders or any persons involved in the proceedings, unless a publication order has been made. The court could make a publication order where publication is in the public interest and is just. The court could not publish matters that referred to a child. The publication restrictions in the Children, Youth and Families Act 2005 (Vic) apply to intervention orders made by the Children’s Court and proceedings under the Act in that court. No changes have been made to those publications restrictions. However, the court may only make an order if it considers that publication is in the public interest and is just, but when making a publication order in these matters, the court must have regard to the views of any parent or guardian of the child. Two changes were made in 2014 about reporting of criminal proceedings that involve a FVSN or FVIO. Broadly, in certain circumstances, the change allows: publication of a report about contravention of an FVSN or FVIO; a report published about another family violence related offence to refer to an FVSN or FVIO. The Act does not allow publication of any report about the making or alteration of an FVSN or FVIO outside the context of a criminal offence. A person who is the adult victim of a relevant offence may

publish a report. A relevant offence is: a contravention of an FVSN or FVIO; another offence where the person’s conduct would have contravened the FVSN or FVIO, but there was no charge, conviction or finding of guilt for a contravention offence; an offence that led to the making of an FVSN or FVIO. Another person may also publish a report with the consent of the adult victim. An adult victim cannot consent to the identification of any other person protected by the FVSN or FVIO, or involved in a proceeding relating to the notice or order. An adult victim may withdraw their consent before the report is published. A person must not publish a report after an adult victim withdraws their consent. This does not apply where the person did not have a reasonable opportunity to prevent the report being published after consent was withdrawn. However once a report (the original report) is published, the story can be published again without the specific consent of the adult victim. A corresponding order is an order that substantially corresponds to a final order under the Family Violence Protection Act 2008 (Vic), and is made under a law of another state or territory, or of New Zealand, relating to the protection of persons from family or domestic violence that substantially corresponds to the Act or is prescribed as such. On registration, a corresponding interstate order may be enforced against a person as if it were a final order that had been made under the Act and served on the person: s 179.

Such an order can be varied on application (s 181), but variations made by the corresponding state or territory after registration in Victoria have no [page 721] effect in Victoria: s 180. A corresponding New Zealand order, once registered, has the same effect in Victoria as in New Zealand, and can be enforced as if it were a final order: s 186. It should be noted that such orders may not be varied by a court in Victoria, but variations, revocations or extensions by a New Zealand court have effect in Victoria: s 187. In October 2016 the Victorian Parliament passed the National Domestic Violence Order Scheme Act 2016 (Vic) which would implement measures agreed upon by COAG in 2015 to put in place a national scheme for domestic violence orders. But the Victorian Government was critical, stating it would not commence the Act until it was satisfied ‘that it will not jeopardise the safety of victims, or impose an unreasonable burden on our police and courts’. See National Domestic Violence Order Scheme Act 2016, Bill Explanatory Memorandum and Bill Second Reading Speech. Western Australia 10.69 The principal Act is the Restraining Orders Act 1997 (WA) which is supplemented by the Restraining Orders Regulations 1997 (WA) (WA Regulations). Some significant changes that have come into effect since 2011 include a ‘presumption of imprisonment’ when offenders breach a restraining order for the third time. It was further amended

by the Restraining Orders and Related Amendment (Family Violence) Bill 2016. The long title of the Act states the aim is:

Legislation

… to provide for orders to restrain people from committing acts of family and domestic or personal violence by imposing restraints on their behaviour and activities, and for related purposes.

A court can make a violence restraining order (VRO): s 11A. A VRO is an order restraining ‘the person bound by the order’ (respondent) from committing an ‘act of abuse’ against the person protected by the order. An ‘act of abuse’ is either an act of family and domestic violence or an act of personal violence. Various interim orders can be made which last more than 72 hours: ss 29(1)(a), 43A(7)(a) and 63(4)(b). A magistrate may also make an order in response to a telephone application: s 23 (telephone orders). A telephone order can be made in urgent cases where it is impracticable for an application for a VRO to be made or to be heard in court. Where a respondent does not object, the interim order automatically becomes a final order: s 32. Orders lasting less than 72 hours can also be made on telephone application or by a court in the absence of the respondent. Where it is impracticable for an application for a VRO to be made or to be heard in court, a police order lasting for up to 72 hours can be made where considered necessary to ensure the safety of a person from family and domestic violence: s 30A(1). The Magistrates Court and the Children’s Court have jurisdiction to make a VRO: s 7A. If the respondent is a child

under 18, an application for a VRO must be made to the Children’s Court: s 25(3)(a). In all other cases, the application is to be made to the Magistrates Court: s 25(3)(b). [page 722] Courts hearing matters pursuant to the Family Court Act 1997 (WA) (s 63) or the FLA also have jurisdiction: ss 7A(d), 63 and 63A. A VRO can be made regardless of the particular kind of relationship with the respondent. Where there is a ‘family and domestic relationship’, the types of conduct which provide grounds for making a VRO are wider. To be an ‘act of family and domestic violence’, the act must have been committed by a person against another person with whom he or she has ‘a family and domestic relationship’: s 6(1). ‘Family and domestic relationship’ is defined in s 4 as a relationship between two persons: who are, or were, married to each other; who are, or were, in a de facto relationship with each other; who are, or were, ‘related’ to each other (‘related’ means being related to a person taking into consideration the cultural, social or religious backgrounds of the two persons, or being related to a person’s current or former spouse or de facto spouse); one of whom is a child who ordinarily or regularly resides (or resided) or stays (or stayed) with the other person;

one of whom is, or was, a child of whom the other person is a guardian; or who have, or had, an ‘intimate personal relationship’ or ‘other personal relationship’, with each other (‘other personal relationship’ means a personal relationship of a domestic nature in which the lives of the persons are, or were, interrelated and the actions of one person affects, or affected, the other person; ‘intimate personal relationship’ is not defined). An application can be made by the person seeking to be protected or by a police officer: s 25(1). A parent, guardian or a child welfare officer can apply on behalf of a child: s 25(2)(a). A guardian who has been appointed under the Guardianship and Administration Act 1990 (WA) may apply on behalf of the person: s 25(2)(b). Applications may also be made by telephone: ss 18(1)–(2) and 62C. Section 3 defines ‘act of abuse’ as an ‘act of family and domestic violence’ or an ‘act of personal violence’. Section 6(1) defines an ‘act of family and domestic violence’ as one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship: (a) assaulting or causing personal injury to the person; (b) kidnapping or depriving the person of his or her liberty; (c) damaging the person’s property, including the injury or death of an animal that is the person’s property; (d) behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;

(e) pursuing the person or a third person, or causing the person or a third person to be pursued — (i) with intent to intimidate the person; or

[page 723] (ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person; (f) threatening to commit any act described in paragraphs (a) to (c) against the person.

Every VRO includes a restraint prohibiting the respondent from being in possession of a firearm or firearms licence and from obtaining a firearms licence: s 14(1). The respondent must surrender all firearms and firearms licences: s 14(2). The police have power to search for and seize a firearm or firearms licence that the respondent refuses to surrender: s 62E. Section 14(5) provides some exceptions, that is: the respondent cannot otherwise carry on his or her usual occupation; and the conduct which gave rise to the VRO did not involve the use or threatened use of a firearm; and the safety of any person, or their perception of their safety, is not likely to be adversely affected by the respondent’s possession of a firearm. If an exception applies, the court must impose any reasonable conditions requested by the applicant or person

seeking to be protected. Once served, a VRO comes into force: s 16(1). Generally, a VRO is to be served personally, but in certain circumstances it can be served orally (including by telephone) or by post: s 55. If a court is satisfied a person is deliberately avoiding being served, it can order substituted service: s 60. A final VRO made at a final order hearing remains in force for the period specified in it, or if no period is specified, for two years: s 16(5). In the case of an interim order that becomes a final order under s 32, the duration is calculated from the date on which the interim order came into force: s 16(5)(c). Where a telephone order becomes a final order under s 32, the maximum duration of the order is three months: s 16(5)(a). Section 16(4) states that an interim order remains in force until one of the following occurs: a final order comes into force; a final order hearing in respect of the matter is concluded without a final order being made; the interim order is cancelled or expires; or in the case of a telephone order, three months from the time the order came into force. An application for the variation or cancellation of a VRO may be made by the person protected by the order, or a police officer on his or her behalf, or (with leave) by the respondent: s 45. If the person protected by the order is a child, an application may also be made by a parent or guardian or a child welfare officer: s 45(2)(a). Section 46 applies to respondents making an application.

The court is to grant leave for the respondent to vary or cancel the order if it is satisfied that: there is evidence to support a claim that a person protected by the order has persistently invited or encouraged the applicant to breach the order, or by his [page 724] or her actions has persistently attempted to cause the applicant to breach the order; there has been a substantial change in the relevant circumstances since the order was made; or in respect of an application to vary an interim order, there is evidence to support a claim that the restraints imposed by the order are causing the applicant serious and unnecessary hardship and that it is appropriate that the application be heard as a matter of urgency. Section 49 deals with cancelling and/or making a new VRO or dismissing an application. Section 61 deals with breaches and includes a maximum penalty of two years imprisonment or a $6,000 fine, or both. Breach of a VRO is a criminal offence; the normal rules under Western Australian criminal law in relation to matters such as arrest, remand and bail apply. A person protected by an ‘interstate order’, or a police officer, may apply to a court for registration of that order: s 75. ‘Interstate order’ means a restraint order made by a court of another state or territory under a law of that state or

territory corresponding to this Act: s 74. Once registered, the interstate order operates in Western Australia as if it were a final VRO that had been served on the respondent when it was registered: s 77. Notice of the registration is not to be given to the respondent, unless the applicant for registration so requests: s 76. Where a registered order is varied by a court in the state or territory in which it was made and a notice of the variation is given to the registrar of the relevant Western Australian court, the variation operates in Western Australia: s 78. A registered order may also be varied or cancelled under Pt 5 of the Act: s 79. Registration also applies to a ‘foreign restraining order’ that is in force under a corresponding law of New Zealand or a prescribed country: ss 79A–79F. There is conflict and inconsistency between orders under the FLA relating to children and state/territory family violence orders. The terms of orders relating to children, whether pursuant to the FLA or a state/territory family violence law, may appear to be inconsistent. The most common example is where an FLA order provides for a child to spend time with a parent who may also be named as a defendant on a family violence intervention order (FVIO) in relation to that same child. The person named as the defendant will have great difficulty arranging to spend time with the child without breaching the FVIO. Section 68N of the FLA attempts to resolve inconsistencies between family violence orders and orders, injunctions and arrangements in relation to children spending time with particular persons. An FLA order or injunction can override an existing state/territory family violence order to enable a defendant to

spend time with a child and another person. Where a state/territory family violence order is inconsistent with an FLA order or injunction that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child, it is, to the extent of the inconsistency, invalid: s 68Q(1). [page 725] Section 68Q(2) of the FLA provides that the following people may apply for a declaration that a state/territory family violence order is inconsistent with the FLA injunction or order: the applicant for the FLA injunction or order; the respondent to the application for the FLA injunction or order; the person against whom the state/territory family violence order is directed (if that person is not the applicant or the respondent in the FLA proceedings); or the person protected by the state/territory family violence order (if that person is not the applicant or respondent in the FLA proceedings). Section 68P(2) and (3) of the FLA stipulates that when a court makes an order or grants an injunction under the FLA that is inconsistent with an existing state/territory family violence order, the court must: specify in the order or injunction that it is inconsistent with an existing state/territory family violence order;

explain how contact provided for in the order or injunction is to take place; explain the purpose and effect of the FLA order or injunction and its relationship with the existing state/territory family violence order to the parties, the person to whom the state/territory family violence order is directed, and the person protected by that order (if the person is not a party to the FLA proceedings); and explain to all parties the consequences of breaching the FLA order or injunction and the process for seeking its variation or revocation. There is conflict and inconsistency between orders under the FLA relating to property and state/territory family violence orders. There is potential for an FLA order to conflict with a state/territory family violence order where there are no children involved. This may occur where an injunction is granted to prevent one party from entering the family home. At the same time, a family violence intervention order might have limited conditions which permit the defendant to enter the family home. Section 114AB(1) of the FLA does not expressly deal with a situation where orders made under the state/territory family violence orders are not capable of operating concurrently with orders made under s 68B or s 114 of the FLA. In this case constitutional principles, that an order made pursuant to a Commonwealth law will prevail over an order made under a state or territory law to the extent that the orders are inconsistent with each other, apply.

The emergence of tort proceedings for

domestic violence 10.70 In Marriage of Kennon (1997) 22 Fam LR 1 at 19, Fogarty and Lindenmayer JJ in a joint judgment (citing L Karp and C Karp, ‘Beyond the Normal Ebb and Flow … Infliction of Emotional Distress in Domestic Violence Cases’ (1994) 28(3) Fam LQ 389) stated: A greater awareness and concern about domestic violence, the emergence of ‘domestic torts’ imposing new standards of accountability on spouses and the erosion

[page 726] of inter-spousal tort immunity have increased court involvement in protecting and compensating the battered or abused.

Their Honours went on to say (at 19–20): Legal remedies for domestic violence which have been suggested in recent times outside the Family Law Act and equivalent legislation in other countries, include the following: more frequent criminal prosecutions; greater use of intervention orders and greater involvement by the police; civil actions for damages; the tort of intentional infliction of emotional distress; breach of fiduciary duty; intentional infliction of nervous shock. It is unnecessary for present purposes to discuss any of these

remedies. They indicate, however, a search for legal responses which may address the myriad aspects of domestic violence.

10.71 At common law, spouses were unable to sue each other in contract or in tort. Section 119 of the FLA purports to remove the mutual immunity of husband and wife from suits for contract or tort against each other. It does not, however, invest the Family Court with jurisdiction to deal with matters of tort or contract. Section 119 of the FLA provides that parties to a marriage may bring actions against each other in tort and contract. The principal action brought so far has been the common law action for battery and assault. Battery is committed ‘by intentionally bringing about a harmful or offensive contact with another person’s body’.38 According to Luntz et al, an assault is committed by intentionally creating in another person an apprehension of imminent harmful or offensive contact. 10.72 Under common law, an assault or battery constitutes a tort giving rise to civil liability.39 In other words, an assault or battery victim can sue the perpetrator for damages. While an act of violence in the home may constitute an assault, victims of family violence have traditionally been reluctant to pursue tortious remedies.40 Historically, the most serious impediment to pursuing tortious remedies was the common law doctrine of immunity between spouses. Lucinda Finley explains how this doctrine has been used to prevent tortious actions between spouses: Inter-spousal immunity was originally based on the notion that husband and wife merged into one being — the husband — upon marriage … In its early days, the

[page 727] doctrine was often developed and applied in suits brought by battered wives against their husbands, and operated to close off tort law as a root for compensation for victims of domestic violence and sexual abuse. The principal rationale offered for the immunity in early cases was that litigation might disrupt family harmony or the sanctity of the conjugal bond.41

10.73 In 1976, s 119 of the FLA removed the remaining limitations on the right of a spouse to bring an action in tort against the other spouse. Other impediments, however, to the use of tort remedies remained. The high cost of legal action, the limited availability of legal aid and the difficulty of enforcement discouraged many victims of family violence from pursuing such remedies.42 10.74 In 1987, the Commonwealth, the states and the Northern Territory enacted complementary Acts, each entitled the Jurisdiction of Courts (Cross-Vesting) Act 1987, to cross-vest the civil jurisdiction of their superior courts in the superior courts of each other. The object of this legislation is to minimise the possibility of a proceeding failing in one superior court for want of the jurisdiction possessed by another superior court. Effectively, this allows the Family Court to exercise its cross-vested jurisdiction to hear and determine a claim for damages arising from family violence, provided that there is a proceeding within the original jurisdiction of the court to which it may be attached: Marriage of Kennon (1997) 22 Fam LR 1 at 9. While the practice of including a claim for damages in family law proceedings is a relatively new one, it has become

more frequent since the landmark decision in Marriage of Marsh (1993) 17 Fam LR 289; (1994) FLC ¶92-443. The gain to the Family Court through the advent of crossvesting legislation cannot be underestimated. The increase in jurisdictional power provided an opportunity for victims of violence to claim and receive appropriate compensation in the Family Court. Sadly, as was noted in Chapter 2, so much that was gained by the Family Court was taken away by the High Court decision in Re Wakim; Ex parte McNally (1999) 24 Fam LR 669. Put simply, the major issue to be decided in Re Wakim was whether the Commonwealth and the states, acting singly or in cooperation, could confer state jurisdiction on federal courts. The majority of the judges hearing the matter held that federal courts could not be given power to exercise state jurisdiction; thus provisions of the cross-vesting scheme which purported to enable the Federal Court and Family Court to hear ‘states’ matters’ were invalid. As a matter of jurisdiction, claims for compensation for injuries sustained in an assault correctly belong in a state court, even in circumstances relating to a marriage. Therefore, this farreaching decision appears to have put an end to a claim for tortious damages by a victim in a matter before the Family Court. [page 728]

In Marriage of Marsh (1993) 17 Fam LR 289; (1994) FLC ¶92443, the applicant wife brought a cross-vested claim for

common law damages of $10,000 arising out of an assault on her by the respondent husband. Medical evidence submitted by the wife corroborated the applicant’s injuries and the manner in which they had occurred. Coleman J (at 296) accepted this evidence and awarded the wife $2,000 general damages for pain and suffering. In addition, his Honour awarded $2,000 aggravated and $3,000 exemplary damages because he felt that the $2,000 in general damages was not adequate to compensate her and punish the husband. His Honour did not, however, take the violence into account in the property settlement under s 79 of the FLA. The decision of the court in this case to grant aggravated and exemplary damages is noteworthy. It reflects a changing attitude within the Family Court of compensating victims for the violence suffered at the hands of a family member. Significantly, also, the judgment clearly spells out that the courts will no longer condone violence in the home. Coleman J stated (at 296): This is a case where the message must be spelt out to persons such as the respondent that they cannot assault and beat wives or de facto wives and escape civil liability on the basis that it was a ‘domestic’. I know of no principle which renders an assault and battery in a domestic context less reprehensible than in any other context. Coleman J rejected an argument for the husband that the damage payment should be taken into account under s 75(2)(o) to adjust the award under s 79 in his favour.

Marriage of Marsh was not an isolated case of the use of crossvested jurisdiction to award damages for violence within the family. Cross-vested jurisdiction was also used in W and W; R and G (by their next friend P) (Intervener) (1994) 17 Fam LR 751;

FLC ¶92-475 to award damages to two victims of child sexual assault. In that case, the wife brought property proceedings and a cross-vested claim was brought by the step-children of the husband in the Family Court. The latter claim resulted from sexual abuse of the children in respect of which the husband had been convicted and was serving a prison sentence. In hearing the claim, Brown J (at 756) acknowledged that ‘money cannot renew a physical frame that has been battered and shattered, nor a mind affected through violation by traumatic events, particularly where the mental trauma experienced in childhood is likely to have serious and long-lasting effects in later life’. In assessing damages, her Honour (at 759) took into account the age of the children, the nature of the assaults and the fact that ‘sexual abuse at home by a loved and a trusted person was conducive to the most serious and lasting psychological harm’ to award $97,500 and $80,000 in damages to G and R respectively.

In Re Q (1994) 18 Fam LR 442; (1995) FLC ¶92-565, the parties married in 1972 and were divorced in 1994. There were four children of the marriage. The parties’ property included an amount of damages paid to the husband for a work-related injury [page 729] suffered in 1989. The parties separated when their daughter disclosed to a teacher that the husband had sexually assaulted her for years. The husband pleaded guilty to criminal charges and was sentenced to a prison term. In 1993, the wife applied to

the Family Court for property settlement and spousal maintenance. In 1994, she commenced an action against the husband in the County Court for personal damages arising out of the husband’s assault on the daughter. She also commenced an action as the daughter’s next friend against the husband seeking damages for injuries suffered by the daughter. Both damages actions were transferred to the Family Court under s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). The daughter’s claim was settled before the hearing commenced, with the daughter to be paid $100,000 by the husband. The wife did not continue her own claim for damages.

In McKean and Page (1999) 25 Fam LR 15, McKean lived with Ms Page, the mother of the child MT, from 1989 to 1992. MT was the child of her mother’s previous relationship. McKean, while on bail for assaulting Ms Page, broke into her home and stabbed both her and MT, who was then almost five years old. The court at first instance heard an application for damages for assault on behalf of Ms Page. This was subsequently abandoned during the course of proceedings. In addition, the court heard an application that Ms Page be appointed next friend of MT and that she be allowed to bring an application under the Jurisdiction of Courts (Cross-Vesting) Acts (Cth) and (NSW) for damages for assault on behalf of MT. The matter was heard before Faulks J. In bringing down a finding, his Honour described the events which occurred on the night of the assault by McKean, and said (at 20): It is not difficult in such circumstances to imagine the terror and mental anguish that must have been suffered by MT. The injury caused to MT who was stabbed by Mr McKean was the subject of a gruesome and graphic photograph which became Exhibit M2. As a result MT

has a scar the same length as the stab wound. It is asserted and I accept that she is very self-conscious of the scar and is very embarrassed on (sic) hurt by it … The medical evidence suggests that the scar because it has not gone down in four years, will probably be with her for the rest of her life … She suffers from posttraumatic stress disorder. She is very angry and very frightened of men, even her mother’s father. She felt particularly betrayed by the respondent because he always used to pick her up because she was only a baby. He used to pick her up and sing to her and he told her that he loved her and things like that. She wakes in the middle of the night screaming and crying, in turn waking the whole house and has been having psychotherapy. His Honour went on to say (at 20): In summary, the matters relevant to my assessment of these damages are as follows: The pain and suffering MT must necessarily endured (sic) at the time of the assault. The permanent injuries suffered as a result of the assault. This includes a scar on her stomach about which she feels self conscious. The continuing medical treatment required by MT to overcome the trauma that was associated with the assault. [page 730] Any economic loss that MT may suffer brought about by her continuing need for treatment or the social disabilities which she has so far suffered.

Any significant effect upon MT’s ability to enter into meaningful relationships in the future is clearly something that ought to be taken into account. His Honour then noted that counsel for MT sought general damages in the sum of $40,000–$45,000, plus an award for aggravated damages in the sum of $10,000, and exemplary damages in the sum of $5,000. His Honour declined to make an award for exemplary damages, saying (at 21): Generally speaking, exemplary damages are awarded in situations of civil wrong where no criminal proceedings are contemplated or possible. The purpose of such damages is to indicate the community’s disapproval of and in effect, punishment of the respondent. In the circumstances of this case, while the penalty imposed on Mr McKean seems relatively small by reference to the horrific circumstances in which he committed his assault, this is not a matter which I am obliged to determine. The community has passed the judgement of its concern about the conduct of the respondent and it seems to me that it is inappropriate that this court should impose any further adjustment to take account of this. His Honour then dealt with the claim for aggravated damages, citing (at 21) a passage by Coleman J in Marriage of Marsh ((1993) 17 Fam LR 289 at 295–6; FLC ¶92-443): The law is well settled that, where the conduct of the defendant is deliberate, in addition to damages awarded by way of compensation, the court may also include a sum in respect of any indignity sustained by the plaintiff, such damages being termed aggravated damages and, though theoretically compensatory, providing for a type of intangible loss not otherwise accounted for under a general damages award.

Faulks J concluded his award for aggravated damages, saying (at 21): The circumstances of this matter and this assault must be particularly apt for the award of aggravated damages. The assault occurred on a defenceless child who thought she was loved and cared for by the perpetrator. The assault was carried out at night in a cowardly, invasive and horrific manner. Even the merest forethought on the part of the respondent must have shown him that if the child had survived the consequences for her for many many years must have been horrible indeed. … In my opinion there should be an award of aggravated damages. His Honour ultimately concluded that the total damages award should be $65,000, made up of the following components: 1.

for pain and suffering: $35,000;

2.

for the scarring including the future plastic surgery treatment: $10,000;

3.

for the continuing trauma and concern arising from the incident including therapy and psychological treatment: $10,000; and

4.

for aggravated damages: $10,000.

In Marriage of Kennon (1997) 22 Fam LR 1, the Full Court (Fogarty, Baker and Lindenmayer JJ) signalled a significant change of attitude in relation to the issue of the relevance of violence in property and maintenance proceedings. In this case, the [page 731]

parties commenced cohabitation in April 1989. The husband was then aged 46 and the wife 30. The husband was an executive in a company controlled by him and he was a person of substantial means, having net property of approximately $8.7 million and an income of approximately $1 million per annum. The wife, on the other hand, was an employee of a television station and earned approximately $45,000 per annum. The husband’s third marriage was dissolved in June 1991 and the parties married in September 1991. They separated for two brief periods in 1991 and 1993. They finally separated on 1 March 1994. There were no children of the marriage. In September 1994, the wife filed a property application which included a claim under the cross-vesting legislation ‘that the husband pay to the wife, as damages for assault and battery, the sum of $50,000 including exemplary damages’. The wife alleged that during the course of the cohabitation there were many instances when she was placed in fear of her safety by the violence of her husband’s actions. The wife was left in fear by the husband’s frequent rage, clenched fists and words of abuse. She also claimed that the husband humiliated her in front of his two younger children from a previous marriage. The wife claimed damages for a series of assaults and batteries which had occurred over the five years of cohabitation, each of which was denied by the husband. They were pleaded in a general fashion as ‘many instances’ in which similar actions took place. Only two assaults and seven batteries were particularised. Coleman J found two batteries to be established and rejected the other claims. The evidence as to the damage suffered by the wife indicated that she suffered psychological damage which was evidenced by symptoms such as lethargy, anorexia, headaches and the like. Obviously those results were cumulative and not caused by any one single incident. Furthermore, some of the psychological impact was due to other factors such as the stress of separation, behaviour of the husband not amounting to

violence and the wife’s loss of contact with the husband’s children. Coleman J concluded that he could not consider generalised allegations of violence because of their vagueness and awarded damages in respect of two batteries which had been established to the court’s satisfaction. Compensatory, aggravated and exemplary damages totalling $43,000 were awarded to the wife. The wife appealed. His Honour found unsatisfactory the approach of requiring each alleged assault to be separately identified and proved in a domestic violence case, but regarded himself as bound by authority to require this. In examining the approach of the trial judge, Lindenmayer and Fogarty JJ referred to the submission on behalf of the husband that the applicant must identify individual events and satisfy the court on the balance of probabilities that there was a causal connection between the particular assault and the loss in respect of which damages are claimed. According to their Honours, this approach does not sit easily with the nature of family violence and the court’s responsibility in relation to its prevention. Their Honours stated (at 6): Usually assault cases involve a specific assault or assaults and usually on one occasion but sometimes over a confined period of time. But it is more likely in proceedings between parties who are or have been married to each other for a number of years that the allegations will be of a series of alleged assaults, some grave and others less serious, stretching over a period of time. This usually results in [the] difficulty of pinpointing, with sufficient particularity, each allegation of violence and then connecting any longer term [page 732]

consequences and result in damage to the individual assaults. Consequently, it may seem that in these cases the applicant should be entitled to rely upon an established history of domestic violence over a period of time even if he or she cannot sometime afterwards particularise each individual event. They continued: It appears to us that, as the law presently stands, the trial judge was correct in requiring each alleged assault to be separately identified and proved. His Honour recognised that this approach could be unfair to a claimant because domestic violence over a period of time may not be particularised and proved in this way and the approach may substantially erode the accumulative effect of these assaults, but these are common law claims for damages for assault. They are not part of the ordinary jurisdiction of the Family Court. They are only heard by this court as a consequence of the cross-vesting scheme and that scheme makes it clear that in exercising that jurisdiction, the Family Court is to apply the law of the relevant state.

Marriage of Kennon (1997) 22 Fam LR 1 has been applied in the following two recent judgments.

The first matter of Morgan v Bell [2011] VSC 302 was heard before Vickery J in the Supreme Court of Victoria. It was a de facto property matter under Pt IX of the now repealed Property Law Act 1958 (Vic). The court in this case was required to consider whether the alleged acts of violence on the part of Mr Bell did occur, and whether, if they did, they had the effect of making Ms Morgan’s contributions more arduous in the sense

that the conduct had a discernible impact upon the contributions she made (at [228]). Vickery J held (at [244]–[246]): I am satisfied that during the last year of the relationship between November 2006 to October 2007, while Ms Morgan was making a substantial contribution to the relationship in her role as the principal caregiver and mother to Pia, undertaking this responsibility was made more arduous for her by Mr Bell’s domestic aggression during this period. This manifested itself in scenes of violent and drunken behaviour during this time. As observed by the Court of Appeal in Giller v Procopets [2008] VSCA 236 the effects of domestic violence are not limited to physical injury. It is self-evident that the assaults on Ms Morgan made her apprehensive that she would be assaulted again in the future and made her anxious to avoid provoking Mr Bell into such behaviour. I am satisfied that the conduct had a discernible and detrimental impact upon the contribution she made as a mother to Pia and homemaker, and would have made it more difficult for her to discharge her role as such in the last year of the relationship. The conduct of Mr Bell described is relevant in determining the value of Ms Morgan’s contributions. In this matter the asset pool was over $4 million with the majority of the pool considered to be Mr Bell’s pre-relationship assets. Ms Morgan was seeking $1.5 million and Mr Bell was offering $400,000. Orders were made that Ms Morgan receive $675,000. [page 733] The second matter is Whelan and Whelan [2010] FamCA 530.

This matter was heard before Watts J. The wife alleged that the husband made her contributions over the period of the marriage significantly more arduous by perpetrating family violence against her. The wife also alleged that throughout the marriage and after separation, the husband wasted money on gambling. On the other hand the husband alleged that the wife had not properly accounted for profits from the agistment business after separation. Both parties asserted against the other that moneys should be added back as a result of actions taken by the other party. At the time of the hearing the wife was 56 years of age and the husband 59. They had commenced living together in 1972, married in 1974, had two children (31 and 33 years of age at the time of hearing) and ultimately separated after 34 years. Watts J felt the wife was a more credible witness and that the husband’s evidence was not reliable. His Honour referred to the Full Court in Kennon and Kennon (1997) FLC ¶92-757 and said (at [160]): Once findings of fact are made about one party’s conduct, it may or may not be possible to make findings about the physical or psychological effect of that conduct on the other party. Whether or not that is possible in order to establish a ‘Kennon’ claim, the court needs to make some finding about the effect of the conduct of one party upon the contributions made by the other. Watts J (at [163]–[176]) outlined the wife’s evidence of family violence stemming from 1974 to after separation and concluded (at [177]): I accept the evidence from the wife and the witnesses who corroborate her allegations of a history of violence and abusive conduct by the husband towards the wife during the time that they were together. The evidence

substantiates a pattern of behaviour that commenced at the beginning of the marriage and was a feature of the relationship between the husband and wife throughout their many years together. There is some direct evidence of the practical and emotional effect the husband’s conduct had on the wife. I am in the context of this case prepared to infer that the proven history of the husband’s violence, in fact, meant that the contributions for which the husband concedes the wife made, were made in circumstances, where they were significantly more arduous as a result of the husband’s conduct than they would have otherwise been if he had not behaved in the way that he did. I am comfortably satisfied that the increased contributions by the wife entitled her to the adjustment of 10 percent which is sought by her. As to the allegations made by the wife in relation to the husband’s gambling, Watts J held (at [178]): The husband’s gambling has been discussed … and I have added back an amount of $91,143 in respect of it (item 23). I have to be cautious not to double count. The $91,000 relates to a calculation derived from the records from Sportingbet Australia and from the Star City records (an approximate period from 2004 to 2007). I find that the husband did consistently gamble throughout the marriage and I am satisfied that that gambling activity meant that there were less assets as at the date of separation than there would otherwise have been had the husband not involved himself in gambling activities. I am not able to put any figure on further loses [sic] apart from those that I have quantified at item 23. [page 734]

His Honour stated (at [182]): I find that the contributions to the asset pool, looked at on a global basis as at the date of hearing, to be 50/50 had it not been for the adjustment that I have foreshadowed based on the conclusion that the husband’s behaviour during the marriage had made the wife’s contributions significantly more arduous. Having taken those circumstances into account, I find that an appropriate adjustment based on contributions is 60/40 in favour of the wife. The final property split was 57.5/42.5 in favour of the wife; an adjustment was made in relation to the husband for spousal maintenance.

Refer to Chapter 8 for more recent cases applying the Kennon principles. 10.75 Where a party’s contribution to property acquisition and conservation has been significantly affected by the impact of family violence they may consider bringing a dual action in the family courts. Essentially this means they can file an application to adjust property pursuant to the FLA and at the same time call upon the accrued jurisdiction of the family courts with respect to a civil suit. A party may in the first instance seek damages for the harm caused by the family violence and then have their matter heard with respect to a property adjustment: FLA s 33.

Criminal law 10.76

The most coercive manner in which the law deals

with domestic violence is, of course, through the imposition of criminal sanctions. It is beyond the scope of this book to provide a detailed examination of the type of violent behaviour that is proscribed by the criminal law. However, for the sake of completeness we provide a brief overview of the forms of behaviour towards one’s partner (and indeed all people) that constitute a criminal offence. Common assault 10.77 The broadest criminal law offence against violence is the common law crime of common assault. There are two limbs to this offence: (a) where the accused creates an apprehension (awareness) in another person of an unlawful and imminent application of force without the other person’s consent (this is known as the ‘threat’ or ‘assault’ limb of common assault); and (b) where the accused unlawfully applies force against another person (whether by a part of the accused’s body or through an instrumentality such as a car or a stick) without his or her consent (this is known as the ‘force’ or ‘battery’ genre of common assault). In the Australian Capital Territory, New South Wales and South Australia, the definition of assault continues to be found at common law. In Victoria, s 23 of the Summary Offences Act 1966 (Vic) encompasses a summary offence of assault. This is comprised of the same elements as the common law offence of common assault that still exists in Victoria as an indictable offence: R v Patton [1998] 1 VR 7; Crimes [page 735]

Act 1958 (Vic) s 320. In the Code jurisdictions, assault is defined in the respective Codes: Criminal Code 1983 (NT) s 188; Criminal Code 1899 (Qld) s 245; Criminal Code 1924 (Tas) s 182; Criminal Code Act Compilation Act 1913 (WA) s 222. The definitions of assault in these sections are similar to common assault at common law. It is important to note that to be guilty of common assault there is no need for any form of injury to be caused to the victim. In all jurisdictions other than Tasmania, it is an offence to commit an assault occasioning bodily harm or injury. The precise wording differs in each jurisdiction. In the Australian Capital Territory and New South Wales, the term used is ‘actual bodily harm’: Crimes Act 1900 (ACT) s 24; Crimes Act 1900 (NSW) s 59. In South Australia, the term used is ‘serious harm’: Criminal Law Consolidation Act 1935 (SA) s 23. The term ‘bodily harm’ is used in the Northern Territory, Queensland and Western Australia: Criminal Code 1983 (NT) s 186; Criminal Code 1899 (Qld) s 328; Criminal Code Act Compilation Act 1913 (WA) s 304. In Victoria, the equivalent term is ‘injury’: Crimes Act 1958 (Vic) s 15. Grievous bodily harm 10.78 The next most serious level of injury is commonly known as grievous bodily harm. It is an offence in all jurisdictions to cause this level of injury to another person. Under Victoria’s regime of non-sexual and non-fatal assaults, the term used is ‘serious injury’ which is defined under s 15 of the Crimes Act 1958 (Vic) as a combination of injuries which are defined under s 15 as including ‘unconsciousness, hysteria, pain and any substantial impairment of bodily function’. While the term ‘grievous harm’ is used in the

Northern Territory, the term ‘grievous bodily harm’ is used in the other jurisdictions: Crimes Act 1900 (ACT) ss 19, 20, 25; Crimes Act 1900 (NSW) ss 35, 54; Criminal Code 1983 (NT) ss 177, 181; Criminal Code 1899 (Qld) ss 317, 320; Criminal Law Consolidation Act 1935 (SA) ss 21, 23; Criminal Code 1924 (Tas) ss 170, 172; Criminal Code Act Compilation Act 1913 (WA) ss 294, 297. It is important to note that for all of the above offences, it is not a defence that the victim is married or is in another type of relationship with the accused. As a general rule, the maximum penalty for the offences increases as the level of injury becomes more serious. Stalking 10.79 Stalking is also an offence in all jurisdictions. The precise elements of the offence vary across the jurisdictions. In general, the offence is constituted where the accused engages in conduct (such as following the victim) that causes apprehension or fear in the victim for his or her personal safety. The accused must intend to cause harm to the victim or arouse fear or apprehension in the victim for his or her safety: Crimes Act 1900 (ACT) s 35; Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 8 and 13; Criminal Code 1983 (NT) s 189; Criminal Code 1899 (Qld) ss 359A and 359B; Criminal Consolidation Act 1935 (SA) s 19AA; Criminal Code 1924 (Tas) s 192; Personal Safety Intervention Orders Act 2010 (Vic) s 10; Criminal Code Act Compilation Act 1913 (WA) s 338D. [page 736]

Homicide 10.80 The most serious offence classification is homicide, the unlawful killing of a person. Homicide is subdivided into the categories of murder and manslaughter. The main distinction between the classification of these offences is that murder requires a subjective intention or recklessness on the part of the accused to kill or seriously injure the victim. Murder 10.81 There are two main forms of murder. Intentional murder is where a person causes the death of another with the intention to kill or cause grievous bodily harm. This is the paradigm instance of murder. Reckless murder is where a person causes the death of another while being reckless as to killing or causing grievous bodily harm. Manslaughter 10.82 With regard to manslaughter, the law draws a distinction between voluntary and involuntary manslaughter. Involuntary manslaughter involves causing the death of another without lawful excuse and under circumstances which do not amount to any form of murder or voluntary manslaughter. There are two headings of this type of manslaughter: criminal negligence and voluntary manslaughter. 10.83 Criminal negligence The first is manslaughter by criminal negligence. It is an offence to cause the death of a person by an act (or in some cases an omission) which is done with a high degree of carelessness. In some

jurisdictions, this offence has a statutory foundation: Criminal Code Act 1983 (NT) s 160; Criminal Code Act 1899 (Qld) s 303; Criminal Code Act 1924 (Tas) ss 156(2)(b) and 159; Criminal Code Act Compilation Act 1913 (WA) s 280. The other form of involuntary manslaughter is killing by an unlawful and dangerous act. At common law, a person will be guilty of this offence where he or she performs an unlawful act that is dangerous and in doing so causes the death of another person. This offence has a statutory foundation in the Northern Territory, Queensland, Tasmania and Western Australia: Criminal Code Act 1983 (NT) s 31 (this offence is somewhat narrower than at common law); Criminal Code Act 1899 (Qld) s 291; Criminal Code Act 1924 (Tas) ss 156(2)(c) and 159(1); Criminal Code Act Compilation Act 1913 (WA) s 268. 10.84 Voluntary manslaughter Voluntary manslaughter involves the very same elements as the crime of murder but is reduced to manslaughter due to mitigating circumstances. The main mitigating circumstance is the partial defence of provocation. If this practical defence is accepted by the jury, it reduces the crime from murder to manslaughter and results in a significantly reduced penalty. Penalties for manslaughter are in the order of 8–12 years less than for murder. It is supposedly a concession to human frailty — the inability to control anger. It occurs where the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought by acts or words of the deceased amounting in law to provocation. To amount to provocation, the acts or words must be done or said by the

deceased in the presence of the killer. They must also have caused [page 737] in the killer a sudden and temporary loss of self-control rendering the killer so subject to passion as to make him or her, for the moment, not the master of his or her mind. Finally, the acts or words must be of such character as might cause an ordinary person to lose his or her self-control to such extent as to act as the killer has acted. A paradigm situation in which provocation is raised is where a male kills his partner or ex-partner in response to taunts regarding his lack of sexual prowess: see, for example, Moffa v R (1977) 13 ALR 225. The defence of provocation 10.85 The defence of provocation has been and is still highly controversial. Three states have abolished the defence completely. Tasmania was the first state to abolish the defence of provocation. The case of R v Ramage [2004] VSC 508 was instrumental in the Victorian Law Reform Commission producing a report, Defences to Homicide: Final Report (2004). In this case, the offender killed his estranged wife after she ended their relationship and told him that she had found a new partner. The offender successfully claimed provocation. The Victorian Government accepted the report’s recommendations and in November 2005 abolished this defence. Section 3B of the Crimes Act 1958 (Vic) states ‘the rule of law that provocation reduces the crime of murder to

manslaughter is abolished’. Western Australia was the third state to abolish the defence. Other states have reviewed the defence but have maintained it. For instance, in 2008 the Queensland Law Reform Commission conducted a review following three (unreported) homicide trials in 2007: R v Little, R v Moody and R v Sebo. In 1997, the New South Wales Law Reform Commission published two reports on partial defences. The defence of provocation remains: Crimes Act 1900 (NSW) s 23. In evaluating the merit of the defence, it is necessary to understand the factors that are relevant to criminal culpability. There are two variables that determine an agent’s level of culpability: 1.

the harm done; and

2.

the mental state of the actor.

In so far as homicide offences are concerned, the former variable is constant; death is a necessary ingredient of all homicide offences. Thus, the theory must go that provocation links into the latter variable. In terms of the immediate mental state that results in the killing, there is once again no difference. To be guilty of murder or voluntary manslaughter, the actor must have intended to cause death or grievous bodily harm to another person (or be reckless as to causing death or grievous bodily harm). The difference is that people who form the requisite mental state for murder because of a loss of self-control are assumed to be less blameworthy than those who form the same mental

state for other reasons. This assumption constitutes the underpinning of the defence of provocation. The critical issue concerning the soundness of the defence is whether this assumption is valid. In 2014 the Crimes Act 1900 (NSW) was amended: where a person is facing a murder trial, they may rely on the partial defence of provocation: s 23. [page 738]

Problem question Assunta and Benito were married in Tuscany, Italy in 1995 and emigrated to Australia in 2000. When they arrived in Australia they knew little English and settled in Carlton, which at the time was home to a large Italian community. Assunta worked in a trattoria in Lygon Street while Benito worked as a tailor. They were happy for a time, and prospered. They became well respected members of the Italian-Australian community and often helped organise events such as the annual Carlton Fiesta. After the birth of their three children, Carmela, Daniela and Enzo, however, difficulties began to arise and Benito and Assunta started living quite separate lives. Benito started drinking heavily, and his personality changed quite dramatically. Normally a very loving man, he became nasty and aggressive when drunk. Assunta was forced to leave her position as head cook at the trattoria in order to devote her time to looking after the children. Benito spent many evenings after work at the wine bar, leaving Assunta with responsibility for the full-time care of the children. With three young children this was quite a battle. Although Assunta had left behind her family in Tuscany, she had a close network of friends who offered her assistance. In

particular, Franca and Gaetano, who lived next door, were very helpful. When Benito arrived home in a drunken rage, Franca would mind the children, and Gaetano would attempt to diffuse Benito’s rage and prevent him attacking Assunta. Over time Benito’s drunken behaviour became more frequent and violent in nature. These episodes often required Assunta to obtain medical help. On more than one occasion she was injured so badly as to need time in hospital. In addition to punching her face and body, Benito would often throw Assunta against the wall repeatedly. Her medical advice indicates that this has caused fractures of the spine. Many times Assunta made up her mind to leave, and told Benito so. This made him even more morose and violent than usual. Of late Benito has included the children in his threats, although he has never actually hit them. Recently, it all became too much for Assunta, and she took the children and went into hiding with a cousin of Franca’s. This can only be a short-term solution, and the children and Assunta desperately want to be in their own home again. They fear that Benito will find them and do real harm to all of them. Assunta cannot sleep, and urgently needs protection. Assunta seeks advice as to the following: 1.

What protective steps can she take against her violent husband?

2.

What impact may Benito’s assaults have on the distribution of property from the pool of assets?

Suggested answer Introduction While the police will determine whether there is sufficient evidence to press charges of assault against Benito, first and

foremost Assunta should be advised to apply for a family violence intervention order (FVIO) under the Family Violence Protection Act [page 739] 2008 (Vic). This is a protective measure aimed at preventing Benito from assaulting or attempting to assault her in the future. The children can also be named on the order to enable them to be protected from witnessing the violence against their mother. We will then consider the issue of how her husband’s violence will influence the property adjustment of the pool of assets, in conjunction with the issue as to whether Assunta is entitled to damages in tort. 1.

Application for family violence intervention order

(a) Who may make an application Section 45 of the Family Violence Protection Act 2008 (Vic) indicates that applications for FVIOs may be made by a member of the police force or an ‘affected family member’ or any person with the written consent of an adult affected family member; where the affected family member is a child under 18 years, a parent or any other person with the written consent of the parent or with the court’s leave; an affected family member who is a child over 14 years, with the court’s leave; a guardian or any other person, with the court’s leave, if the affected family member has a guardian. While there is no indication on the facts that Benito has ever assaulted Carmela, Daniela or Enzo, we are advised that he has threatened to do so. Under s 77(2), the court making an FVIO may also make an FVIO on its own initiative to protect a child who is a family member of the affected family member or the respondent: s 77(2).

(b) Interim family violence intervention orders Given the injuries that Benito has inflicted, and in light of the fact that Assunta has now left him, taking the children, it is likely that the court will be satisfied that it is necessary to make an interim intervention order so as to ensure Assunta and the family’s safety pending the determination of the complaint: ss 53 and 101. Further, if their complaint alleges assault or threatened assault, s 50(1) provides that Benito may be arrested if the Registrar issues a warrant on the basis that she or he is satisfied that Assunta’s and the children’s personal safety would be seriously threatened if he were not arrested and brought into custody. (c) When a family violence intervention order will be made Section 42 empowers the Magistrates Court and the Children’s Court to make an FVIO in respect of Benito if satisfied, on the balance of probabilities, that he has committed family violence against the affected family member (Assunta) and/or the children, and is likely to do so again. The court may make a final FVIO against Benito under s 74 or s 76 without being so satisfied if Benito and Assunta consent to, or do not oppose, the making of the order: s 78(1). Assunta is likely to succeed on this basis given the history of violence that Benito has inflicted on her. It is likely that the court will also make an FVIO for the protection of the children: s 77. This is based on the argument that, pursuant to s 26(b)(iii), Benito has threatened to assault the children and is likely to do so given his propensity to act violently. According to the facts, the children have become increasingly exposed to their father’s [page 740]

violent behaviour towards their mother, and it is likely that if he is not restrained from approaching them, his threats of assault may be carried out. Section 81 provides examples of restrictions that may be contained in the FVIO. It may: prohibit or restrict approaches by Benito to Assunta and the children; prohibit or restrict access by Benito to their home, a place that they frequent or a specified locality; prohibit Benito from approaching, telephoning or otherwise contacting Assunta and the children, unless in the company of a police officer or specified person; prohibit Benito from causing another person to engage in conduct prohibited by the order; revoke or suspend Benito’s weapons approval or weapons exemption (if applicable); and cancel or suspend Benito’s firearms authority (if applicable). Finally, the duration of the order may be specified by the court or it may operate until it is revoked: s 99(a). 2. Positive contributions — property adjustment The wording of s 79(4) of the FLA excludes questions of matrimonial fault or misconduct from the assessment of contributions to the pool of assets of the parties. However, a number of cases have argued that such misconduct may be relevant when considering the claimant’s contributions as homemaker and parent: Marriage of Ferguson (1978) 4 Fam LR 312; FLC ¶90-500; Marriage of Gates (1976) 1 Fam LR 11,452; [1976] VR 768; Marriage of Weber (1976) FLC ¶90-072. As in Weber, Benito has made little or no homemaker or parent contributions and has spent money on alcohol which should have been devoted to the running of the household, thus making

the homemaker and parent contributions of Assunta of a higher level. The previous position in relation to family violence, in Marriage of Sheedy (1979) 5 Fam LR 24; FLC ¶90-719, was that the rule in Marriage of Soblusky (1976) 2 Fam LR 699; FLC ¶90-124 applied, which meant that behaviour of the parties as against each other is not per se relevant. It was held that ‘to allege that as a result of maltreatment the wife’s job was made all the more difficult is in effect to revive in a modified form old claims for compensation for matrimonial misconduct’. More recently, however, the court has been prepared to regard survivors of violence in the family as having made extra contributions. In Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC ¶92-652, it was held that because of the husband’s conduct, the contributions of the wife as homemaker were increased and the husband’s diminished. This position was approved in Marriage of Marando (1997) 21 Fam LR 841; FLC ¶92-754. In Marriage of Kennon (1997) 22 Fam LR 1; FLC ¶92-757, there was a cross-vested claim for damages for assault and an argument for domestic violence to be [page 741] considered relevant to the assessment of contributions pursuant to s 79. It was held (at 3) that: … where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage or made the other party’s contributions more arduous than they ought to have been, that is a fact that a trial judge is

entitled to take into account when assessing the parties’ respective contributions within s 79. However, conscious of the ‘floodgates’ argument, the court held that it would be necessary that the conduct occurred during the course of the marriage and was of sufficient duration to have had a discernible impact on the contributions of the other party. Despite this limitation, the court makes it clear that violence is not an exclusive category but rather the most obvious example of a wider category. On the basis of Kennon, it is likely that Assunta would be able to argue that Benito subjected her to a course of violent conduct which had a significant adverse impact on his contributions to the marriage. He played little or no positive role in the children’s upbringing, and this lack of support and constant subjection to violent assaults made her contributions both as a parent and homemaker more arduous than they ought to have been. As such, this is a fact that Assunta is entitled to have taken into account when an assessment is made as to the parties’ respective contributions within s 79. Further, Assunta could rely on the judgment of Walters FM in AP v ENP (P and P) (2003) FLC ¶93-161. In this case, the effects of alcohol had a ‘discernable impact upon the contributions of the other party’ (at 78,633). His Honour also gave regard to the amount of money spent by the husband on alcohol and that this behaviour had an adverse economic impact on the welfare of his family (at 78,633). 3. Tortious actions: current position versus position pursuant to cross-vesting legislation The decision of the High Court of Australia in Re Wakim: Ex parte McNally (1999) 24 Fam LR 669 invalidated the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to the extent that it purports to give jurisdiction to exercise state or territory judicial

power to the federal courts created under Ch III of the Commonwealth Constitution, including the Family Court. This means that the Family Court cannot now ordinarily entertain a claim for damages as part of proceedings for an alteration of property interests. This had previously been the case and in Marriage of Marsh (1993) 17 Fam LR 289; (1994) FLC ¶92-443 a wife who was assaulted by her husband brought a cross-vested claim for damages for assault contemporaneously with her application for property orders. It was held that the assault matter could be heard and determined according to the civil burden of proof. The court held that $7,000 awarded to the wife by way of damages for assault be subtracted from the husband’s share of the pool of assets. This was the advantage of having property orders and claims for damages dealt with contemporaneously. Now, Assunta will be required to issue separate proceedings for assault and battery in either the Magistrates or County Courts, depending on the quantum of damages sought.

[page 742]

Further discussion 1.

What ‘excuses’ may be offered to explain violence within the family?

2.

Does society play a part in condoning violence generally?

3.

How effective is the protection offered to victims of violence within the family?

4.

Should there be more education offered through the media on the prevalence and effect of violence within the family?

5.

Has the Family Court sufficiently addressed the issue of violence within the family in matters before it?

6.

Are the penalties such to make a change in the behaviour of a perpetrator?

_______________________ 1 2

3 4

5

6 7

8 9

See (viewed 10 May 2017). See (viewed 10 May 2017). For more information, see (viewed 10 May 2017). For more information, see (viewed 10 May 2017). State of Victoria, Royal Commission into Family Violence: Summary and Recommendations, Parl Paper No 132 (2014–16), March 2016 (Statement of Cumberland, 8 July 2015), p 5. See E G Krug et al (eds), World Report on Violence and Health, World Health Organization, Geneva, 2002. See also J Shepherd (King James IV Professor of Surgery, Royal College of Surgeons of Edinburgh and Ireland), ‘Preventing Violence — Caring for Victims’ (2007) 5(2) The Surgeon 114. For more details see (viewed 10 May 2017). Prevention of Child Abuse and Neglect — Making the Links between Human Rights and Public Health, Submission from World Health Organization to the Committee on the Rights of the Child

10 11 12 13

14

15

16

17

18

19 20

21

for its Day of General Discussion — 28 September 2001. See (viewed 10 May 2017). See (viewed 10 May 2017). See (viewed 10 May 2017). The summary can be found at: (viewed 10 May 2017). The full report can be seen at (viewed 10 May 2017). See (viewed 10 May 2017). See ‘Transforming the family law system’, (viewed 10 May 2017). For full details refer to (viewed 10 May 2017). See (viewed 10 May 2017). World Report on Violence and Health (WHO), Geneva, 2002, p 89. Family Violence Professional Education Taskforce, Family Violence: Everybody’s Business, Somebody’s Life, Federation Press, Sydney, 1991, p 96; M James, ‘Abuse and Neglect of Older People’ (1994) 37 Family Matters 94. National Committee on Violence Against Women Position Paper, AGPS, Canberra, 1992, p 3; Family Violence Professional

22 23

24 25

26 27 28 29

30 31 32 33 34 35

Education Taskforce, note 20 above, pp 60–1. K Healey (ed), Issues in Society: Violence Within the Family, Spinney Press, Balmain, 1998, p 3. H McGregor, Domestic Violence: Alcohol and Other Distractions — A Grassroots Perspective, presented to Alcohol and Crime Conference, Perth, 4 April 1990, p 33, cited in Victorian Community Education Task Force on Family Violence, Occasional Papers on Family Violence, 1990. R J Gelles and D R Loseke (eds), Current Controversies on Family Violence, Sage, Newbury Park, CA, 1993, pp 12–16. G Dear, ‘Blaming the Victim: Domestic Violence and the Codependency Model’, International Victimology, selected papers from the 8th International Symposium, Adelaide, 21–26 August 1994. Dear, note 25 above. ibid. Gelles and Loseke, note 24 above. Domestic Violence Task Force, Beyond These Walls: Report of the Queensland Domestic Violence Task Force, Department of Family Services, Brisbane, 1988. Family Violence Professional Education Taskforce, note 20 above, pp 80–4. R E Dobash and R Dobash, Violence Against Wives, New York Free Press, New York, 1979, p 24. New South Wales Child Protection Council, Child Abuse and Domestic Violence, June 1996, p 7. See Domestic Violence Task Force, Beyond These Walls: Report of the Queensland Domestic Violence Task Force, note 29 above. ‘AMA Position Statement on Domestic Violence’ in Healey (ed), Issues in Society: Violence Within the Family, note 22 above, p 5. See (viewed 10 May 2017). For updates on the progress of the proposed bill Family

36

37

38

39 40

41 42

Law Amendment (Family Violence and Other Measures) Bill 2017 (Cth) refer to . See (viewed 10 May 2017). A good resource for readers on the issues, services and legislation relating to family violence across Australia can be found at (viewed 10 May 2017). See generally H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012. See generally H Luntz and D Hambly, Torts: Cases and Commentary, 3rd ed, Butterworths, Sydney, 1992. Australian Law Reform Commission Report No 67 Interim: Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, ch 2. L Finley, ‘A Break In the Silence: Including Women’s Issues in a Torts Course’ (1989) 1 Yale JL & Feminism 41, p 45. See R Graycar and J Morgan, The Hidden Gender of Law, Federation Press, Sydney, 1990, p 286.

Index All references are to paragraphs

A Aboriginal and Torres Strait Islander culture children’s rights, and …. 10.13 customary marriage …. 2.25 parenting orders, and …. 5.44, 5.61 Abuse see Child abuse; Family violence Adoption prohibited marriages …. 4.13 state jurisdiction …. 2.30 Age age of majority …. 2.22 marriageable age …. 3.21–3.24, 4.29 Assisted reproduction technologies generally …. 1.12, 5.18–5.19, 7.17 sperm donors …. 5.19, 6.3, 6.22 surrogacy …. 1.12, 5.22

B Bankruptcy

de facto relationships creditors and trustees, protection for …. 9.34 property division, and …. 8.24–8.26, 8.108, 8.110–8.112 de facto relationships …. 9.34 maintenance agreement …. 8.26 notice, requirement of …. 8.25 property of marriage inadvertently overlooked, where …. 8.26 relation back or ‘claw back’ provisions …. 8.26 unsecured creditors and non-bankrupt spouse, interests of …. 8.25 spousal maintenance, and …. 7.2–7.6, 7.12, 7.18, 7.23, 7.42, 7.73 Best interests of the child determination of …. 5.35 family violence, and …. 10.16, 10.44 parenting orders, and …. 5.30–5.34 Bevan and Bevan …. 8.28 Bigamy …. 4.9–4.11, 4.60 Binding financial agreements before, during or after marriage …. 8.5 drafting of …. 8.6 formalities …. 8.6 geographical connection …. 9.28 overview …. 9.28 prenuptial and postnuptial agreements …. 8.5, 8.6 private arrangement between parties …. 8.2

setting aside …. 8.6, 9.28, 9.29, 9.32 duress …. 8.6, 9.33 spousal maintenance, and …. 8.6 validity …. 9.30–9.31

C Child(ren) abduction of …. 5.69–5.72 abuse of see Child abuse adoption of …. 2.30 age of majority …. 2.22 arrangements for …. 5.8–5.68 key principles …. 5.8 parent, definition of …. 5.17–5.19 post-2006 amendments …. 5.52 where parents agree …. 5.10–5.13 where parents disagree see Parenting orders assisted reproduction technologies …. 1.12, 5.18–5.19, 7.17 sperm donors …. 5.19, 6.3, 6.22 surrogacy …. 1.12, 5.22 best interests of see Best interests of the child child marriage …. 10.5 CRC see Committee on the Rights of the Child (CRC) divorce orders, arrangements in …. 4.57–4.59 infants, meaning of …. 2.22 marriageable age …. 3.21–3.24, 4.29 parental responsibility for

child support see Child Support Scheme Commonwealth powers …. 2.15, 2.21, 2.29, 2.30, 6.2, 6.6 concept of …. 5.23–5.27 generally …. 6.1, 6.3, 6.5 legislative intervention …. 6.5 parens patriae jurisdiction …. 5.68 physical punishment of …. 5.3 protection of …. 5.3, 5.6, 5.7, 5.35–5.37, 5.73 resident child, definition …. 6.14 rights bearers, as …. 5.1 capacity to enforce …. 5.2–5.3 international conventions …. 5.1, 5.4–5.6, 5.69–5.73, 10.13 physical integrity …. 5.3 spousal maintenance, and …. 7.17, 7.31–7.33 child support …. 7.53 parental role, protection of …. 7.46 subsequent relationship, children from …. 7.36 surrogacy arrangements …. 1.12, 5.22 UNCROC see United Nations Convention on the Rights of the Child (UNCROC) violence to, general terms …. 10.7–10.12 Child abuse allegations of …. 5.39 CRC, grave concerns …. 10.13 cycle of, breaking …. 10.19

definition and terminology …. 10.7–10.11, 10.14 emotional abuse …. 10.9 epidemic proportions …. 10.4 Magellan Program …. 5.43 neglect and negligent treatment …. 10.10 parenting orders, and …. 5.39, 5.47 physical abuse, definition …. 10.8 physical punishment, as …. 5.3 protection from …. 5.3, 5.7, 5.36–5.38, 5.73 sexual abuse …. 10.11 statistics …. 10.4, 10.12 Child support Commonwealth Department of Human Services …. 6.2 court’s jurisdiction …. 6.11 history, brief …. 6.6 legislative intervention, impetus for …. 6.5 mischievously claimed …. 6.21 scheme see Child Support Scheme Child Support Agency assessment application for …. 6.22 change of …. 6.13 establishment …. 6.8 guide published by …. 6.13 limited child support agreements …. 6.10 Child Support Scheme

adult child maintenance …. 6.23 agreements …. 6.10 matters relating to …. 6.12 assessment, administrative application for …. 6.2, 6.11 departure order from …. 6.14–6.17, 6.19 formula for …. 6.9 review of, grounds for …. 6.13 child-bearing expenses …. 6.20 child support mischievously claimed …. 6.21 Commonwealth Department of Human Services, responsibility of …. 6.2 families where there is capacity to pay …. 6.4 inheritance taken into account for child support purposes …. 6.19 introduction of …. 6.6 mischievously claimed, child support …. 6.21 non-parent application for child support …. 6.18 principles …. 6.7–6.10 property division, and …. 8.101, 8.117–8.118 resident child, definition …. 6.14 sperm donor as a liable parent …. 6.22 spousal maintenance, and …. 7.53 Citizenship …. 2.19 Cohabitation resumption of …. 4.47–4.52 divorce order, after filing for …. 4.51

likelihood of …. 4.52 separation, during …. 4.45 spousal maintenance, and …. 7.47 Committee on the Rights of the Child (CRC) levels of violence against women and children, grave concerns in relation to …. 10.13 reports to, submission of …. 10.13 Commonwealth Department of Human Services Child Support Scheme see Child Support Scheme Consent, lack of duress …. 4.19–4.22 fraud …. 4.23–4.24 generally …. 4.18 mental incapacity …. 4.27–4.28 mistake …. 4.25–4.26 Consent orders parenting plans …. 5.10, 5.13 property distribution …. 8.2 Constitution generally …. 2.1–2.8 High Court as interpreter of …. 2.11–2.13 incidental powers …. 2.9–2.10 marriage power …. 2.23 children, and …. 2.28–2.29 marriage, meaning of …. 2.24–2.27 matrimonial causes power see also Divorce

definition of …. 2.18–2.19, 4.30–4.31 generally …. 2.14–2.17 spousal maintenance, and …. 7.6 second limb of s 51(xxii) …. 2.20 states’ referral to …. 2.30–2.32 Contempt of court discretion in sentencing …. 8.135 distribution of property, where …. 8.135 Convention for the Protection of Children …. 5.73 Counselling see Marriage counselling Couples see also De facto relationships Australia, in …. 9.2 Criminal law family violence …. 10.76–10.79 common assault …. 10.77 grievous bodily harm …. 10.78 homicide …. 10.80 manslaughter …. 10.82–10.84 murder …. 10.81 provocation, defence of …. 10.85 stalking …. 10.79 Cross-vesting of jurisdiction …. 2.33–2.38, 10.74 Custody see Parental responsibility

D

De facto relationships application, timing of …. 9.26 assets, diminishing of parties’ …. 9.22 bankruptcy, protection for creditors and trustees in …. 9.34 binding financial agreements …. 9.28 duress and …. 9.33 legal advice or adequacy of terms of agreement …. 9.32 setting aside …. 9.29 validity …. 9.30–9.31 breakdown of …. 2.31, 9.13, 9.16 application, timing of …. 9.26 child of …. 9.14 commencement …. 9.12 common law, importance of …. 9.36 Commonwealth powers, states’ referral to …. 2.31–2.32 court, power of …. 9.24 de facto financial cause …. 9.15, 10.46 de jure relationships, distinction …. 9.3 declaration of …. 9.9–9.12 definition of …. 9.3, 9.8 disclosure, full and frank …. 9.21 duty to end financial relations …. 9.35 common law, importance of …. 9.36 end of relationship …. 9.13, 9.16 evidence of existence …. 9.7–9.8 family violence, injunctions …. 10.46 financial cause, de facto …. 9.15, 10.46

financial provisions …. 9.6 financial relations, duty to end …. 9.35 full and frank disclosure …. 9.21 jurisdictional connection …. 9.17–9.19 just and equitable orders …. 9.20 length of …. 9.14 maintenance …. 9.23 power of the court …. 9.24 right to …. 9.25 timing of application …. 9.26 number of …. 9.2 participating jurisdiction, connection to …. 9.17–9.19 power of court …. 9.24 property distribution …. 2.31, 8.109, 9.1 bankruptcy, and …. 9.34 common law, importance of …. 9.36 legislative schemes relevant to …. 9.4–9.6 statutory and general law rights, relationship between …. 9.36 superannuation …. 9.27 trusts see Trusts Western Australia …. 9.5 same-sex …. 1.6, 2.32, 2.45, 9.2, 9.20 breakdown of …. 2.31 timing of application …. 9.26 separation date …. 9.16 spousal maintenance …. 2.31, 9.23–9.26

subsequent children in …. 7.36 spousal maintenance, and …. 7.35 substantial contributions …. 9.14 superannuation …. 9.27 wastage …. 9.22 De jure relationships …. 3.11 de facto relationships, distinction …. 9.3 Death property division, and …. 8.105 spousal maintenance orders, and …. 7.69–7.70 Discrimination gender identity …. 3.16 same-sex relationships …. 1.6, 2.32, 3.9 Division of property see Property distribution Divorce child support see Child Support Scheme costs to Australian nation …. 4.4 countries where not permissible …. 4.5 generally …. 4.1–4.5, 4.30–4.31 grounds for Commonwealth power …. 2.16 Family Law Act, under …. 2.44, 4.3, 4.32–4.36 jurisdictional requirements …. 2.19, 4.31 Malta …. 4.5 matrimonial causes

definition of …. 2.18–2.19, 4.30–4.31 generally …. 2.14–2.17 property distribution, and …. 8.13–8.14 spousal maintenance, and …. 7.6 short duration marriages …. 4.53–4.54 spousal maintenance see Spousal maintenance Divorce order appeal of …. 4.62 requirements for …. 4.37–4.56 children, arrangements for …. 4.57–4.59 communication, necessity for …. 4.37 marriage counselling …. 4.53–4.54 separation see Separation ‘special circumstances’ …. 4.55 rescission of …. 4.61 when order takes effect …. 4.60 Domestic violence see Family violence Duration of marriage divorce order requirements …. 4.53–4.54 property distribution, and …. 8.8, 8.54–8.55 spousal maintenance, and …. 7.44 Duress …. 4.19–4.22 binding financial agreements …. 9.33

E Earning capacity

property division, and …. 8.81, 8.85 spousal maintenance, and …. 7.43, 7.45–7.60 Elder abuse …. 10.2, 10.17

F Family adoptive parent families …. 1.11 blended …. 1.11 constitutional rights …. 1.1 definition of …. 1.10–1.12 broader …. 1.1, 1.11 inclusive …. 1.13 functions of …. 1.13–1.17 international human rights instruments …. 1.1, 1.3 legislative rights …. 1.1 modern family structures …. 1.6 same-sex couples, formed by …. 1.6 Family Court of Australia background to …. 2.43 family violence cross-vesting of jurisdiction …. 2.36–2.38, 10.74 violence, definition of …. 10.14 jurisdiction of …. 2.33–2.40 parens patriae jurisdiction …. 5.68 property distribution duty to end financial relations between parties …. 8.122,

9.35 extended powers in relation to third parties …. 8.143–8.146 general powers of …. 8.10, 8.120–8.121 jurisdiction …. 8.27 scope of powers …. 8.23 transactions likely to defeat claims, where …. 8.123 spousal maintenance orders …. 7.7, 7.18 Family Court of Western Australia …. 2.51 Family law constitutional issues see Constitution international conventions, and …. 1.1–1.6 jurisdiction see Jurisdiction powers, state’s referral to the Commonwealth …. 2.30 Family Law Act 1975 amendments to …. 2.45, 4.2 divorce …. 2.16 family violence …. 10.14–10.16, 10.41–10.42 parenting orders …. 5.4–5.6 de facto relationships …. 9.3–9.6, 9.27 grandparents …. 5.20 guiding principles …. 5.28–5.31 international convention …. 5.73 parental responsibility, concept of …. 5.23 post-2006 amendments …. 5.52 property distribution …. 8.5, 8.79 bankruptcy …. 8.24

binding financial agreements …. 8.5 just and equitable orders …. 8.102–8.104 third parties, interests of …. 8.143 same-sex relationships …. 2.32, 3.9–3.10 spousal maintenance …. 7.3–7.6, 7.37 states’ referral of powers …. 2.30–2.31 welfare jurisdiction …. 5.68 background to …. 2.42–2.44 changes introduced by …. 2.44 courts exercising jurisdiction under …. 2.39–2.41 Family violence see also Violence children see Child abuse consequences of …. 10.37–10.40 criminal law …. 10.76–10.79 common assault …. 10.77 grievous bodily harm …. 10.78 homicide …. 10.80–10.85 manslaughter …. 10.82–10.84 murder …. 10.81 provocation, defence of …. 10.85 stalking …. 10.79 cross-examination …. 10.56 definition Family Court of Australia …. 10.14 non-gender-specific …. 10.18 elder abuse …. 10.2, 10.17 evidentiary burden …. 10.56

Family Court of Australia Best Practice Principles …. 10.14 cross-vesting of jurisdiction …. 2.36–2.38, 10.74 violence, definition of …. 10.14 Family Law Violence Strategy …. 10.15–10.16 forced marriages …. 10.5 generally …. 10.1 injunctions …. 10.45–10.46 de facto relationships …. 10.46 matrimonial home, exclusive use or occupation of …. 10.50–10.55 applicant, conduct of …. 10.55 convenience, balance of …. 10.51–10.53 respondent, conduct of …. 10.54 personal protection, for …. 10.47–10.48 restraining injunctions in relation to property …. 10.49 legislative responses to …. 10.41–10.69 Family Law Act and state and territory legislation …. 10.44 states and territories …. 10.57–10.59 Australian Capital Territory …. 10.60 New South Wales …. 10.61 Northern Territory …. 10.62 Queensland …. 10.63 South Australia …. 10.64 Tasmania …. 10.65 Victoria …. 10.66

Western Australia …. 10.69 male victims of …. 10.18 parenting orders, and …. 5.40–5.42, 5.63 property division, and …. 8.64–8.68 reasons for …. 10.27–10.33 feminist perspective …. 10.34–10.36 psychological theories …. 10.27–10.28 women as victims …. 10.29–10.33 respectful relationship training …. 10.40 same-sex couples …. 10.17 spousal maintenance, and …. 7.54–7.55, 7.57 statistics …. 10.6 strategies, Family Law Act …. 10.15–10.16 terminology …. 10.17 tort proceedings for …. 10.70–10.75 types of …. 10.20–10.26 financial abuse …. 10.26 physical abuse …. 10.22 psychological abuse …. 10.24 sexual abuse …. 10.23 social abuse …. 10.25 violence children, violence and abuse to see Child abuse women, against …. 10.3, 10.17, 10.19 World Health Organization definition …. 10.2 Family Violence – Improving Legal Frameworks (2010) …. 8.68

Federal Circuit Court establishment of …. 2.46 jurisdiction of …. 2.48–2.50 workload, court’s …. 2.47 Federal Court cross-vesting of jurisdiction …. 2.33–2.38, 10.74 Federal Magistrates Court see Federal Circuit Court Financial agreements property distribution, de facto relationships …. 9.28–9.33 spousal maintenance, and …. 7.59–7.60 Financial contributions assessment of …. 8.49 child, contributions by or on behalf of …. 8.63 family property, to conservation of property …. 8.57, 8.70–8.72 duration of marriage, relevance of …. 8.54–8.55 improvement of property …. 8.58, 8.70–8.72 mortgage payments …. 8.56 no mathematical or scientific formula …. 8.55 overcapitalisation of property …. 8.59–8.60 purchase price …. 8.54 financial resources …. 8.20 generally …. 8.53–8.55 gifts …. 8.75–8.78 loan, whether categorised as …. 8.76 both parties, to …. 8.77

one spouse to the other …. 8.78 indirect contributions …. 8.70–8.72 inheritance …. 8.75–8.76 marital behaviour, and …. 8.64–8.68 no fault system …. 8.68 violence, where …. 8.64–8.68 post-separation contributions …. 8.62 pre-marriage contributions …. 8.61 spousal maintenance, and …. 7.29, 7.43, 7.52 wastage of assets …. 8.69 what amounts to …. 8.53 windfalls …. 8.73–8.74 Financial relations between parties duty to end …. 8.122, 9.35 Financial resources de facto relationships see De facto relationships property distribution, and …. 8.20, 8.86–8.88 Forced marriages …. 10.5 Forum non-conveniens case law …. 4.31 doctrine of …. 2.49 Fraud …. 4.23–4.24

G Gender identity …. 3.12, 3.16, 3.17

Grandparents …. 5.20 Guardianship see Parental responsibility

H Hague Convention on the Civil Aspects of International Child Abduction …. 5.69–5.72 Hermaphrodites see Intersexuality High Court Commonwealth Constitution, as interpreter of …. 2.11–2.13 divorce and matrimonial causes power, interpretation of …. 2.15–2.22 marriage powers, interpretation of …. 2.23–2.29 role of …. 2.11–2.13 Homosexual relationships see Same-sex marriage; Samesex relationships de facto …. 1.6, 2.32, 2.45 marriage …. 2.25–2.27, 3.5–3.10, 3.12 Human rights Australian Capital Territory, in …. 1.8 Australia’s position on, criticisms of …. 1.2 Australian states, in …. 1.7–1.9 family law, impact on …. 1.5–1.9 international human rights instruments, family reflected in …. 1.1, 1.3 Universal Declaration on Human Rights …. 1.3

family unit, importance of …. 1.4–1.5 Victoria, in …. 1.9

I Income spousal maintenance, and …. 7.26–7.27 ability to obtain …. 7.40 contribution to …. 7.43 Infants see also Child(ren) meaning of …. 2.22 Injunctions property distribution, in …. 8.131–8.142 dealings with property, restraint of …. 8.135 party leaving Australia, restraint of …. 8.136 property, in relation to …. 8.133–8.134 property hearing, right to …. 8.137–8.140 applicable conditions …. 8.140 merits of claim, regard to …. 8.139 prejudice to claim if injunction not granted, regard to …. 8.139 requirements for …. 8.138 sole use and occupancy of matrimonial property, for …. 8.132 third parties, and …. 8.141–8.142 International conventions child abduction …. 5.69–5.72

child rights …. 5.1, 5.4–5.6, 5.71, 10.13 family law, impact on …. 1.5–1.6 International Covenant on Civil and Political Rights …. 1.5 International Covenant on Economic, Social and Cultural Rights …. 1.5 International Day of Families …. 1.4 Intersexuality discrimination, provisions protecting persons from …. 3.16 hermaphrodites, legal position of …. 3.13–3.15 human dignity of the intersexed …. 3.12 Ireland same-sex marriage …. 3.7, 3.8

J Jurisdiction adoption …. 2.30 cross-vesting of …. 2.33–2.38, 10.74 de facto relationships …. 9.17–9.19 divorce proceedings …. 2.19, 4.31 Family Law Act, under …. 2.39–2.41 Federal Circuit Court …. 2.48 overseas marriages …. 4.16 parens patriae jurisdiction …. 5.68 property distribution …. 8.27

L Lottery winnings property distribution, in …. 8.73–8.74

M Magellan Program …. 5.43 Marriage Australian experience …. 3.13–3.17 benefits of …. 3.1–3.6 bigamy …. 4.9–4.11, 4.60 breakdown of …. 4.2–4.4, 4.32 see also Separation definition of …. 2.24–2.27, 3.11, 9.3 Australian experience …. 3.13–3.17 common law …. 3.8, 3.9, 3.11 ‘of one man and one woman’ …. 3.12 ‘to the exclusion of all others’ …. 3.18 ‘voluntarily entered into for life’ …. 3.19–3.20 de jure relationships …. 3.11, 9.3 dissolution of …. 2.16, 4.30 see also Divorce duration of divorce order requirements …. 4.53–4.54 property distribution, and …. 8.8, 8.54–8.55 spousal maintenance, and …. 7.44 forced marriage …. 3.29, 10.5 formalities of …. 3.25–3.26 non-compliance with …. 3.27, 4.14–4.17

validity despite …. 3.28 hermaphrodites, legal position of …. 3.13–3.15 marriageable age …. 3.21–3.24, 4.29 meaning of …. 2.24–2.27 monogamous nature of …. 3.18–3.20 nullity see Void marriage polygamy …. 3.18, 4.17 same-sex see Same-sex marriage sex-affirmation surgery in the context of …. 3.15–3.17 sham marriage …. 3.29 ‘to the exclusion of all others’ …. 3.18 transsexual, validity of marriage of …. 3.12, 3.17 ‘voluntarily entered into for life’ …. 3.19–3.20 Marriage counselling Family Court services …. 2.43–2.44 parenting orders, and …. 5.14 pre-marriage …. 3.33 short duration marriages, for …. 4.53–4.54 Marriage Legislation Amendment Bill 2004 …. 3.9–3.10 Marriage power children, and …. 2.28–2.29 generally …. 2.23 marriage, meaning of …. 2.24–2.27 Matrimonial causes see also Divorce definition of …. 2.18–2.19, 4.30–4.31 generally …. 2.14–2.17

property distribution, and …. 8.13 spousal maintenance, and …. 7.6 Matrimonial property see Property distribution Mental capacity consent, and …. 4.27–4.28 ‘Gillick competent’ test …. 5.26 parenting orders, and …. 5.56–5.58 spousal maintenance, and …. 7.25, 7.30 Minors see Child(ren) Miscarriage of justice property distribution, in …. 8.114 Mistake …. 4.25–4.26

N Nullity decree see Void marriage

P Parens patriae jurisdiction …. 5.68 Parent(s) adoptive parent families …. 1.11 assisted reproduction technologies …. 1.12, 5.18–5.19, 7.17 sperm donors …. 5.19, 6.3, 6.22 surrogacy …. 1.12, 5.22 blended families …. 1.11 definition of …. 5.17–5.19

gay and lesbian …. 1.11 grandparents …. 5.20 non-parent assuming role of …. 6.2 child support, application for …. 6.18 costs incurred by …. 6.14 sperm donors …. 5.19, 6.3, 6.22 surrogacy …. 1.12, 5.22 Parental responsibility child support see Child Support Scheme Commonwealth powers …. 2.15, 2.21, 2.29, 2.30, 6.2, 6.3, 6.6 concept of …. 5.23–5.27 generally …. 6.1, 6.3 parens patriae jurisdiction …. 5.68 Parental rights meaning of …. 2.21 Parenting orders application for eligibility for …. 5.16–5.19 filing of …. 5.15 grandparents …. 5.20 non-parents …. 5.21 post-2006 amendments …. 5.52 surrogacy arrangements …. 5.22 contravention of …. 5.67 Family Court, welfare jurisdiction of …. 5.68 family dispute resolution …. 5.14

principles for …. 5.28–5.31 procedure for making …. 5.32 relevant considerations …. 5.32–5.65 Aboriginal and Torres Strait Islander culture …. 5.44, 5.61 attitude of parents …. 5.62 best interests of child …. 5.31–5.35 capacity of parties …. 5.56–5.58 characteristics of child and parents …. 5.59 child abuse, allegations of …. 5.39, 5.43 conduct of parties …. 5.56–5.58 cost of spending time and communicating with child …. 5.55 family violence …. 5.40–5.42, 5.63 finality, likelihood of …. 5.64 meaningful relationship …. 5.44 parental obligations, fulfilment of …. 5.50 parents’ participation in life of child …. 5.49 protection from harm …. 5.36–5.38 relationship of child with others …. 5.48 religion …. 5.60 relocation …. 5.51 siblings, separation of …. 5.53–5.54 views of the child …. 5.45–5.47 variation of …. 5.66 Parenting plans …. 5.10–5.12 Parkes and Parkes …. 8.6

Pensions spousal maintenance, and …. 7.37, 7.61 Polygamous marriages …. 3.18, 4.17 Private agreements parenting plans …. 5.10–5.12 property distribution …. 8.2 Property contingent interests, exclusion of …. 8.18 definition …. 8.16–8.17 broad interpretation …. 8.16–8.17 existence of, requirement for …. 8.19 future salary as …. 8.18 real and personal, inclusion of …. 8.16–8.17 Property distribution adjournment of proceedings change in circumstances …. 8.102 interim orders …. 8.103 matters which the court may take into account …. 8.104 alteration of interests …. 8.29, 8.32–8.37 four step approach …. 8.34, 8.37 general and specific powers …. 8.33 just and equitable requirement …. 8.34–8.37 limitations on appellate interference …. 8.37 methodology …. 8.34 wide ranging powers …. 8.32, 8.37 ascertainment of parties’ property …. 8.38–8.42

duty of disclosure …. 8.38, 8.41–8.42 cost implications …. 8.42 non-disclosure, where …. 8.42 reporting commission of possible offences …. 8.42 legal and equitable interests …. 8.40 assessment of contributions …. 8.49 asset-by-asset approach …. 8.50–8.51 family violence, and …. 8.64–8.68 family welfare …. 8.49, 8.79–8.84 ‘add backs’, assessment of …. 8.84 ‘big money cases’ …. 8.84 equality is equity …. 8.82–8.83 free to earn salary …. 8.81 homemaker contribution …. 8.79 indirect contributions …. 8.80 special contributions …. 8.84 financial see Financial contributions global approach …. 8.50 just and equitable approach …. 8.49 non-financial contributions …. 8.49 two pool split …. 8.52 binding financial agreements see Binding financial agreements compulsory case assessment conferences …. 8.106 consent orders …. 8.2, 8.4 death of party, and …. 8.105 declaration of interests …. 8.21–8.22

scope of powers …. 8.23 de facto relationships see De facto relationships eligibility for application …. 8.11 Family Court discretionary approach …. 8.10, 8.29–8.31 duty to end financial relations between parties …. 8.122, 9.35 extended powers in relation to third parties …. 8.143–8.146 general powers of …. 8.10, 8.120–8.121 finality principle …. 8.10 superannuation, problems with …. 8.10 future needs of spouses …. 8.10 generally …. 8.1 jurisdiction …. 8.13, 8.27–8.28 scope of powers …. 8.23 transactions likely to defeat claims, powers where …. 8.123 High Court, and …. 8.28 Bevan and Bevan …. 8.28 Stanford and Stanford …. 8.28 income-producing asset, preservation of …. 8.85 injunctions …. 8.131–8.142 dealings with property, restraint of …. 8.135 party leaving Australia, restraint of …. 8.136 property, in relation to …. 8.133–8.134 property hearing, right to …. 8.137–8.140 applicable conditions …. 8.140

merits of claim, regard to …. 8.139 prejudice to claim if injunction not granted, regard to …. 8.139 requirements for …. 8.138 sole use and occupancy of matrimonial property, for …. 8.132 third parties, and …. 8.141–8.142 interim orders early division of assets …. 8.48 legal fees …. 8.47 judicial process advantages of not resorting to …. 8.1 recourse to …. 8.1 justice and equity court’s discretion …. 8.102–8.112 requirement for …. 8.34–8.37, 8.95 legal title to property …. 8.9 maintenance orders and, distinction …. 8.96–8.99 matrimonial cause, where …. 8.13–8.14 other parties that can intervene in proceedings …. 8.107, 8.109 pre-action procedures …. 8.7 private agreements …. 8.2, 8.3 advantages of …. 8.1 procedures …. 8.7 property …. 8.15–8.19 existence of, requirement for …. 8.19

future salary as …. 8.18 statutory definition …. 8.16–8.17 relevant considerations bankruptcy …. 8.24–8.26, 8.108, 8.110–8.112, 9.34 child support …. 8.101, 8.117–8.118 earning capacity, effect of order on …. 8.81, 8.85 financial resources …. 8.20, 8.86–8.88 life expectancy …. 8.86 other orders affecting a party …. 8.100 spousal maintenance …. 7.28, 7.50–7.51 third parties, interests of …. 8.143–8.146 ‘separate property’ regime …. 8.8 setting aside orders …. 8.113–8.119 consent, by …. 8.119 default of applicant …. 8.116 exceptional circumstances concerning welfare of child …. 8.117–8.118 impracticality of carrying out order …. 8.115 miscarriage of justice …. 8.114 spousal contributions …. 8.10 superannuation benefits …. 8.89–8.94 approaches to …. 8.92–8.93 de facto relationships …. 9.27 justice and equity, requirements of …. 8.95 methodology of division …. 8.93 property, as …. 8.94 valuation methods …. 8.91

time limit on proceedings …. 8.12 leave to proceed out of time …. 8.12 transactions likely to defeat claims …. 8.124 anticipated …. 8.126 bona fide purchaser …. 8.129–8.130 disposition …. 8.125 powers where …. 8.123 requirements for successful application …. 8.127 third parties, protection of …. 8.128 valuation of property …. 8.43–8.48 company shares, valuing …. 8.45 dates, importance of …. 8.43 early division of assets, interim orders in respect to …. 8.48 legal fees, interim orders in respect of …. 8.47 liabilities …. 8.46 unsecured liabilities, discretion to ignore …. 8.46 methodology …. 8.44 court’s discretion …. 8.44 expert witnesses, use of …. 8.44

R Remarriage children in …. 7.36 divorce order, after …. 4.60 spousal maintenance, and …. 7.35, 7.71–7.72

Residence divorce requirements …. 2.19 meaning of …. 2.19

S Same-sex marriage Australia, in …. 3.6–3.7 recognition under Australian federal law …. 3.9, 3.12 desire for …. 3.5 Ireland, in …. 3.7, 3.8 Malta, in …. 3.7 opposition and support …. 3.8 overview …. 2.25–2.27 Same-sex relationships Australia, in …. 9.2 census, 2011 …. 9.2 civil unions, recognition of …. 3.9 de facto …. 1.6, 2.32, 2.45 discrimination against, amendment of laws to eliminate …. 3.9 families formed by same-sex couples …. 1.6 marriage see Same-sex marriage property law …. 3.9 registration of …. 3.10 superannuation splitting provisions …. 3.9 Separation

cohabitation, resumption of …. 4.47–4.52 divorce order, after filing for …. 4.51 likelihood of …. 4.52 communication, necessity for …. 4.37 de facto relationships …. 9.16 establishing …. 4.35 generally …. 4.33–4.34 living under one roof …. 4.38–4.41 cohabitation …. 4.45 outside observer …. 4.42–4.44 Siblings parenting orders, and …. 5.53–5.54 Sperm donors …. 5.19, 6.3, 6.22 Spousal maintenance application for order …. 7.7 appropriate level of …. 7.19 cessation of order …. 7.69–7.72 death of beneficiary …. 7.69 death of person liable to make payment …. 7.70 remarriage of beneficiary …. 7.71–7.72 child of the marriage, care and control of …. 7.17 de facto relationships …. 2.31, 9.23–9.26 Family Court application to …. 7.7 powers of …. 7.18 four-step process in making order …. 7.3–7.4

generally …. 7.1 legislation …. 7.8–7.12 amendments to …. 7.5 matrimonial causes …. 7.6 principles relating to …. 7.13 age …. 7.24 bankruptcy …. 7.2–7.6, 7.12, 7.18, 7.23, 7.42, 7.73 children, arrangements for …. 7.17, 7.31–7.34 child support …. 7.53 parental role, protection of …. 7.46 subsequent relationship, children from …. 7.36 cohabitation with another person …. 7.47 duration of marriage …. 7.44 earning capacity …. 7.43, 7.45–7.60 employment, capacity for …. 7.20–7.21, 7.30 family violence …. 7.54–7.55, 7.57 financial agreements, binding terms of …. 7.59–7.60 financial resources …. 7.29, 7.43 health status …. 7.24 income …. 7.25, 7.26–7.27 ability to obtain …. 7.40 contribution to …. 7.43 mental capacity …. 7.25, 7.30 other persons, support of …. 7.31–7.34 pensions, allowances or benefits …. 7.37, 7.61 physical capacity …. 7.25, 7.30 property …. 7.22, 7.25, 7.28

relevant considerations …. 7.22–7.25, 7.54–7.58 standard of living …. 7.39 subsequent relationships children in …. 7.36 de facto partners …. 7.35 remarriage …. 7.71–7.72 superannuation …. 7.38–7.43 threshold test …. 7.14–7.16 property division orders and, distinction …. 8.96–8.99 types of orders …. 7.62–7.65 interim maintenance …. 7.68 lump sum …. 7.62 urgent maintenance …. 7.66–7.67 variation of orders …. 7.73–7.74 Stanford and Stanford …. 8.28 States and territories adoption …. 2.30 de facto property distribution schemes …. 9.4–9.6 family violence legislation …. 10.41–10.69 Australian Capital Territory …. 10.60 New South Wales …. 10.61 Northern Territory …. 10.62 Queensland …. 10.63 South Australia …. 10.64 Tasmania …. 10.65 Victoria …. 10.66

Western Australia …. 10.69 statistics …. 10.6 referral of powers to Commonwealth …. 2.30–2.32 Superannuation benefits property distribution …. 8.89–8.94 approaches to …. 8.92–8.93 de facto relationships …. 9.27 justice and equity, requirements of …. 8.95 methodology of division …. 8.93 property, as …. 8.94 valuation methods …. 8.91 spousal maintenance, and …. 7.38 Surrogacy …. 1.12, 5.22

T Third parties expenses …. 8.146 powers of Family Court in relation to …. 8.143–8.146 court discretion …. 8.145 just and equitable principles …. 8.145–8.146 orders and injunctions …. 8.144–8.145 limitations on …. 8.144–8.145 trustees …. 8.146 service of documents on …. 8.146 Transsexualism …. 3.12, 3.16–3.17 Trusts

constructive trusts …. 9.47–9.53 actual intention …. 9.50 implied intention …. 9.51 imputed intention …. 9.52 orthodox trusts …. 9.53 unconscionable conduct, and …. 9.54–9.56 express trusts …. 9.39 generally …. 9.37–9.38 resulting or implied trusts …. 9.40–9.46 conditional gift …. 9.44 contribution to …. 9.41 improper motives …. 9.45–9.46 intention to make a gift …. 9.42–9.43

U United Nations Convention on the Rights of the Child (UNCROC) …. 1.5 Australia, signatory to …. 10.13 contravention of …. 6.4 Universal Declaration of Human Rights see Human rights

V Violence see also Family violence definition, World Health Organization …. 10.2 statistics …. 10.6 women, against …. 10.3

Void marriage generally …. 4.6 grounds for …. 3.13–3.14, 4.7–4.8 bigamy …. 4.9–4.11 consent, lack of …. 4.18–4.28 duress …. 4.19–4.22 fraud …. 4.23–4.24 mental incapacity …. 4.27–4.28 mistake …. 4.25–4.26 essential formalities, lack of …. 4.14–4.17 overseas marriages …. 4.16 polygamous marriage …. 4.17 unauthorised celebrant …. 4.15 identity, mistaken …. 3.13 marriageable age, lack of …. 4.29 prohibited relationships …. 4.12–4.13

W Women forced marriages …. 10.5 violence against see also Family violence definition …. 10.3 high levels of, grave concerns of CRC in relation to …. 10.13 World Health Organization family violence, definition of …. 10.2

violence against women, definition …. 10.3

Related LexisNexis Titles Young, Sifris, Carroll, Monagan, Family Law in Australia, 9th ed, 2016 Young, Kenny & Monahan (eds), Children and the Law in Australia, 2nd ed, 2017 Serisier & Altobelli, Practising Family Law, 3rd ed, 2012 Holmes, LexisNexis Case Summaries: Family Law, 6th ed, 2016