Family law [Fifth edition.] 9780455241319, 0455241317

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Nutshell Family Law

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Nutshell Family Law GEOFFREY MONAHAN BA (Macq), LLB (Syd), LLM (NSW), GCHE (UTS) A Judge of the Federal Circuit Court of Australia

FIFTH EDITION

LAWBOOK CO. 2019

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 First edition................................... 1999 Second edition.............................. 2003 Third edition................................. 2008 Fourth edition............................... 2014

ISBN: 9780455241319 © 2019 Thomson Legal & Regulatory Limited ABN 64 058 914 668 trading as Lawbook Co. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Product Developer: Elizabeth Gandy Edited and Typeset by Newgen KnowledgeWorks Pvt. Ltd., Chennai, India Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info see www. pefc.org

Preface This book has been written to provide the reader with a basic understanding of family law and to supplement the leading texts. It also balances both a theoretical and vocational application of family law in Australia. This book covers all topics usually dealt with in family law studies. Prior to my appointment as a judge, I was the lecturer and examiner in Family Law at the University of Technology Sydney (1993–​ 2008) and at the University of Sydney (Law Extension Committee) (1998–​2008). There have been a number of changes in family law since the fourth edition of this book was published in 2014. In particular, in late 2017 changes were made to the Marriage Act 1961 that enabled same-​gender couples to marry and recognised same-​gender marriages that were entered into overseas: see Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). A number of other changes were also introduced into the Family Law Act 1975 on 1 September 2018: see Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth). These changes have been incorporated into this edition of this book. Further changes will commence on 11 March 2019: see Family Law Amendment (Family Violence and Cross-Examination of Parties) Act 2018 (Cth). These further changes will provide additional protections for, and place restrictions on the cross-examination of, family violence victims. In addition, at the time of publication there is one further bill were being debated in the Federal Parliament. The Federal Circuit and Family Court of Australia Bill 2018, if enacted, will merge the administrative structure of the Family Court of Australia and the Federal Circuit Court of Australia. It will become known as the Federal Circuit and Family Court of Australia. This court will be composed of Division 1 (a continuation of the Family Court) and Division 2 (a continuation of the Federal Circuit Court) and will provide additional protections for, and place restrictions on, the cross-​examination of family

Nutshell: Family Law

violence victims. In addition to these proposed statutory reforms, I note that the Australian Law Reform Commission is presently conducting a review of the family law system. The terms of reference and submissions can be found on the website for the Australian Law Reform Commission. The Commission’s final report is expected to be released by 31 March 2019. I wish you well with your studies in family law. JUDGE GEOFFREY MONAHAN January 2019

vi

Abbreviations Statutes CSAA

Child Support (Assessment) Act 1989 (Cth)

CS(RC)A

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

FLA

Family Law Act 1975 (Cth)

FLAA

Family Law Amendment Act 2000 (Cth)

FLRA

Family Law Reform Act 1995 (Cth)

FCCA

Federal Circuit Court of Australia Act 1999 (Cth)

MA

Marriage Act 1961 (Cth)

MCA

Matrimonial Causes Act 1959 (Cth)

Regulations CS(RC)R

Child Support (Registration and Collection) Regulations

FLR

Family Law Rules

FCCR

Federal Circuit Court Rules

States and Territories (NSW)

New South Wales

(Qld)

Queensland

(SA)

South Australia

(Tas)

Tasmania

(Vic)

Victoria

(WA)

Western Australia

(ACT)

Australian Capital Territory

(NT)

Northern Territory

Nutshell: Family Law

Australian cases (HC)

High Court of Australia

(FC)

Family Court of Australia

(Fed Ct)

Federal Court of Australia

(FCC)

Federal Circuit Court of Australia

(FMC)

Federal Magistrates Court of Australia (2000–​2012)

(FCWA)

Family Court of Western Australia

(NSW)

Supreme Court of New South Wales

(Qld)

Supreme Court of Queensland

(SA)

Supreme Court of South Australia

(Tas)

Supreme Court of Tasmania

(Vic)

Supreme Court of Victoria

(WA)

Supreme Court of Western Australia

(ACT)

Supreme Court of the Australian Capital Territory

(NT)

Supreme Court of the Northern Territory

New Zealand cases (NZ)

Family Court of New Zealand

United Kingdom cases (PC)

Privy Council

(HL)

House of Lords

(CA)

Court of  Appeal

(PDA)

Probate, Divorce and Admiralty Division

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Table of Contents Preface.................................................................................................... v Abbreviations.........................................................................................vii Table of Cases........................................................................................xv 1 Historical Background and Constitutional Powers........................ 1 Brief history of the development of family law.................................... 1 Commonwealth and State powers in family law.................................. 2 Commonwealth powers............................................................... 2 State and Territory powers.......................................................... 5 State referral of powers over children.......................................... 5 Inherent, associated and accrued jurisdiction............................. 6 Cross-​vesting legislation............................................................. 7 Family Law Act 1975........................................................................... 8 Family Court of Australia............................................................. 8 Federal Circuit Court of Australia................................................ 9 Registrars...................................................................................10 Courts of summary jurisdiction..................................................10 Principle to be applied by the court............................................10 Matrimonial cause......................................................................11 Jurisdiction in other matters (matrimonial causes).................... 12 Jurisdiction in children’s matters................................................ 12 2 Marriage and De Facto Relationships.......................................... 13 Legal requirements of marriage........................................................ 13 Historical requirements............................................................. 13 Solemnisation of marriages in Australia.................................... 14 Solemnisation of marriages overseas....................................... 15 Recognition of foreign marriages.............................................. 16 Legal requirements of a de facto relationship................................... 17 Recognition of de facto relationships........................................ 17 State and Territory legislation.................................................... 18 Family Law Act.......................................................................... 20 3 Annulment of Marriage................................................................. 21 Nullity of marriage............................................................................ 21 Void marriages.................................................................................. 22

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Grounds of nullity...................................................................... 22 Compliance with formalities...................................................... 22 Capacity to marry...................................................................... 23 Consent to marry...................................................................... 24 4 Divorce under the Family Law Act 1975....................................... 29 Irretrievable breakdown of marriage................................................. 29 Meaning of separation.............................................................. 29 Separation under the one roof.................................................. 31 Resumption of cohabitation...................................................... 31 Marriages of less than two years.............................................. 32 When divorce order takes effect................................................ 33 Arrangements for children (s 55A declaration).......................... 33 Divorce proceedings......................................................................... 34 Marriage.................................................................................... 35 Jurisdiction................................................................................ 36 Sole ground............................................................................... 36 Section 55A declaration............................................................ 36 5 Children and the Family Law Act 1975......................................... 37 Parental powers and responsibilities................................................ 37 Common law............................................................................. 37 State and Territory laws............................................................. 38 Part VII of the Family Law Act 1975.......................................... 39 Parentage of children........................................................................ 43 Legitimacy................................................................................. 43 Equality of status legislation..................................................... 44 Establishing the parentage of children...................................... 44 Parentage evidence.................................................................. 45 Parenting orders............................................................................... 46 Types of orders......................................................................... 46 Who may apply?....................................................................... 47 Court’s power............................................................................ 48 Explanation of the order............................................................ 49 Best interests of child paramount.............................................. 49 Welfare orders.................................................................................. 51 Location and recovery of children..................................................... 52 Intrastate and interstate child abduction................................... 53 Location order........................................................................... 53

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Recovery order......................................................................... 54 International child abduction..................................................... 54 Best interests principle..................................................................... 57 The “primary” considerations.................................................... 57 The “additional” considerations................................................. 58 Views of the child...................................................................... 59 Parent–​child relationship........................................................... 60 Extent of parental involvement and fulfilment of parental obligations............................................................... 61 Likely effect of any changes...................................................... 62 Relocation and spending time with a child................................ 63 Racial, cultural and religious issues.......................................... 67 Sexual orientation of parents.................................................... 68 Child abuse............................................................................... 71 Family violence......................................................................... 73 Spending equal time or substantial and significant time with each parent........................................................................ 75 Independent representation of children............................................ 77 Role of the ICL.......................................................................... 78 Criteria for appointing an ICL.................................................... 79 Parenting plans................................................................................. 80 Parenting compliance regime........................................................... 81 6 Child Maintenance........................................................................ 83 Child maintenance under the Family Law Act 1975.......................... 83 Parental duty to maintain children: s 66C................................. 83 Child Support (Assessment) Act 1989: s 66E........................... 85 Who may apply for an order: s 66F........................................... 85 Court’s power to make an order: s 66G.................................... 86 Relevant considerations: ss 66H–​66K...................................... 86 Children aged over 18 years: s 66L.......................................... 88 General powers of the court: s 66P.......................................... 89 Urgent orders: s 66Q................................................................ 90 Specification in orders: s 66R................................................... 90 Modification of order: s 66S...................................................... 90 Cessation of order: ss 66T–​66V............................................... 91 Parenting plans......................................................................... 92 Maintenance of ex-​nuptial children in WA................................. 92 Impact of the Child Support (Registration and Collection) Act 1988.................................................................................... 92

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Child Support Agency: Pt II....................................................... 92 Registration of maintenance liabilities: Pt III............................. 93 Collection of maintenance liabilities: Pt IV................................ 94 Payment and recovery of child support debts: Pt V.................. 94 Departure prohibition orders: Pt VA.......................................... 96 Child support under the Child Support (Assessment) Act 1989................................................................................ 97 Eligible children: Pt 3................................................................ 97 Applications for support: Pt 4.................................................... 98 Administrative assessment of child support: Pt 5..................... 99 Child support agreements: Pt 6...............................................102 Departure from administrative assessment: Pt 6A...................103 Jurisdiction of the AAT.............................................................104 Jurisdiction of courts: Pt 7........................................................107 7 Spousal Maintenance..................................................................109 Spousal maintenance under the Family Law Act 1975....................109 Spousal liability: ss 72 (married couples) and 90SF (de facto couples)................................................................. 110 Court’s power to enforce liability: ss 74 (married couples) and 90SE (de facto couples)................................................112 Relevant considerations: ss 75 (married couples) and 90SF (de facto couples)................................................113 Urgent orders: ss 77 (married couples) and 90SG (de facto couples).................................................................114 Specification in orders: ss 77A (married couples) and 90SH (de facto couples).......................................................115 General powers of the court: ss 80 (married couples) and 90SS (de facto couples)................................................115 Cessation of a maintenance liability: ss 82 (married couples) and 90SJ (de facto couples)..................................117 Modification of order: ss 83 (married couples) and 90SI (de facto couples).................................................................118 Financial agreements between married couples.....................119 Financial agreements between de facto couples.................... 121 Child-​bearing expenses under Family Law Act 1975...................... 121 Liability of father if not married to mother: s 67B.................... 121 Who may institute proceedings: s 67F.................................... 122 Court’s power: ss 67D and 67E.............................................. 122 Relevant considerations: ss 67C and 67G.............................. 122

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Maintenance rights under State and Territory law.......................... 123 Jurisdictional requirements..................................................... 124 No general right to maintenance............................................. 126 Court’s power to order maintenance....................................... 126 Relevant considerations for making a maintenance order...... 127 Duration and cessation of a maintenance order..................... 129 Modification of a maintenance order....................................... 130 8 Property Disputes under the Family Law Act 1975.................... 131 Declarations: s 78 (and s 90SL)..................................................... 132 Alteration of property interests: s 79 (and s 90SM)........................ 133 Court’s power: ss 79(1), 80 (and ss 90SM(1), 90SS) and 106A............................................................................. 133 Just and equitable consideration: s 79(2) (and s 90SM(3)).......................................................................... 135 Property.................................................................................. 136 General approach to be taken by the court............................. 138 Superannuation....................................................................... 140 Statutory considerations: ss 79(4) and 81 (ss 90SM(4) and 90ST)............................................................................... 144 Past contribution factors................................................................. 145 Financial contributions: ss 79(4)(a) and 90SM(4)(a)............... 145 Gifts, compensation and windfalls........................................... 146 Non-​financial contributions: ss 79(4)(b) and 90SM(4)(b)........ 147 Global or asset-​by-​asset approach......................................... 147 Homemaker and parent contributions: ss 79(4)(c) and 90SM(4)(c)................................................................... 149 Special contributions............................................................... 152 Family violence....................................................................... 153 Future needs and the s 75(2) factors: ss 79(4)(d)–​(g) and 90SM(4)(d)–​(g)....................................................................... 154 Earning capacity: ss 79(4)(d) and 90SM(4)(d)........................ 154 Spousal maintenance matters: ss 79(4)(e) and 90SM(4)(e)..... 155 Other orders: ss 79(4)(f) and 90SM(4)(f)................................ 156 Child support: ss 79(4)(g) and 90SM(4)(g)............................. 156 Setting aside orders altering property interests: ss 79A and 90SN................................................................................ 157 Third parties and competing claims................................................ 159 Intervention in proceedings..................................................... 159 Corporate and other entities................................................... 160

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Competing claims................................................................... 161 Part VIIIAA.............................................................................. 162 Transactions to defeat claims: s 106B............................................ 164 Ante-​nuptial and post-​nuptial settlements: s 85A........................... 165 Property agreements...................................................................... 166 Maintenance agreements (1976–​2000): Pt VIII (ss 86–​90)........................................................................... 167 Financial agreements (2000–​): Pt VIIIA (ss 90A–​90Q); Pt VIIIAB (ss 90UA–​90UN).................................................. 168 9 Property Disputes under State and Territory Law...................... 171 General law developments............................................................. 171 State and Territory legislation..........................................................174 Jurisdictional requirements..................................................... 175 Court’s power to adjust property interests............................... 177 Relevant considerations.......................................................... 178 Agreements............................................................................. 180 10 Injunctions and Family Violence Orders................................... 182 Injunctions...................................................................................... 182 Independent injunctions under the Family Law Act 1975: ss 114(1), 114(2A) and 68B(1)................................................ 183 Scope of s 114(1).................................................................... 183 Third parties and s 90AF........................................................ 185 Scope of s 114(2A).................................................................. 187 Scope of s 68B(1)................................................................... 188 Ancillary injunctions under the Family Law Act 1975: ss 114(3) and 68B(2).............................................................................. 189 Scope of s 114(3).................................................................... 189 Scope of s 68B(2)................................................................... 190 Injunctions in domestic relationship matters under State and Territory law...................................................................... 191 Family violence laws....................................................................... 191 State and Territory legislation.................................................. 191 Apprehended violence............................................................ 192 Index.................................................................................................... 195

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Table of Cases A A v A: Relocation Approach (2000) FLC 93-​035 ...................................  5.260 AA Tegel Pty Ltd v Maddern [1985] 2 NSWLR 591 ..............................  2.60 A and B (Infants), Re [1897] 1 Ch 786 ....................................................  5.130 AM (Adult Child Maintenance), Re (2006) FLC 93-​262 ........................  6.90 Abdullah and Abdullah (1981) FLC 91-​003 ..........................................  8.280 Andrews v Parker (1973) Qd R 93 .........................................................  8.300 Aroney and Aroney (1979) FLC 90-​709 ...................................................  8.50 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 ........  8.50, 8.250, 8.260, 8.270, 10.70 Astbury, In the Marriage of (1978) 34 FLR 173 ......................................  7.30 Attorney-​General (Vic) v The Commonwealth (1962) 107 CLR 529 ................................................................................  1.30, 5.50 Attorney-​General for the Commonwealth v Kevin and Jennifer (2003) FLC 93-​127 .....................................................  3.70, 3.150

B B and B (2000) FLC 93-​002 ........................................................................  8.50 B and B: Family Law Reform Act 1995 (1997) FLC 92-​755 ......  5.130, 5.260 B and R and the Separate Representative (1995) FLC 92-​636 .........................................................................................  5.270 B v J (1996) FLC 92-​716 ..............................................................................  6.20 Balfour v Balfour [1919] 2 KB 571 ............................................................  9.20 Batty and Batty (1986) FLC 91-​703 ...........................................................  4.20 Baumgartner v Baumgartner (1987) 164 CLR 137 .................................  9.20 Berthiaume v Dastous [1930] AC 79 ........................................................  2.50 Best and Best (1993) FLC 92-​418 ...............................................................  8.50 Bevan and Bevan (1995) FLC 92-​600 .......................................................  7.40 Bevan and Bevan [2013] FamCAFC 116 .........................................  8.40, 8.60 Biltoft, In the Marriage of (1995) 126 FLR 385 ......................................  8.260 Black v Black (1991) 15 Fam LR 109; DFC 95-​113 ..................................  9.90 Bolton v Bolton (1992) FLC 92-​309 .........................................................  6.330 Bondelmonte v Bondelmonte [2017] HCA 8 ........................................  5.220 Bremner and Bremner (1995) FLC 92-​560 .............................................  8.110 Briginshaw v Bringinshaw (1938) 60 CLR 336 .....................................  5.290 Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 ............................................................................  7.110, 8.300

Nutshell: Family Law

Brown, In the Marriage of (2005) 33 Fam LR 246 ................................  8.110 Browne v Green (1999) FLC 92-​873 .........................................................  8.40 Burton v Churchin & Anor [2013] FamCAFC 180 ...............................  5.200

C C and D, In the Marriage of (1979) FLC 90-​636 ...................................  3.150 Carson v Carson (1999) FLC 92-​835 ........................................................  8.70 Caska v Caska (1998) FLC 92-​826 .................................................  7.70, 7.100 Chancellor & McCoy [2016] FamCAFC 256 ..................................  7.20, 8.30 Chapman and Jansen (1990) FLC 92-​139 ................................................  1.70 Chignola v Chignola (1974) 9 SASR 479 .................................................  5.30 Clarke and Clarke (1986) FLC 91-​778 ......................................................  4.40 Clauson v Clauson (1995) FLC 92-​495 ..........................................  7.80, 8.190 Clifton and Stuart (1991) FLC 92-​194 ....................................................  8.220 Coghlan and Coghlan (2005) FLC 93-​220 ......................................  8.70, 8.80 Cohen v Cohen (1929) 26 CLR 348 ..........................................................  9.20 Coon v Cox (1994) FLC 92-​464 .................................................................  6.60 Cooper v Cooper (1977) FLC 90-​234 ......................................................  5.260 Cormick v Salmon (1984) 156 CLR 170 ...................................................  1.30 Cosgrove v Cosgrove (No 2) (1996) FLC 92-​701 ....................................  6.80 Crapp (No 2), In the Marriage of (1978) 35 FLR 153 .......................................................................  8.50, 8.70, 8.100

D D v McA (1986) 11 Fam LR 214; DFC 95-​030 ..........................................  2.70 David, Re (1997) FLC 92-​776 ..................................................................  5.290 Davies v Davies [1919] 26 CLR 348 .......................................................  8.300 De L v Director General, NSW Department of Community Services (1996) FLC 92-​706 .......................................  5.190 Deniz and Deniz (1977) FLC 90-​252 ......................................................  3.140 Deputy Child Support Registrar v Harrison (1996) FLC 92-​656 .........................................................................................  6.210 DJM v JLM (1998) FLC 92-​816 ................................................................  8.190 Doig v Doig (1999) FLC 92-​869 ................................................................  7.70 Dougherty v Dougherty (1987) 163 CLR 278 .........................................  8.30 Dovey, Re; Ex parte Ross (1979) 141 CLR 526 ...........................  8.250, 10.40 Doyle v Doyle (1992) FLC 92-​286 ...........................................................  5.280

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DP v Commonwealth Central Authority; JLM v Director-​General, NSW Department of Community Services (2001) FLC 93-​081 .......................................  5.190 Duff, In the Marriage of (1977) 29 FLR 46 ..............................................  8.50 Dunne v Brown (1982) FLC 91-​232 ........................................................  3.110 Dwyer v Kaljo (1992) 27 NSWLR 728; 15 Fam LR 645 ..........................  9.90

E Elliot and Wilcox (1996) FLC 92-​687 ......................................................  8.220 Evans v Marmont (1997) 42 NSWLR 70; 21 Fam LR 760 .....................................................................................  9.90

F F, In the Marriage of (1989) FLC 92-​032 ................................................  10.30 F, Re; Ex Parte F (1986) 161 CLR 376 .......................................................  1.30 FM v FM (1997) FLC 92-​738 ......................................................................  6.90 Falk and Falk (1977) FLC 90-​247 ..............................................................  4.20 Farmer and Bramley (2000) FLC 93-​060 .....................................  8.120, 8.150 Fenech and Fenech (1976) FLC 90-​035 ....................................................  4.30 Ferraro, In the Marriage of (1992) 111 FLR 124 ...........................  8.60, 8.150 Figgins and Figgins (2002) FLC 93-​122 .................................................  8.160 Firth v Firth; Boyer (Interveners) (1988) FLC 91-​971 ..........................  5.270 Flett v Brough (1999) DFC 95-​211 .................................................  7.190, 9.50 Freeman and Freeman (1979) FLC 90-​697 ............................................  8.120

G G, In the Marriage of (1984) FLC 91-​582 ...............................................  8.150 G v H (1994) 181 CLR 387 ................................................................  5.70, 5.80 G v P [1977] VR 44 ......................................................................................  5.30 Ganter v Grimshaw (1998) FLC 92-​810 ...................................................  6.20 Gebert, In the Marriage of (1990) 99 FLR 147 .......................................  8.220 Gibb and Gibb (1979) FLC 90-​694 ..........................................................  10.30 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 ......................................................................................  5.20 Good and Good (1982) FLC 91-​249 ..........................................................  8.20 Goode v Goode (2006) FLC 93-​286 ........................................................  5.250

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Gosper and Gosper (1987) FLC 91-​818 ..................................................  8.120 Gould and Gould (1993) FLC 92-​434 .....................................................  8.280 Gronow and Gronow (1979) 144 CLR 513 ............................................  5.230 Gyselman v Gyselman (1992) FLC 92-​279 ............................................  6.320

H Harmer v Pearson (1993) 16 Fam LR 596 ................................................  9.20 Heard v De Laine (1996) FLC 92-​675 .....................................................  5.320 Hiberson v George (1989) 12 Fam LR 723; DFC 95-​064 ..........................................................................................  9.20 Hickey, In the Marriage of (2003) 30 Fam LR 355 ................  8.20, 8.30, 8.60 Hill and Hill (2005) FLC 93-​209 ..............................................................  8.160 Hodak, Re (1993) FLC 92-​421 .................................................................  5.230 Holmes and Holmes (1990) FLC 92-​181 ................................................  8.120 Horman v Horman (1976) FLC 90-​024 ..................................................  5.130 Hosking and Hosking (1995) FLC 92-​579 .............................................  3.140 Howlett v Neilson (2005) 33 Fam LR 402 ...............................................  9.90 Hunt and Hunt [2006] FamCA 167 ........................................................  8.280 Hyde v Hyde and Woodmansee [1866] LR 1 P & D 130 (Eng) ..................................................................................  2.20 Hyman v Hyman [1929] AC 601 ............................................................  8.300

J JEL v DDF (2001) FLC 93-​075 .................................................................  8.160 JG and BG, In the Marriage of (1995) FLC 92-​515 ...............................  5.300 JJT and Ors, Re; Ex Parte Victoria Legal Aid (1998) FLC 92-​812 .........................................................................................  5.320 Jackson and Jackson (1988) FLC 91-​904 ................................................  8.150 Joannou v Joannou (1985) FLC 91-​642 ..................................................  5.220 Johnson v Page (2007) FLC 93-​344 .........................................................  5.290 Jonah v White (2012) FLC 93-​522 .............................................................  2.80

K K, Re (1994) FLC 92-​461 ...........................................................................  5.340 K v B (1994) FLC 92-​478 ..........................................................................  5.260 K v Minister, Youth & Community Services [1982] 1 NSWLR 311 ......  5.30 Kane and Kane [2013] FamCAFC 205 ...................................................  8.160

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Keltie v Keltie and Bradford (2002) FLC 93-​106 ....................................  6.20 Kelvin, Re [2017] FamCAFC 258 ............................................................  5.140 Kennon and Kennon (1997) FLC 92-​757 ....................................  8.160, 8.170 Kessey and Kessey (1994) FLC 92-​495 ...................................................  8.120 Kevin (Validity of Marriage of Transsexual), Re FLC 93-​087 .....................................................................................  3.70 Knight and Knight (1987) FLC 91-​854 ...................................................  8.290 Kowaliw and Kowaliw (1981) FLC 91-​092 .............................................  8.40 Kress v Kress (1976) FLC 90-​126 ............................................................  5.130 Kuklycz v Kuklycz [1972] VR 50 ..............................................................  2.50

L L, In the Marriage of (1983) FLC 91-​353 ................................................  5.280 L, In the Marriage of (1984) FLC 91-​563 ..................................................  2.60 Lanceley and Lanceley (1994) FLC 92-​491 ..............................................  8.20 Lansell v Lansell (1964) 110 CLR 353 ......................................................  1.30 Lee Steere and Lee Steere (1985) FLC 92-​626 ............................  8.110, 8.180

M M v M (1988) 166 CLR 69 .............................................................  5.260, 5.290 M v M [1991] NZFLR 337 ........................................................................  3.150 Macks, Re; Ex parte Saint [2000] HCA 62 ...............................................  1.70 Mallet v Mallet (1984) 156 CLR 695 .......................................................  8.150 Malyszko and Malyszko (1979) FLC 90-​650 ...........................................  4.50 Mark: An Application relating to Parental Responsibilities, Re (2003) FLC 93-​173 .........................................................................  6.20 Mathieson v Mathieson (1977) FLC 90-​230 ..........................................  5.250 Maunder and Maunder (1999) FLC 871 ..................................................  4.70 McCall v Clark [2009] FamCAFC 92 .....................................................  5.200 McGibbon v Marriott (1999) DFC 95-​221 ....................................  7.210, 9.70 McLay and McLay (1996) FLC 92-​667 ...................................................  8.150 Mee v Ferguson (1986) FLC 91-​716 ..........................................................  6.60 Mehta v Mehta [1945] 2 All ER 690 ........................................................  3.150 Mitchell v Mitchell (1995) FLC 92-​601 .....................................................  7.30 Moby and Schulter (2010) FLC 93-​447 ....................................................  2.80 Moor, Re; Ex Parte Soneco (No 77) Pty Ltd and the Trustee in Bankruptcy (1989) FLC 92-​028 .......................................................  8.310 Morrison, In the Marriage of (1995) FLC 92-​573 ..................................  8.220

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MRR v GR (2010) 240 CLR 461; [2010] HCA 4 .....................................  5.310 Mullane v Mullane (1983) 158 CLR 436 ................................................  10.30

N N and H, In the Marriage of (1982) FLC 91-​267 ...................................  5.130 N, In the Marriage of (1977) FLC 90-​208 ...............................................  5.280 Nawaqaliva v Marshall (2006) FLC 93-​296 ...........................................  5.130 Norbis and Norbis (1983) 9 Fam LR 385 ...............................................  8.140 Norbis v Norbis (1986) 161 CLR 513 .....................................................  8.140 Nuell and Nuell (1976) FLC 90-​031 .........................................................  4.50

O O’Dempsey, In the Marriage of (1990) FLC 92-​178 ...............................  6.80 O’Shea and O’Shea (1988) FLC 91-​964 ....................................................  8.70 Onder v Child Support Registrar (No 2) (2011) 45 Fam LR 577 ...................................................................................  6.220 Otway and Otway (1987) FLC 91-​807 ...................................................  3.140

P P v P (1994) FLC 92-​462; (1995) FLC 92-​615 ..........................................  5.140 Park v Park [1953] 2 All ER 1411 ............................................................  3.110 Parker v Parker (1993) 16 Fam LR 863 ..................................................  7.230 Pascoe v Turner [1979] 1 WLR 431 ...........................................................  9.20 Pascot & Pascot [2011] FamCA 945 ........................................................  8.320 Pastrikos and Pastrikos (1980) FLC 90-​897 .............................................  8.60 Patrick: An Application concerning Contact, Re (2002) FLC 93-​096 ...........................................................................................  6.20 Pavey and Pavey (1976) FLC 90-​051 ...............................................  4.20, 4.30 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 .............................................................................  1.60 Philippe and Philippe (1978) FLC 90-​433 ...............................................  4.50 Pierce v Pierce (1999) FLC 92-​844 ..........................................................  8.110 Plows and Plows (1979) FLC 90-​712 ......................................................  5.270 Plut and Plut (1987) FLC 91-​834 .............................................................  8.290 Prince and Prince; General Credits Australia Ltd (Intervener) (1984) FLC 91-​501 .......................................................  8.240 Prior and Prior (2002) FLC 93-​105 .........................................................  8.220 Public Trustee v Gilbert (1991) FLC 92-​211 ...........................................  8.220

xx

Table of Cases

R R v Cook; Ex Parte C (1985) 156 CLR 249 ...............................................  1.30 R v Lambert; Ex parte Plummer (1980) 146 CLR 447 ............................  1.50 R v Millis (1844) 8 ER 844 ..........................................................................  2.50 Raby, In the Marriage of (1976) 27 FLR 412 ..........................................  5.250 Rainbird and Rainbird (1977) FLC 90-​256 ............................................  8.120 Rick and King [2011] FamCAFC 220 .....................................................  3.140 Regent v Millett (1976) 133 CLR 679 .......................................................  9.20 Reid v Reid (1999) FLC 98-​007 ...............................................................  6.310 Ricci and Jones [2011] FamCAFC 222 ......................................................  2.80 Rice v Miller (1993) FLC 92-​415 .............................................................  5.230 Richards v Dove [1974] 1 All ER 888 .....................................................  7.170 Richardson v Richardson (1999) 26 Fam LR 523 ...........................  7.20, 8.30 Ross Jones, Re; Ex Parte Beaumont (1979) FLC 90-​606 .........................  1.60 Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 ....................  1.30

S S, In the Marriage of (1980) FLC 90-​820 ................................................  3.120 Saintclaire & Saintclaire [2015] FamCAFC 245 ....................................  8.320 Salacup and Salacup (1993) FLC 92-​431 ................................................  4.100 Sanders v Sanders (1976) FLC 90-​078 ....................................................  5.270 Savenis v Savenis and Szmeck [1950] SASR 309 ...................................  2.50 Schenck v Schenck (1981) FLC 91-​023 ...................................................  5.150 Schmidt and Schmidt; Mastrone (Intervener) (1980) FLC 90-​873 .........................................................................................  10.70 Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-​293 ..........................................  5.20, 5.140 Seidler v Schallhofer (1982) FLC 91-​273 ................................................  8.300 Selemore v Bull (2005) 34 Fam LR 488 .........................................  7.210, 9.70 Senior v Anderson [2011] FamCAFC 129 (2011) 45 Fam LR 540 ...................................................................................  8.320 Sieling, In the Marriage of (1979) 35 FLR 458 ......................................  10.30 Simpson-​Morgan and Burreket [2009] FamCA 138 .............................  3.150 Slocomb v Hedgewood [2015] FamCAFC 219 ..............................  7.20, 8.30 Soblusky and Soblusky (1976) FLC 90-​124 .............................................  7.50 Spellson and Spellson (1989) FLC 92-​044 .............................................  8.290 Spry and Spry (1977) FLC 90-​271 ...........................................................  5.280 Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; (2012) FLC 93-​518 ......................................................................  8.40, 8.60

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Nutshell: Family Law

Stay and Stay (1997) FLC 92-​751 ..............................................................  8.70 Storie v Storie (1945) 80 CLR 597 ...........................................................  5.230 Stowe and Stowe (1981) FLC 91-​027 ......................................................  10.30 Streets v Streets (1994) FLC 92-​509 ..........................................................  6.60 Szechter v Szechter [1971] 2 WLR 170; 3 All ER 905 ...........................  3.130

T Talbot and Talbot (1979) FLC 90-​696 .....................................................  8.110 Taylor v Taylor (1979) 143 CLR 1 .............................................................  1.60 Teves and Campomayor (1995) FLC 92-​578 .........................................  3.130 Tobin v Executor of Hardy’s Estate (No 2) (1992) DFC 95-​130 ..........................................................................................  2.60 Tobin v Tobin (1999) FLC 92-​848 ..........................................  6.20, 6.60, 6.250 Todd (No 2), In the Marriage of (1976) 25 FLR 260 ......................  4.20, 4.40 Todoric v Todoric (1990) DFC 95-​096 .........................................  7.230, 7.250 Tuck v Tuck (1981) FLC 91-​021 .................................................................  6.70 Tye and Tye (No 1) (1976) FLC 90-​028 .....................................................  4.20

U U v U (2002) FLC 93-​112 ..........................................................................  5.260

V Van Jole v Cole (2000) DFC 95-​228 .........................................................  9.100 Van Rensburg and Paquay (1993) FLC 92-​391 .....................................  5.190 Vance and Vance (1978) FLC 90-​522 ........................................................  8.20

W W, In the Marriage of (1980) FLC 90-​872 ................................................  6.60 W v G (1996) 20 Fam LR 49 ..............................................................  6.20, 9.20 W v T (1998) FLC 92-​808 ...........................................................................  2.30 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 .......................  1.60, 1.70 Wallace v Stanford (1995) 37 NSWLR 1; 19 Fam LR 431 ......................  9.90 Warby and Warby (2002) FLC 93-​091 ......................................................  1.60 Warne and Warne (1982) FLC 91-​247 ......................................................  8.60 White and Tulloch v White (1995) FLC 92-​640 ....................................  8.190

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Table of Cases

Whiteley, In the Marriage of (1992) FLC 92-​304 ..................................  8.110 Whitford and Whitford (1979) FLC 90-​612 ....................................  7.20, 8.30 Willis, Ex Parte (1997) FLC 92-​725 ...........................................................  2.30 Wunderwald and Wunderwald (1992) FLC 92-​315 ..............................  8.70 Youngman v Lawson [1981] 1 NSWLR 439 ............................................  5.20

Z Zappacosta and Zappacosta (1976) FLC 90-​089 ..................................  8.120 ZN v YH and the Child Representative (2002) FLC 93-​101 ...............  5.220 ZP v PS (1994) 181 CLR 639 ....................................................................  5.190 Zyk and Zyk (1995) FLC 92-​644 .............................................................  8.120

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Chapter 1

Historical Background and Constitutional Powers [1.10]  Areas covered: • brief history of the development of family law • Commonwealth and State powers in family law • Family Law Act 1975 (Cth) (FLA).

Brief history of the development of family law [1.20]  Australian family law has its origins in the Christian religion and English law. The term “ecclesiastical law” strictly means “the law of the Church”. Under English law, the ecclesiastical courts exclusively exercised jurisdiction in matrimonial cases until the middle of the 19th century. The matrimonial jurisdiction concerned both the status of marriage and legitimacy of children. The English ecclesiastical courts granted four principal forms of matrimonial relief (or decrees): • decree of nullity of marriage (commonly called an annulment

when a marriage is legally void); • decree of divorce “a mensa et thoro” (commonly called a judi-

cial separation which legally relieved the parties from their obligation to live together); • decree of restitution of conjugal rights (an order requiring a

party who had “left” the marriage to return to the applicant spouse or face excommunication); and

Nutshell: Family Law

• decree for jactitation of marriage (this decree was an order, not

unlike an injunction, preventing a person from falsely declaring himself or herself to be married to the applicant). Ecclesiastical courts do not grant, and have never granted, a decree of dissolution of marriage (divorce). Until the enactment of the Matrimonial Causes Act 1857 (UK) divorce was only possible by obtaining a private Act of the English Parliament (a decree of divorce a vinculo matrimonii). This statute transferred the matrimonial jurisdiction of the ecclesiastical courts to the established civil courts and permitted divorce. Similar legislation was enacted in all the Australian colonies between 1858 (SA) and 1873 (NSW). State matrimonial causes legislation continued to operate after federation and effectively until 1 February 1961. Marriages celebrated in Australia before 1 September 1963 were also subject to compliance with State legislation.

Commonwealth and State powers in family law Commonwealth powers [1.30]  Section 51 of the Australian Constitution provides that: The Parliament shall … 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.

The architects of the Australian Constitution, by their insertion of these powers, clearly desired the enactment of uniform marriage and divorce laws in Australia. During the Constitutional Convention Debates of the 1890s, it was argued that these federal powers were necessary to avoid the experience of the United States’ Constitution which left these powers to the individual States. After nearly 60 years, the Matrimonial Causes Act 1959 (Cth) 2

Chapter 1  Historical Background and Constitutional Powers

(MCA) was enacted and commenced operation from 1 February 1961 and later the Marriage Act 1961 (Cth) commenced operation on 1 September 1963. The States continued to administer family law matters until the establishment of the Family Court in 1976. It is worth noting that these new Acts were the subject of several unsuccessful constitutional challenges: see Attorney-​General (Vic) v Commonwealth (1962) 107 CLR 529; and Lansell v Lansell (1964) 110 CLR 353. Following the election of the Whitlam government in 1972, a Family Law Bill was developed and subsequently passed by a conscience vote of the federal Parliament in May 1975. The title of the Bill was chosen because of the wider range of remedies it was proposed to include, and to be more meaningful to the general public, which it so affected. Apart from the abolition of fault and the establishment of a single ground for divorce, the most dramatic change proposed by the Bill was the establishment of a separate national Family Court of Australia. The MCA was primarily a “divorce” law where any ancillary proceedings to resolve parenting or financial disputes were secondary to the divorce proceedings. The original FLA, on the other hand, went much further and allowed separate proceedings for all forms of ancillary relief, regardless of divorce proceedings. In other words, the constitutional validity of the FLA was based upon an application of the marriage power in addition to the divorce power. The High Court considered the constitutional validity of the FLA in Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495. The High Court agreed that the Commonwealth had the power to legislate in respect of the mutual rights, duties and powers between spouses and the children of their marriage. A minority of the High Court (per Barwick CJ and Gibbs J) were of the opinion that the marriage power is limited by s 51(xxii) of the Australian Constitution and they held that s 51(xxi) does not confer any power to create a separate jurisdiction. The majority (per Stephen, Mason and Jacobs JJ) disagreed. Nevertheless, in arriving at their conclusion, the majority did not uphold the validity of all the provisions of the FLA as a valid exercise of s 51(xxi). In 3

Nutshell: Family Law

other words, some powers in the FLA could only be exercised in accordance with s 51(xxii). This resulted in the Fraser government amending the FLA in 1976 to provide that: • proceedings for maintenance, custody, property and injunc-

tions had generally to be between “the parties to a marriage” (and this was the revised definition of “matrimonial cause”); • “children of the marriage” had to be the biological or adopted

children of both the spouses concerned; and • all property proceedings had to be in relation to concurrent,

pending or completed proceedings for dissolution of marriage or one of the other forms of principal relief available under the FLA. The election of the Hawke government in 1983 resulted in further changes to the FLA. The main thrust of the amendments was, ironically, to extend the operation of the FLA to what it was originally intended to cover. These amendments included: • a widening of the classes of person who could be parties to

proceedings under the FLA; • a widening of the category of children to include “ordinary

members of the household”; and • inter-​spousal property proceedings at any time after marriage.

The changes which widened the category of children were struck down by a series of cases between 1984 and 1986: see In the Marriage of Cormick; Salmon Respondent (1984) 156 CLR 170; R v Cook; Ex parte C (1985) 156 CLR 249; Re F; Ex parte F (1986) 161 CLR 376. Basically, the High Court held that the marriage power cannot cover a child who is not a “child of the marriage”. In other words, a child of a marriage is either a biological or adopted child of both the husband and the wife. This problem was subsequently solved by the referral by the States of their powers over children during 1986–​1990. This resulted in substantial changes being introduced in 1988. The FLA has been further substantially amended over the last two decades including the enactment of the Family Law Reform Act 1995 (Cth), the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and the Family Law Legislation Amendment (Family Violence and Other Measures) Act 4

Chapter 1  Historical Background and Constitutional Powers

2011 (Cth) (new and revised Pt VII), the Family Law Amendment Act 2000 (Cth) (addition of Pt VII Div 13A and Pt VIIIA), Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (addition of Pt VIIIAB), the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) (addition of Pt VIIIB) and the Family Law Amendment Act 2003 (Cth) (addition of Pt VIIIAA).

State and Territory powers [1.40]  The States and Territories retain the power over the following family law areas: • adoption (although the federal government now has substan-

tial control over inter-​country adoption); • artificial conception and surrogacy; • care and protection of children; • family violence (and apprehended violence orders); • property and financial disputes between non-​married cou-

ples who are not covered under federal legislation; • testamentary dispositions and family provision; and • registration of births, deaths and marriages.

State referral of powers over children [1.50]  Pursuant to s 51(xxxvii) of the Australian Constitution, all States (with the exception of WA) “referred” their powers over children not covered by federal legislation between 1986 and 1990. The States specifically excluded the care and protection powers of State welfare authorities. Previous attempts for the FLA to overrule the States’ care and protection (child welfare) jurisdiction were held to be unconstitutional: see R v Lambert; Ex parte Plummer (1980) 146 CLR 447. The FLA now stipulates that courts exercising jurisdiction under that Act may not make an order in respect of a child under State care unless the consent of the relevant child welfare officer is obtained: see FLA s 69ZK(1). 5

Nutshell: Family Law

The referral of powers by the States allowed the FLA to be extended to children from outside marriages. In other words, courts exercising jurisdiction under the FLA could determine all custody, access and child maintenance disputes. In addition, it allowed the Commonwealth to establish the comprehensive child support scheme.

Inherent, associated and accrued jurisdiction [1.60]  Unlike a State Supreme Court, the Family Court and the Federal Circuit Court have no inherent jurisdiction. Nevertheless, the High Court has held that the Family Court (and by implication the Federal Circuit Court) has such inherent powers as will enable it to exercise its statutory functions with justice and efficiency: see Taylor v Taylor (1979) 143 CLR 1. In addition, it is worth noting that s 33 of the FLA allows the court to exercise jurisdiction in respect of matters not otherwise within the expressed jurisdiction but which are associated with the matters where the court has express jurisdiction. This jurisdiction is, however, only conferred “to the extent that the Constitution permits”: see Re Ross Jones; Ex parte Beaumont (1979) FLC 90-​606. It also appears that the Family Court and the Federal Circuit Court have accrued jurisdiction over non-​ severable matters under State law which form part of the issue which is being determined within its jurisdiction. This results from the proposition that the Australian Constitution empowers the Federal Parliament to give authority to decide the whole of a single justiciable controversy of which the federal issue forms an integral part: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. The courts have a discretion whether or not they should exercise their non-​exclusive accrued jurisdiction in any particular case. The existence of this discretion makes a distinction between the courts’ accrued jurisdiction in relation to issues which arise directly between parties and that which relates to issues between one or both parties and a third party. The High Court expressed some support for the use of 6

Chapter 1  Historical Background and Constitutional Powers

accrued jurisdiction by the Family Court (and by implication the Federal Circuit Court) in the decision of Re Wakim; Ex parte McNally (1999) 198 CLR 511 (per McHugh, Gummow, Hayne and Callinan JJ). Despite differing Family Court judgments on the use of accrued jurisdiction over the years, the Full Court has now finally determined that it may exercise accrued jurisdiction: see Warby v Warby (2001) FLC 93-​091 (per Nicholson CJ, Finn and Strickland JJ).

Cross-​vesting legislation [1.70]  Cross-​vesting provides for certain courts to exercise the jurisdiction of other courts. In other words, federal courts are vested with State jurisdiction (in addition to other federal court jurisdiction) and State courts with federal jurisdiction (in addition to other State and Territory jurisdiction) so that no action in a particular court will fail through lack of jurisdiction. Moreover, cross-​vesting means that no court will have to determine the boundaries between federal, State and Territory jurisdiction. Cross-​vesting was obviously a response to the uncertainties that often arose as to the jurisdictional limits of federal courts and the consequent inconvenience and expense suffered by the parties. Nevertheless, the mutual cross-​vesting legislation also ensures that the federal and State courts will keep to their “proper” jurisdictional fields. To achieve this, the mutual cross-​vesting legislation makes comprehensive provision for transfers between courts to ensure that proceedings begun in an appropriate court, or related proceedings commenced in separate courts, are transferred to the appropriate court. Consequently, under the mutual cross-​vesting legislation, any proceeding which involves a single or primary matter falling within the ordinary jurisdiction of one court should not normally be determined in another court simply because one or even both of the parties to the proceedings desire it. In Chapman v Jansen (1990) FLC 92-​139 the Full Court (per Fogarty and Olney JJ; Nicholson CJ dissenting) held that the 7

Nutshell: Family Law

property dispute between a de facto couple should be transferred to the Supreme Court because the parties had no other dispute before the court (they had settled their parenting dispute shortly before the matter came before the court). Following this decision, a Family Court Practice Direction was issued directing that applications which fall outside the jurisdiction of the FLA should not be filed in the Family Court (under the mutual cross-​vesting legislation) unless there is a related proceeding within the court’s jurisdiction. From 1988 until 1999 the cross-​ vesting legislation greatly assisted the Family Court in dealing with matters raised by the breakdown of a non-​married relationship. In Re Wakim; Ex parte McNally (1999) 198 CLR 511 a majority of the High Court decided that Ch III of the Australian Constitution prevents the States from vesting jurisdiction in a federal court: per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting. Consequently, the Family Court is unable to deal with the State-​related matters raised by the breakdown of a non-​married relationship. The remedial legislation passed by the States following the Re Wakim decision (known as the Federal Courts (State Jurisdiction) Act 1999), that designated the “ineffective” cross-​ vested judgments made by federal courts such as the Family Court as relevant State “judgments”, was subsequently held by the High Court to be effective: see Re Macks; Ex parte Saint [2000] HCA 62.

Family Law Act 1975 Family Court of Australia [1.80]  The Family Court is a superior court of record. While it is not part of the Federal Court of Australia, its judges have the same status as Federal or Supreme Court judges. One judge hears proceedings at first instance. Appeals lie to the Full Court of the Family Court comprising three judges (and

8

Chapter 1  Historical Background and Constitutional Powers

in appropriate cases, five judges). Appeals thereafter lie to the High Court with special leave: FLA s 95. It is worth noting that the FLA always anticipated that the States might like to set up their own State Family Courts to house all family law matters, regardless of marriage: FLA s 41 (only WA has done so).

Federal Circuit Court of Australia [1.90] The Federal Circuit Court (formerly the Federal Magistrates Court) is a separate court of record established under Ch III of the Australian Constitution. The Federal Circuit Court was established in part to handle a range of less complicated disputes that are heard in the Family Court and the Federal Court and is intended to provide a faster and cost-​effective option for litigants and to ease the workload of the Family Court and Federal Court judges. Given increasing jurisdiction and workload, changes were enacted in late 2012 and early 2013 to change the name of the court and to redesignate its judicial officers as judges equivalent in status to State District Court or County Court judges (Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) and Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth)). The family law jurisdiction of the Federal Circuit Court is essentially concurrent with that of the Family Court, although certain minor limits are imposed (eg it cannot order a decree of nullity of marriage). Where there are more complex matters filed in the Federal Circuit Court, or where any final hearing is likely to exceed four days, they can be transferred to the Family Court and similarly, less complex matters may be transferred from the Family Court to the Federal Circuit Court. Proceedings cannot be instituted in one court if there is an associated matter pending before the other court. Since 2003 all divorce applications are heard in the Federal Circuit Court. Appeals lie to the Full Court of the Family Court unless the Chief Justice considers that it is appropriate that the appeal be heard by a single judge.

9

Nutshell: Family Law

Registrars [1.100]  Registrars, like Registrars in other courts, deal with procedural matters and consent orders in both the Family Court and the Federal Circuit Court. Registrars in both courts have been delegated a number of specific powers that can be judicially reviewed in appropriate circumstances. They conduct conciliation conferences in financial matters in both courts and Registrars in the Federal Circuit Court hear all uncontested divorce applications.

Courts of summary jurisdiction [1.110] Courts of summary jurisdiction (local/​ Magistrates Courts) also have a minor role in the administration of the FLA, particularly in outer metropolitan and country areas: see s 39(2) and (6). There are some limits, though. These courts can only determine ancillary relief (not principal relief) and, absent consent, ss 46 and 46A of the FLA limit ancillary relief in property matters involving a sum less than $20,000 (or a higher amount if prescribed for a court of summary jurisdiction in the relevant State or Territory): see Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth). Moreover, while s 69J of the FLA gives a magistrate power to determine Pt VII children’s matters, s 69N(2) requires both parties to consent to the matter being determined by a magistrate.

Principle to be applied by the court [1.120]  In exercising its jurisdiction under the FLA, the Family Court (and presumably the Federal Circuit Court although this is not stated) must have regard to several factors: FLA s 43. These factors are: • the need to preserve and protect the institution of marriage as

the union of two people to the exclusion of all others voluntarily entered into for life (FLA s 43(a));

10

Chapter 1  Historical Background and Constitutional Powers

• the need to give the widest possible protection and assistance

to the family as the natural and fundamental group unit in our society, particularly while it is responsible for the care and education of dependent children (FLA s 43(b)); • the need to protect the rights of children and to promote their

welfare (FLA s 43(c)); • the need to ensure safety from family violence (FLA s 43(ca));  and • the means available for assisting parties to a marriage to con-

sider reconciliation or the improvement of their relationship to each other and their children: FLA s 43(d).

Matrimonial cause [1.130]  Given constitutional limitations, a “matrimonial cause” is defined in the FLA: s 4(1). It includes applications for: • divorce and nullity proceedings; • declarations as to the validity of a marriage, divorce or

annulment; • declarations as to the existence of a de facto relationship; • spousal maintenance; • property; • approval

of a “maintenance agreement” (see separate definition);

• injunctive relief; • enforcement of a maintenance agreement; • proceedings in respect of a “financial agreement” (see sepa-

rate definition); and • “any other proceedings” including general enforcement.

There are separate definitions in s 4(1) of the FLA for a “de facto financial cause” and “de facto property settlement or maintenance proceedings”. Children are separately dealt with in Pt VII.

11

Nutshell: Family Law

Jurisdiction in other matters (matrimonial causes) [1.140]  The relevant provision is s 39 of the FLA. Proceedings for divorce under s 39(3) of the FLA must involve either party being (at the date of the filing of the application): • an Australian citizen; or • an Australian “ordinarily resident”; or • domiciled in Australia (note Domicile Act 1982 (Cth)).

For all other proceedings s 39(4) of the FLA requires that either party be (at the date of filing): • an Australian citizen; or • an Australian “ordinarily resident”; or • present in Australia.

Jurisdiction in children’s matters [1.150]  Part VII has various sections which detail who applicants might be in children’s matters. Not surprisingly, this includes the parents, the child or any person concerned with the “care, welfare and development” of the child. Proceedings may proceed providing the child is Australian or is present in Australia: FLA s 69E. The FLA clearly covers “children of a marriage”: see s 60F. The State referral of powers over children has allowed the extension of Pt VII jurisdiction to ex-​nuptial children (except in WA): FLA ss 69ZE–​69ZK. As stated previously, State and Territory care and protection (child welfare) laws are not affected: FLA s 69ZK.

12

Chapter 2

Marriage and De Facto Relationships [2.10]  Areas covered: • legal requirements of marriage • legal requirements of a de facto relationship.

Legal requirements of marriage Historical requirements [2.20]  Marriage is a social practice that the law has been slow, if not reluctant, to regulate. As discussed in Chapter 1, historically the Church, rather than the “state”, exercised jurisdiction over matrimonial affairs (and still does for those who choose a religious ceremony). In the case of Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 (Eng), Wilde JO (later Lord Penzance) held that a marriage may “be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”. Interestingly, the Marriage Act 1961 (Cth) (MA) did not include a formal definition of “marriage” until 2004: as amended by the Marriage Amendment Act 2004 (Cth). This definition limited marriage “to a union of a man and a woman”. The definition was amended again in 2017 to delete the reference to “a man and a woman” and insert the words “2 people”: as amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). Consequently, there are four requirements for a valid marriage —​the “union” must be: • voluntary; • life-​long;

Nutshell: Family Law

• between two people; and • monogamous.

Apart from the formal definition in s 5, these requirements are also identifiable in s 46(1) and (2) of the MA and in s 43(a) of the Family Law Act 1975 (Cth) (FLA): as amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). These changes that commenced in early 2018 finally enabled a couple, regardless of their gender, to marry in Australia. They also retrospectively recognised same-​gender marriages lawfully entered into overseas.

Solemnisation of marriages in Australia [2.30]  The minimum age for marriage in Australia (since 1991) is 18: MA s 11. Many countries still have very young minimum ages for marriage, sometimes even lower than the age of consent. Given that the parties both have to be 18, parental consent is now irrelevant, legally speaking. It is possible, however, for a party under 18 to marry with the approval of a judge or magistrate provided he or she is marrying a “person of marriageable age”: MA s 12(1). The judge or magistrate must be satisfied that: • “the applicant has attained the age of 16 years”; and • “the circumstances of the case are so exceptional and unusual

as to justify the making of the order”: MA s 12(2). In Ex parte Willis (1997) FLC 92-​725, White J held that the word “so” in the phrase “so exceptional and unusual” should be understood as “sufficiently” rather than as “very” or “extremely”. In other words, the threshold test (until a higher court rules otherwise) is really sufficiently exceptional or unusual circumstances. In this particular case, the court noted that the applicant and her fiancé had the support of their respective parents, they were both employed and saving for a deposit for a house and their wedding plans were well advanced.

14

Chapter 2  Marriage and De Facto Relationships

Some other important requirements to note are: • a marriage must be solemnised by, or in the presence of, an author-

ised celebrant (religious and/​or civil) (MA ss 5(1) and 41; also see W v T (1998) FLC 92-​808 where the Full Court (per Fogarty J; Baker J and Lindenmayer JJ agreeing) held that provided the authorised celebrant has consented to attend the ceremony for the purpose of ensuring its validity, mere physical presence, rather than active participation, is sufficient to comply with the MA); • written notice of the intended marriage must be given to the

authorised celebrant at least one month before (and not more than 18 months before) the date of the marriage (MA s 42(1)(a)) (although ministers of religion may require longer notice of the intended marriage (MA s 47(b)(i))); • a marriage may be solemnised on any day, at any time and at

any place (MA s 43); • a marriage must be solemnised before two adult witnesses

(MA s 44); and • where a marriage is solemnised by a civil celebrant, there is a

prescribed form of words to be included in the ceremony (this requirement does not apply to a minister of religion of a recognised denomination): MA ss 45(2) and 46(1). Apart from the notification requirement, the law does not require a formal “engagement”. For traditional church weddings, the parish church notified the community of the intending marriage by publishing the “banns of marriage”. The common law did, however, regard engagements as an enforceable contract. Consequently, an action could lie for breach of contract and damages could be awarded for the breach itself. Such actions were abolished in 1977: MA s 111A.

Solemnisation of marriages overseas [2.40]  Australians can marry overseas under Australian law if they are married by, or in the presence of, a defence force chaplain, provided one of the parties is a member of the defence force: MA

15

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s 71; see also ss 72–​88. Australians can no longer be married under Australian law by an Australian foreign diplomatic or consular officer: see the Marriage Amendment Act 2002 (Cth) which repealed Pt V, Divs 1 and 2 of the MA.

Recognition of foreign marriages [2.50]   At common law, the formalities for the solemnisation of a foreign marriage are determined by the law of the country where the marriage takes place (lex loci celebrationis): see Berthiaume v Dastous [1930] AC 79. If there were no such local rules, then to be valid under the common law the marriage ceremony would have had to have included an exchange of mutual vows before an episcopally ordained priest: see R v Millis (1844) 8 ER 844; Kuklycz v Kuklycz [1972] VR 50. In other words, if the ceremony was documented and witnessed, and included an exchange of vows in the presence of an ostensibly ordained priest, it is reasonable to conclude that the marriage would be recognised as valid according to the common law. The relevant law for the recognition of foreign marriages is found in Pt VA of the MA (and gives effect to Australia’s ratification of the Hague Convention on the Celebration and Recognition of the Validity of Marriages 1978). The relevant statutory provisions reinforce the common law principle that the marriage must be valid under the local law at the time solemnisation took place: MA s 88C(1)(a). Consequently, an overseas marriage will be viewed as formally valid unless it is subject to a stipulated exception: MA s 88D(1). The exceptions will be considered in Chapter 3 and essentially mirror the provisions in s 23B(1)(a)–​(e) of the MA, which apply to marriages conducted in Australia: MA s 88D(2)(a)–​(d). Despite the legislative enactment in Australia of the common law principles, the MA was amended in 2004 to prevent the recognition of same-​gender marriages lawfully solemnised in an overseas country. That provision (s 88EA) was repealed in late 2017 with the effect that same-​gender marriages lawfully entered into overseas are recognised in Australia: see Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). 16

Chapter 2  Marriage and De Facto Relationships

Not surprisingly, a marriage certificate issued by a competent authority in the overseas country will be required in order to prove the foreign marriage in Australia: MA s 88G(1). That authority must be either prescribed by the regulations or competent to issue the original or certified copy of the marriage certificate or suitable evidence: MA s 88G(3). In relation to the issue of complying with local overseas laws, there is an exception where it was impossible to comply because civil authority had broken down due to civil war or invasion: see Savenis v Savenis and Szmeck [1950] SASR 309. If the marriage was solemnised overseas and involves Australian nationals, then our domestic provisions are still relevant. For example, if one of the parties was under age, then the lack of marriageable age will be determined by reference to the provisions contained in Pt II of the MA: see MA ss 10(2)(b), 23B(1)(e) and 88D(2)(b). In other words, if a party was not of marriageable age at the time of the ceremony, the marriage will not be recognised, in Australia, as a valid marriage. In this respect, it is also worth noting that if the parties were not Australian nationals, a lack of marriageable age may still present difficulties: see MA 88D(3) which provides that “where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognised as valid … at any time while either party is under the age of 16 years”.

Legal requirements of a de facto relationship Recognition of de facto relationships [2.60]  While marriage and de facto relationships are similar in most respects, the law does not treat these relationships in exactly the same way. As a de facto relationship is not, strictly speaking, a relationship recognised at common law, the courts have established no legal requirements for the formation of this type of relationship. Nevertheless, by the 1980s, it was accepted that 17

Nutshell: Family Law

a de facto relationship may arise when “a man and a woman cohabit together voluntarily on an intimate, domestic basis”: see In the Marriage of L (1984) FLC 91-​563 (per Asche SJ, Fogarty and Nygh JJ). In AA Tegel Pty Ltd v Maddern [1985] 2 NSWLR 591, Kirby P described a de facto relationship as a “relationship between an unmarried couple who live together sharing domestic circumstances and who are bound by affection and, usually, sexual relations”. Section 4AA of the FLA (which commenced in 2009) now states that 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 FLA s 4AA(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.

Problems arise, however, as to the length and quality of the cohabitation required for formation purposes. This difficulty has been overcome, to some extent, by statutory intervention. Generally speaking, a de facto relationship only arises when the parties live in a genuine and permanent domestic relationship. Unless a minimum period is prescribed for statutory relief, a de facto relationship may arise after a short period of cohabitation: see Tobin v Executor of Hardy’s Estate (No 2) (1992) DFC 95-​130. For statutory relief, the minimum period is two years under the FLA and the relevant State Acts (three years in SA).

State and Territory legislation [2.70]  All States and Territories have enacted specific legislation to provide de facto partners with some of the more important rights enjoyed by married couples. With the exception of WA, the State and Territory legislation has been largely superseded by changes to the FLA that commenced in 2009. The legislation in NSW defines a de facto relationship as (Property (Relationships) Act 1984 (NSW) s 4(1)) 18

Chapter 2  Marriage and De Facto Relationships

a relationship between two adult persons: • who live together as a couple, and • who are not married to one another or related by family.

Similar definitions are found in the other State and Territory legislation (and extend statutory relief to same-​gender de facto couples). In addition, NSW, SA, Tas, Vic and the ACT give similar rights to a close “personal relationship” (in addition to a de facto relationship but not including a marriage) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic assistance or personal care (without fee or reward). In D v McA (1986) 11 Fam LR 214; (1986) DFC 95-​030, Powell J held that to determine whether a relationship falls within the NSW (pre-​1999) definition of a de facto partner will involve the court in making a value judgment. The court will have regard to a variety of factors relating to the particular relationship, including (but not limited to) the following: • duration of the relationship; • nature and extent of common residence; • whether or not a sexual relationship existed; • degree of financial independence, and any arrangements for

support, between or by the parties; • ownership, use and acquisition of property; • procreation of children; • care and support of children; • performance of household duties; degree of mutual commit-

ment and mutual support; and • reputation and “public” aspects of the relationship.

These factors have been incorporated into the revised NSW definition of “de facto relationship” (in 1999) and the revised Vic definition of “domestic relationship” (in 2001). Cases such as D v McA also make it clear that a person may be in a de facto relationship notwithstanding that they are married 19

Nutshell: Family Law

to another or engaging in a sexual or other close relationship with another. While it is little unclear whether a party can have multiple de facto partners at the same time under State and Territory law, it is suggested that this is possible because to exclude such relationships would lead to injustice. While the court can make property orders under all the State and Territory statutes, limited spousal maintenance rights are only available in NSW, Tas, WA, NT and the ACT (and not in Vic, Qld and SA). A minimum two-​year relationship (three years in SA) must exist before a court can entertain an action for property (and/​or where applicable spousal maintenance) order(s).

Family Law Act [2.80]   Amendments to the FLA that commenced on 1 March 2009 in all States and Territories (except WA and on 1 July 2010 in SA) extend the financial settlement regime under the FLA to parties to a de facto relationship (see Family Law Amendment (De Facto Financial Matters And Other Measures) Act 2008 (Cth) and FLA Pt VIIIAB). Parties to relationships that are not de facto relationships under the FLA must continue to use State and Territory law for applicable relief. As stated above, s 4AA(1) of the FLA defines when a “person is in a de facto relationship”. The historical checklist of factors used to determine the existence of a de facto relationship (also referred to above at [2.70]) has been adapted into the relevant FLA definition: FLA s 4AA(2). In deciding whether a de facto relationship meets the relevant definition, the courts are not exercising a discretionary power but are required to consider a multitude of circumstances in order to make a factual determination on a case-​ by-​case basis: see Moby v Schulter (2010) FLC 93-​447; Jonah v White (2012) FLC 93-​522; Ricci v Jones [2011] FamCAFC 222.

20

Chapter 3

Annulment of Marriage [3.10]  Areas covered: • nullity of marriage • what constitutes a void marriage (the grounds of nullity).

Nullity of marriage [3.20] A decree of nullity does not dissolve a marriage but rather states that the marriage did not exist. The Family Court has the power to grant a decree of nullity of marriage provided the marriage is “void” according to the law: Family Law Act 1975 (Cth) (FLA) s 51. A decree of nullity is a decree absolute at first instance: see In the Marriage of Schmidt (1976) FLC 90-​052 (per Ellis J). An application for a final order (including nullity) must be in accordance with the prescribed form: Family Law Rules (Cth) (FLR) r 2.01. The applicant must establish before the court: • that there was an ostensible marriage (eg by tendering a copy

of the marriage certificate as evidence); • that the parties have a connection to Australia (FLA s 39(3))

(either party was an Australian citizen, ordinarily resident in Australia or present in Australia when the application was filed); and • the sole ground for nullity (ie the marriage is void).

Nutshell: Family Law

Void marriages [3.30]  The relevant grounds are set out in ss 23 and 23B of the Marriage Act 1961 (Cth) (MA). Section 23 applies to all marriages celebrated between 20 June 1977 and the introduction of s 23B in 1986. Section 23B, which is in similar but more specific terms than s 23, applies to all “marriages” celebrated after 7 April 1986 and was introduced so as to give effect to Australia’s ratification of the Hague Convention on the Celebration and Recognition of the Validity of Marriages 1978.

Grounds of nullity [3.40]  Section 23B(1) of the MA provides that a marriage is void where (and not otherwise):

(a) either of the parties was, at the time of the marriage, lawfully married to some other person;



(b) the parties are within a prohibited relationship;



(c) by reason of s 48, the marriage is not a valid marriage;



(d) the consent of either party was not a real consent because —​





(i) it was obtained by duress or fraud; or



(ii) that party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or



(iii) that party was mentally incapable of understanding the nature and effect of the marriage ceremony; or (e) either of the parties was not of marriageable age.

In other words, there are three basic requirements for a marriage: compliance, capacity and consent.

Compliance with formalities [3.50] The compliance rules are set out within the MA itself and are discussed in Chapter 2. It is worth noting that there are exceptions to the MA compliance rules in ss 42 (notification), 44 (witnesses) and 46 (civil celebrant explanation): MA s 48(2). In 22

Chapter 3  Annulment of Marriage

addition, a marriage solemnised by an unauthorised celebrant may still be valid “if either party to the marriage, at the time the marriage was solemnized, believed that the [celebrant] was lawfully authorised to solemnize it”: MA s 48(3).

Capacity to marry [3.60]   A person may not have the capacity to marry for the following reasons: • age; • bigamy; • prohibited relationship; and • mental incapacity.

Age [3.70] Subject to the exception in s 12 of the MA, both parties to the marriage must be aged 18 years or over: MA ss 11 and 88D(2)(b). A foreign marriage, where neither party was at the time domiciled in Australia, shall not be recognised while either party is aged under 16 years: MA s 88D(3).

Bigamy [3.80]  The parties to a marriage must not be lawfully married to another person: MA s 23B(1)(a) (Australian marriage) and MA s 88D(2)(a) (foreign marriage). The bigamy prohibition reinforces the principle of monogamy in our family law: see MA s 113. The law provides for a criminal penalty of five years’ imprisonment for knowingly committing bigamy: MA s 94(1); also see relevant State criminal law statutes. It is worth noting that it is this prohibition against bigamy which is used to justify the non-​recognition of traditional Aboriginal marriages. 23

Nutshell: Family Law

Prohibited relationship [3.90]   A person is prohibited from marrying a close family member related by blood: MA s 23B(1)(b) (Australian marriage) and MA s 88D(2)(c) (foreign marriage). An adopted and ex-​nuptial child is included for prohibition purposes. In practical terms, the prohibition is as follows:  

{grandparent

 

{parent

A person cannot marry his or her

{sibling/​half-​sibling

 

{child

 

{grandchild

Mental incapacity [3.100]   This ground is directed specifically to the incapacity of a party to understand the marriage ceremony: MA s 23B(1)(d)(iii) (Australian marriage) and MA s 88D(2)(d) (foreign marriage). Mere awareness of going through a marriage ceremony is not enough, as a person must understand the nature and effect of the ceremony involved: see Park v Park [1953] 2 All ER 1411. In Dunne v Brown (1982) FLC 91-​232, McCall J stated that: although the man was not capable of writing or presumably looking after his own affairs which must have been left to the wife, in my view he nevertheless understood the significant step he was taking and the significance of it.

Consent to marry [3.110]   This involves situations of: • duress; • fraud; and • mistake.

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Chapter 3  Annulment of Marriage

Duress [3.120]  See MA s 23B(1)(d)(i) (Australian marriage) and MA s 88D(2)(d) (overseas marriage). In considering the issue of duress, the courts have consistently distinguished duress from lesser forms of pressure or persuasion. In Szechter v Szechter [1971] 2 WLR 170; 3 All ER 905 (UK), Sir Joselyn Simon stated that: in order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by the threat of immediate danger (for which the party is himself [sic] responsible) to life, limb or liberty, so that the constraint destroys the reality to consent to ordinary wedlock.

The Australian position was examined by Watson J in In the Marriage of S (1980) FLC 90-​820. His Honour declined to follow the strict Szechter test and found that the applicant was: caught in a psychological prison of family loyalty, parental concern … religious commitment and culture … if she had “no consenting will” it was because these matters were operative —​not threats, violence, imprisonment or physical constraint.

His Honour equated “duress” with oppression, noting that mental oppression can be more than sheer terror or fear. In the subsequent case of Teves and Campomayor (1995) FLC 92-​578 (per Lindenmayer J), the wife alleged she was forced into her marriage which took place in the Philippines in 1991. She argued that she had been subjected to both physical and sexual assault prior to the ceremony. The court was concerned about the lapse of time between the alleged threats and acts and the actual ceremony itself (more than 10 days). After approving of In the Marriage of S and noting that he was dealing with a situation of alleged physical assault, his Honour stated: the cases … make it clear that it is duress at the time of the marriage ceremony that is critical. Clearly 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 time of the ceremony, some overbearing force was operating.

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His Honour confirmed that the standard of proof is the civil standard (the balance of probabilities). The wife’s application for nullity based on duress failed. A claim of duress succeeded, however, in the more recent case of Kreet v Sampir (2011) 44 Fam LR 405. In this case, the Australian-​ born wife “entered” into an arranged marriage in India following pressure from her family that included threats by her own father to kidnap and sexually assault the mother and sisters of the Australian man she actually wanted to marry. In his decision, Cronin J acknowledged that while cultural practices are sensitive issues, it is the law of Australia that must be applied. He further stated that: 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.

Fraud [3.130]  See MA s 23B(1)(d)(i) (Australian marriage) and MA s 88D(2)(d) (overseas marriage). Fraud, like duress, is difficult to prove. Nevertheless, the recent Australian cases have taken a more practical approach to the issue of fraud, but, regrettably, not the same approach. In Deniz and Deniz (1977) FLC 90-​252, Frederico J stated that the older English cases are no longer relevant because the federal Parliament had given the concept of fraud a wider meaning in the MA. The facts involved a female being induced to marry a foreign national whose motive was to secure permanent residence. Frederico J held that the marriage was void because the applicant had been “tricked” into marrying the respondent. The approach in Deniz (that fraud can cover “fraudulent misrepresentation”) was rejected in Otway and Otway (1987) FLC 91-​807. The facts in Otway were similar to Deniz except the sexes were reversed. In Otway, the male applicant knew about the female’s desire to use the marriage to seek permanent residence. What he did not know was that she had an Australian lover and 26

Chapter 3  Annulment of Marriage

that this other relationship had commenced prior to, and continued after, the marriage. McCall J held that the evidence did not establish fraud for nullity purposes. In refusing to follow Deniz, his Honour stated: with the greatest respect to his Honour, I find myself unable to agree with him … In my view the provisions of the Marriage Act were doing little more than putting into statutory form the law as it was then understood, and did not intend to liberalise or expand the meaning of “fraud”. At best the separation of fraud from mistake and the qualifications attached to mistake in the subparagraph only clarified the fact that an innocent as well as fraudulent mistake could result in the relevant lack of consent to the marriage.

Subsequent cases have favoured Otway over Deniz. In Hosking and Hosking (1995) FLC 92-​579, Lindenmayer J confirmed the more limited view or scope of fraud and stated that there should be close proximity between the time of the fraud and the time of the ceremony. In Rick v King [2011] FamCAFC 220, the Full Court upheld the trial judge’s decision to deny a husband a decree of nullity on the basis of her allegedly deceiving him by not disclosing prior to the ceremony that she was a diagnosed AIDS patient. The Full Court stated: Whilst we can readily accept that the husband would not, as he asserted, have proceeded with the marriage had he known the medical status of the wife, we consider that Crooks J succinctly, clearly and accurately applied the long established legal principles relating to nullity of marriage in determining that the failure of the wife to inform the husband of her true medical status did not vitiate the husband’s consent to the marriage.

In other words, there was no doubt that the husband married the woman he thought he was marrying and that the parties went through what they knew was a valid marriage ceremony.

Mistake [3.140] See MA s 23B(1)(d)(ii) (Australian marriage) and MA s 88D(2)(d) (overseas marriage). The “mistake” may be as to the nature of the ceremony performed: see Mehta v Mehta [1945] 2 27

Nutshell: Family Law

All ER 690; and Simpson-​Morgan v Burreket [2009] FamCA 138. In addition, the mistake may be as to the identity of the other party. While the case law on mistaken identity is not conclusive, it is suggested that only a mistake as to the human identity of the other party, rather than his or her name, status or attributes, should justify a nullity decree. In In the Marriage of C and D (1979) FLC 90-​636, the female applicant sought a decree of nullity on the basis that, following the marriage, she discovered that the respondent was a true biological hermaphrodite. Bell J held that this was a case of mistaken identity and stated that: the ground of identity is in my opinion made out in that the wife was contemplating immediately prior to the 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.

This approach seems to be out of step with subsequent cases where it has been held that a surgically altered transgendered person may marry (as a member of the reassigned sex) a person of the opposite sex: see M v M [1991] NZFLR 337; Attorney-​General for the Commonwealth v Kevin and Jennifer (2003) FLC 93-​127, contrast with Bellinger v Bellinger [2003] 2 AC 467. For marriages celebrated since the commencement of 2018, this issue can be no longer relevant given changes to the MA removing gender as an eligibility criterion: see Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).

28

Chapter 4

Divorce under the Family Law Act 1975 [4.10]  Areas covered: • concept of “irretrievable breakdown of marriage”; • divorce proceedings.

Irretrievable breakdown of marriage [4.20]  The relevant provisions are in Pt VI of the Family Law Act 1975 (Cth) (FLA), and in particular ss 48–​50.

Meaning of separation [4.30] The sole ground for divorce is that “the marriage has broken down irretrievably”: FLA s 48(1). The only way in which the sole ground for divorce can be established is to satisfy the court “that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order”: FLA s 48(2). The court is not concerned about the reasons for the breakdown of the marriage. The court need only satisfy itself that a separation took place. Obviously, it is the date of the filing of the application which is crucial, and it must be at least one year and one day after the separation commenced.

Nutshell: Family Law

The notion of separation is more than mere physical separation. There must be a complete separation from the marriage relationship itself. This is often referred to as the loss of the “consortium vitae” (the partnership for life). In In the Marriage of Todd (No 2) (1976) 25 FLR 260, Watson J stated that: 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.

This view was supported by the Full Court (per Evatt CJ, Demack and Watson JJ) in Pavey and Pavey (1976) FLC 90-​051. In Falk and Falk (1977) FLC 90-​247, the Full Court (per Evatt CJ, Fogarty and Bulley JJ) held that for separation to occur, there also needs to be communication of the necessary intention to separate, which may be direct or indirect. In other words, there are three requirements or elements for separation: • intention; • action; and • communication.

It is unclear whether all three elements must have occurred before the 12-​month period commences. In Tye and Tye (No 1) (1976) FLC 90-​028, Emery J held that the separation can be brought about by a unilateral act and the relevant date on the facts was when the husband decided the marriage was over and not when he communicated the intention to his former wife. Some reservations were expressed, however, by Wilczek J in Batty and Batty (1986) FLC 91-​703. His Honour pointed out that the court’s acceptance of late communication in the separation process does not sit well with the court’s obligations under s 43 of the FLA. 30

Chapter 4  Divorce under the Family Law Act 1975

Separation under the one roof [4.40] It is possible for separation to occur while both parties reside in the same accommodation. According to s 49(2) of the FLA: 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.

Despite a similar provision existing under pre-​FLA law, the significance of the parties residing under the one roof (while allegedly separated) is obvious. In Pavey and Pavey (1976) FLC 90-​051, the Full Court (per Evatt CJ, Demack and Watson JJ) stated that: if a residence has been a “family home” in which the parties have lived with their children for many years, to reside there is to continue an observable constant factor, which has continued throughout the marriage.

Nevertheless, the court appreciates that s 49(2) of the FLA provides an exception to the perceived “norm”, and to comply with this provision, the court must be satisfied that there was some overt separation by the parties: Fenech and Fenech (1976) FLC 90-​035 (per Evatt CJ).

Resumption of cohabitation [4.50]  In addition to proving the required separation, the applicant must also satisfy the court that there is no likelihood that cohabitation will be resumed: FLA s 48(3). The resumption of cohabitation is the complete reverse of separation. In other words, just as separation involves the effective breakdown of the consortium vitae, the resumption of cohabitation involves its effective re-​establishment. In In the Marriage of Todd (No 2) (1976) 25 FLR 260, Watson J commented that: casual acts of sexual intercourse do not constitute an interruption of separation. An agreement to resume cohabitation, which is not carried

31

Nutshell: Family Law

out, is insufficient. 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.

In Clarke and Clarke (1986) FLC 91-​ 778, the Full Court (per Lindenmayer J; Fogarty and Nygh JJ agreeing) held that even reconciliation between the parties (in the sense of a restoration of friendly relations between them) does not by itself constitute a resumption of cohabitation. It is worth noting that s 50 of the FLA allows the parties to resume cohabitation for one intervening period of less than three months’ duration without destroying the period already established for separation purposes. In other words, if the reconciliation does not work out, and provided it was for less than three months, the original date of separation can still be used and the 12-​month required separation period is only extended by the period of the reconciliation. This provision is in keeping with the spirit of s 43 of the FLA as it formally promotes reconciliation of marriages while recognising that this does not always work out.

Marriages of less than two years [4.60] A counselling requirement exists for parties who seek to divorce within the first two years of marriage. A divorce application cannot be filed within the two-​year period unless a prescribed counselling certificate accompanies the application: FLA s 44(1B). The counselling certificate must be signed by an approved counsellor and state that the parties have considered a reconciliation with that counsellor’s assistance. The counselling requirement may be dispensed with if the court is satisfied that there are “special circumstances” for the divorce application to proceed: FLA s 44(1C). The case law is not particularly helpful as to what may amount to “special circumstances” for the dispensation. Some judges have held that a simple indication from both parties that they were not interested

32

Chapter 4  Divorce under the Family Law Act 1975

in counselling may be sufficient: see Nuell and Nuell (1976) FLC 90-​031 (per Fogarty J). Other judges have held that “special circumstances” means facts which are peculiar and depart from the norm: see Philippe and Philippe (1978) FLC 90-​433 (per O’Connor J); Malyszko and Malyszko (1979) FLC 90-​650 (per Ellis J).

When divorce order takes effect [4.70]  Section 55(1) of the FLA provides that a divorce order takes effect one month after the making of either the divorce order or the s 55A declaration (discussed at [4.80]), whichever is later in time. The court is empowered to extend or reduce the statutory period: FLA s 55(2)(b). The court may decide to extend the statutory period if there is the real likelihood of an appeal being lodged (which is extremely rare in divorce proceedings) or reduce the period in exceptional circumstances (although early remarriage by one of the parties is not, of itself, usually sufficient). The reason for the statutory period is not just to afford a dissenting party a right to appeal the decision (which is extremely rare) but it also provides the parties with one last chance of reconciliation. If the parties do reconcile during this period, they may apply to the court for an order to rescind the divorce order: FLA s 57. Rescission may also be possible if the court is satisfied that the divorce proceedings were the subject of a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance: FLA s 58. A decree will not become final if either party dies during the statutory period: FLA s 55(4). Once the decree becomes final, both parties are free to marry again: FLA s 59.

Arrangements for children (s 55A declaration) [4.80] Section 55A(1) of the FLA provides that a divorce order does not take effect unless the court is satisfied in relation to one of two matters involving the children of the marriage. First, that there are no children of the marriage who have not attained the

33

Nutshell: Family Law

age of 18 years; or secondly, that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that: • proper arrangements in all the circumstances have been made

for the welfare of those children; or • there are circumstances by reason of which the divorce order

should take effect, notwithstanding that the court is not satisfied that such arrangements have been made. Where the court has doubts about whether the arrangements for the children are proper in all the circumstances, it may adjourn the divorce proceedings until a report has been obtained from a family consultant (appointed by the court) regarding those arrangements: FLA s 55A(2). It is worth noting that a child of the marriage includes any child “treated by the husband and wife as a child of their family” at the time of their separation: FLA s 55A(3) and (4). The protective nature of s 55A was demonstrated in Maunder and Maunder (1999) FLC 92-​871. In allowing an appeal against a divorce order becoming final, the Full Court (per Finn, Kay and Moore JJ) held that: The provisions of s 55A are mandatory and express a firm policy not to allow parties to be divorced without giving appropriate consideration to the arrangements that have been made for the welfare of the children to the marriage. In our view, nothing in the material raised any circumstance which could be said to make it appropriate in this case that a s 55A declaration be granted. That is not to say that such circumstances may not exist.

Divorce proceedings [4.90]  Despite the Family Court having concurrent jurisdiction, proceedings for divorce are now filed in the Federal Circuit Court (except in WA where they are filed in the Family Court

34

Chapter 4  Divorce under the Family Law Act 1975

of WA). The application must be in accordance with the prescribed form: Federal Circuit Court Rules (Cth) (FCCR) r 25.01 (an interactive form is available via http://​ www.federalcircuitcourt.gov.au). The FCCR also require that the original marriage certificate given to the parties at their wedding, or a copy which is certified by the relevant Registry of Births, Deaths and Marriages, or a photocopy of the original or certified marriage certificate, must be filed with the application: FCCR r 25.01(2)–​ (4). Any supporting documents (such as an affidavit from a witness to support separation under the one roof, or an affidavit by the de facto spouse of the carer parent to assist in gaining a s 55A declaration) should also be filed with the application. An affidavit is written evidence and must comply with the FCCR and the Evidence Act 1995 (Cth) and be in accordance with the required form. Apart from procedural aspects such as proof of service, there are four elements which need to be proved before the court at the divorce hearing: • marriage; • jurisdiction; • sole ground for divorce; and • the existence of a s 55A declaration.

Marriage [4.100]  This element is proved by formally tendering in court the marriage certificate that was previously filed. If no marriage certificate exists, it will be necessary to prove the marriage in some other way (eg evidence from the celebrant or witnesses). A mere assertion by an applicant that he or she is married does not constitute the required evidence: see Youseff and Youseff (1997) FLC 92-​722 (per Ellis J; Barblett DCJ and Coleman J agreeing). At the hearing, the court will make a formal finding that the marriage existed (not a declaration or order).

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Nutshell: Family Law

Jurisdiction [4.110]  The court must be satisfied that it has jurisdiction to deal with the application: FLA s 39(3). The applicant needs to establish that either party was either “domiciled” in Australia, ordinarily resident in Australia for a period of not less than 12 months prior to the application or an Australian citizen. A mere assertion by an applicant that he or she is an Australian citizen does not constitute evidence for the purposes of FLA s 39(3): see Youseff and Youseff (1997) FLC 92-​722 (per Ellis J; Barblett DCJ and Coleman J agreeing). Domicile is proved by “intention”, and the intention to remain in Australia must be evidenced by a statement to that effect in the application: see Domicile Act 1982 (Cth); Salacup and Salacup (1993) FLC 92-​431 (per Registrar Northcott). The vast majority of applicants rely on the ground of domicile to prove jurisdiction. As with the first element, the court will make a formal finding.

Sole ground [4.120]  The court must be satisfied that there has been an irretrievable breakdown of marriage (as discussed earlier in this chapter at [4.30]).

Section 55A declaration [4.130]  Unlike the previous elements, the court makes a formal declaration (as discussed earlier in this chapter at [4.80]).

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Chapter 5

Children under the Family Law Act 1975 [5.10]  Areas covered: • parental powers and responsibilities • parentage of children • parenting orders • welfare orders • location and recovery of children • best interests principle • spending equal time or substantial and significant time with

each parent • independent legal representation for children • parenting plans • parenting compliance regime.

Parental powers and responsibilities Common law [5.20]  Historically, parents had “rights” in respect of their children. For example, parental rights included the right to name or to discipline their children. Over the years, statute has intervened to narrow —​or more correctly, re-​define —​parental rights into parental responsibility. At common law, the principal legal notion concerning the rights and powers of an adult over children was that of “guardianship”. The term “guardianship” was considered

Nutshell: Family Law

in its broad sense, being the full range of rights and powers that can be exercised by an adult in respect of the welfare and upbringing of a child: see Youngman v Lawson [1981] 1 NSWLR 439 (per Street CJ). The common law distinction between guardianship and custody has been considered in a number of English and Australian cases. In many decisions, “guardianship” was given abstract meanings, such as “guarding” the child from danger generally, rather than from any specific danger or concern. In other words, the term “guardianship” comprehends the longer-​term welfare of the child. By contrast, “custody” was viewed in terms of “control” and ensuring provision of the basic necessities of life. In other words, “custody” matters involve short-​term responsibilities and needs. The common law also recognises that guardianship and custody rights have a diminishing nature. In other words, the rights of a child’s custodian diminish as the child acquires the intelligence, maturity and understanding to make his or her own decisions on particular matters: see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; Secretary, Department of Health & Community Services v JWB and SMB (“Marion’s Case”) (1992) FLC 92-​293. All custody and other parental rights automatically ceased when the child obtained the age of majority or married. The age of majority was reduced from 21 to 18 by State and Territory legislation in the early 1970s.

State and Territory laws [5.30] The “parens patriae” jurisdiction of the State Supreme Courts enabled the court to appoint an adult to be the guardian or custodian of a child: see G v P [1977] VR 44. This is also referred to as the court’s wardship power (to declare a child a ward of the court). The origins of this power date back to the 16th century in England. While some courts have expressed that this power is 38

Chapter 5  Children under the Family Law Act 1975

basically limitless, the prevailing view has confined the use of the power to matters relating to the guardianship and custody of children, and the management of the child’s property: see Chignola v Chignola (1974) 9 SASR 479. In K v Minister, Youth & Community Services [1982] 1 NSWLR 311 the court (per Helsham CJ in Eq) allowed a State ward to terminate a pregnancy against the wishes of the then Minister. The court held that it had the power to declare the child a ward of the court under the parens patriae jurisdiction despite the fact that the child was under State welfare legislation. The parens patriae jurisdiction of the State Supreme Courts has been largely superseded by the expanding provisions of Pt VII of the FLA, particularly following the referral of powers by the States (except WA) in the 1980s. Nevertheless, it continues to exist as a residual jurisdiction to “fill in the gaps”. Notwithstanding the referral of powers over children to the Commonwealth, the States and Territories retain the power over child welfare (care and control issues) affecting children. A statutory status of ward has been enacted in most parts of Australia. Generally speaking, a Children’s Court places a child (in need of care) into the care of the relevant Minister or Department (eg Community Services/​Child Safety).

Part VII of the Family Law Act 1975 [5.40]  Part VII of the FLA was radically overhauled in 1996 by the changes introduced by the Family Law Reform Act 1995 (Cth) (FLRA). The changes were needed to reflect Australia’s ratification of the United Nations Convention on the Rights of the Child 1989. The FLRA provided not just a change in the prevailing terminology, but a new approach to family law based upon the concept of children’s rights and parental responsibility. Another major overhaul occurred in July 2006 with the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Minor reforms were also introduced in June 2012 (see Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)) and September 2018 (see Family Law Amendment 39

Nutshell: Family Law

(Family Violence and Other Measures Act 2018 (Cth)). In addition, changes are to be introduced in 2019 that effect the cross-​examination of victims of family violence (see Family Law Amendment (Family Violence and Cross-​examination of Parties) Act 2018 (Cth)). An essential provision is s 61DA(1) of the FLA which provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption will not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence or it is not otherwise in the best interests of the child having regard to the relevant criteria in the Act. The object of Pt VII of the FLA, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), is • to ensure 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; • to protect children from physical or psychological harm; • to protect children from being subjected to, or exposed to,

abuse, neglect or family violence; • to ensure that children receive adequate and proper parent-

ing to help them achieve their full potential; and • to ensure that parents fulfil their duties, and meet their respon-

sibilities, concerning the care, welfare and development of their children: see FLA s 60B(1)(a)–​(d). Unless it would be contrary to a child’s best interests, the principles underlying the central objective are that: • children have the right to know and be cared for by both par-

ents, regardless of whether their parents are married, separated, have never married or never lived together (s 60B(2)(a)); • children have a right to spend time on a regular basis, and com-

municate on a regular basis, with both their parents and with 40

Chapter 5  Children under the Family Law Act 1975

other people significant to their care, welfare and development (such as grandparents and other relatives) (s 60B(2)(b)); • parents jointly share duties and responsibilities concerning the

care, welfare and development of their children (s 60B(2)(c)); • parents should agree about the future parenting of their chil-

dren (s 60B(2)(d)); and • children have a right to enjoy their culture (including the right

to enjoy that culture with other people who share that culture): s 60B(2)(e). Subject to a court order, it is worth noting that each parent has parental responsibility for a child who is not 18 years old, regardless of separation, divorce or remarriage: FLA s 61C. Parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”: FLA s 61B. This would include matters such as: • living with, spending time with and communicating with

a child; • protecting and maintaining a child, including the provision

of accommodation; • consenting to medical treatment for a child; • determining a child’s education and religious needs; and • administering a child’s property.

The relevant Divisions in FLA Pt VII are: • Div 1 —​this outlines the objectives and principles of the

amended Pt VII; • Div 2 —​this

introduces the concept of “parental

responsibility”; • Div 3 —​this deals with reports relating to children under 18

in child-​related proceedings; • Div 4 —​this deals with “parenting plans”; • Div 5 —​this deals with the definition of “parenting orders”; • Div 6 —​this deals with the “nuts and bolts” of parenting

orders and includes matters such as: 41

Nutshell: Family Law

– who may apply (s 65C); – the court’s power (s 65D); – the court’s obligation to consider the child spending equal time or “substantial and significant time” with each parent in certain circumstances (s 65DAA); – the court’s obligation to have regard to parenting plans (s 65DAB); – the overriding principle that the “child’s best interests are the paramount concern” in the making of a parenting order (s 60CA); – obligations created by parenting orders (subdivs C–​E); • Div 7 —​this deals with child maintenance (see Chapter 6); • Div 8 —​this deals with “other matters relating to children”

(this covers a large number of matters including child-​bearing expenses, location and recovery of children and allegations of child abuse); • Div 9 —​this deals with injunctions as they affect children (see

Chapter 10); • Div 10 —​this deals with the concept of “what is the best inter-

ests of children” and the separate representation of children in Family Court proceedings; • Div 11 —​this deals with the issue of family violence; • Div 12 —​this is a broad division that deals with proceedings

and jurisdiction and includes matters such as: – who may commence general Pt VII proceedings (unless specified elsewhere in Pt VII) (s 69C); – the child must be “connected” with Australia in all FLA proceedings (s 69E); – the jurisdiction of courts (ss 69G–​69N); – parentage presumptions (ss 69P–​69ZD); and

and

parentage

evidence

– the extension of jurisdiction to cover the State referral of powers (ss 69ZE–​69ZK);

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Chapter 5  Children under the Family Law Act 1975

• Div 12A —​this provides principles for conducting child-​

related proceedings, including issues such as evidence and court proceedings; • Div 13 —​this deals with the registration of State, Territory or

overseas orders so that they have effect in Australia; • Div 13A —​this deals with the consequences of failure to com-

ply with orders, and other obligations, that affect children, and in particular, the powers of the court to direct a person to attend a “post separation parenting program” or impose some other sanction. • Div 14 —​this is a miscellaneous Division, dealing with instru-

ments not subject to duty. The provisions in Pt VII of the FLA have no application in WA in relation to ex-​ nuptial children. However, parallel provisions are in Pt 5 Divs 1–​13 (ss 66–​205S) of the Family Court Act 1997 (WA).

Parentage of children Legitimacy [5.50]  The common law has always drawn a distinction between those children who are born “in wedlock” (legitimate) and those who are not (illegitimate). Illegitimacy affected a child’s right of inheritance. In Attorney-​General (Vic) v Commonwealth (1962) 107 CLR 529, Windeyer J stated that: the common law expressed the result [of being illegitimate] by saying that a bastard was not of heritable blood. He could not be an heir; and no-​one could inherit through him … [apart from] heirs of his own.

The popular legal description of an illegitimate child was the phrase “filius nullius”, which literally means “the son [child] of nobody”. The Marriage Act 1961 (MA) amended the common law in Australia in two ways:

43

Nutshell: Family Law

• first, the legitimacy of children born to a couple whose mar-

riage is void is protected (MA s 91); and • secondly, children are “legitimised” from birth when their bio-

logical parents marry: MA s 89. In NSW, Vic, Qld, WA and NT, the effect of an adoption order is to legitimate the child as that of the adoptive parents.

Equality of status legislation [5.60]  All States and Territories now have legislation which makes legitimate and illegitimate children equal in status: see Status of Children Act 1996 (NSW); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic); Birth (Equality of Status) Act 1988 (ACT); Status of Children Act 1978 (NT). In WA this legislation is not contained in a single statute nor is it as comprehensive as the legislation in the other States and Territories. The Equality of Status legislation makes the fact of marriage irrelevant for the purpose of determining kin relationships. In other words, it abolished the common law notion that an illegitimate child (now known as an ex-​nuptial child) was deemed “filius nullius”.

Establishing the parentage of children [5.70]  Historically, paternity (proving the father of a child) was extremely difficult to legally establish. In modern times this problem has been largely overcome by the availability of modern medical techniques, and, in particular, accurate DNA testing. The common law was motivated by the Latin maxim “mater semper certa est pater incertus est” (that maternity is a matter of fact whereas paternity is a matter of opinion!). To reduce the uncertainty, the common law established a presumption of paternity in marriage. Obviously, the presumption was (and still is) rebuttable by proof using the civil standard. The presumptions of parentage under the FLA are found in Pt VII Div 12 subdiv D: ss 69P–​69U. The presumptions are: 44

Chapter 5  Children under the Family Law Act 1975

• marriage (s 69P) —​there is a presumption of parentage if a

child is born during the marriage or within a maximum of 44 weeks after separation or death; • non-​marital cohabitation (s 69Q) —​there is a presumption of

paternity in favour of the male partner where a child is born to the female partner during a relationship which existed for a period between 20 and 44 weeks before the child’s birth; • registration of birth (s 69R) —​there is a presumption of

parentage arising from registration of birth under State or Territory legislation; • court finding (s 69S) —​there is a presumption of parentage

arising from findings of courts, including prescribed foreign courts; and • acknowledgment (s 69T) —​there is a presumption of paternity

arising from acknowledgments of paternity. Section 69U(1) provides that a parentage presumption can be rebutted by “proof on the balance of probabilities”: see G v H (1994) 181 CLR 387 (per Deane, Dawson and Gaudron JJ).

Parentage evidence [5.80]  The Family Court and the Federal Circuit Court have the power, on the request of a party or on its own initiative, to make a “parentage testing order”: FLA s 69W. The actual wording is set out in s 69W(3) of the FLA. The FLA stipulates the types of orders the court can make including an order for a party to provide “a bodily sample” for testing purposes: FLA s 69X(3)(b). A parentage testing procedure is defined in the Family Law Rules (Cth) (FLR): see definitions in FLA s 5 and FLR Pt IIA (rr 21A–​21N, in particular r 21C). This is basically a blood group test or a “DNA fingerprint” test. Similar powers exist in the State and Territory Equality of Status legislation where parentage is an issue in a relevant non-​federal dispute. It is worth noting that the failure of an adult to comply with this court order does not result in sanction: FLA s 69Y(1). However, 45

Nutshell: Family Law

adverse inferences can be made by the court: FLA s 69Y(2); also see G v H (1994) 181 CLR 387. If a parent, guardian or other relevant person gives consent, then it appears that a child can be forced to undergo a test: FLA s 69Z(1) and (2). If the parent or guardian refuses, then the court can only draw inferences: FLA s 69Z(3). Any person who carries out a procedure to which consent has been given is not liable to any criminal or civil liability: FLA s 69ZA. In addition to deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, a court exercising jurisdiction under Pt VII of the FLA may also issue a declaration of parentage that is conclusive evidence for the purposes of all laws of the Commonwealth: FLA s 69VA.

Parenting orders Types of orders [5.90] While each parent is presumed to have or share in the parental responsibility for a child, this is subject to any court order to the contrary. Section 61D(1) of the FLA provides that a “parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to a child”. Section 64B(2) of the FLA stipulates that a parenting order may deal with one or more of the following: • the person or persons with whom a child is to live (s 64B(2)(a)); • the time a child is to spend with another person or other per-

sons (s 64B(2)(b)); • the allocation of parental responsibility for a child (s 64B(2)(c)); • 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 64B(2)(d));

46

Chapter 5  Children under the Family Law Act 1975

• the communication a child is to have with another person or

other persons (s 64B(2)(e)); • maintenance of a child (s 64B(2)(f)); • the steps to be taken before an application is made to a court

for a variation of the order to take account of the changing needs or circumstances of: (i) a child to whom the order relates; or (ii) the parties to the proceedings in which the order is made (s 64B(2)(g)); • the process to be used for resolving disputes about the terms

or operation of the order (s 64B(2)(h)); • any aspect of the care, welfare or development of the child or

any other aspect of parental responsibility for a child: s 64B(2)(i). As stated earlier in this Chapter at [5.40], s 61DA(1) of the FLA provides that in making a parenting order, a court must apply a presumption that is in the best interests of the child for the parents to have equal shared parental responsibility for the child. This presumption will not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence or it is not otherwise in the best interests of the child having regard to the relevant criteria in the Act: s 61DA(2) and (4). If the court is making an interim parenting order, the court may determine that it is not appropriate to apply the presumption particularly in early stages of the proceedings: s 61DA(3).

Who may apply? [5.100]  An application for a parenting order may be made by a parent, the child, a grandparent or any person concerned with the care, welfare or development of the child: FLA s 65C. In addition, there must be a jurisdictional connection between the child, parent or party, and Australia: FLA s 69E.

47

Nutshell: Family Law

An application for a final order (and any interim or procedural order if sought) must be in accordance with the prescribed form: FLR rr 2.01 and 5.01; FCCR rr 2.01–​2.04. A court must not hear an application for a Pt VII order unless the applicant also files a certificate from a family dispute resolution practitioner (defined in s 10F of the FLA) that the parties have attempted dispute resolution. This requirement is compulsory with the exception of circumstances covered in s 60I(9) of the FLA, which includes such matters as one of the parties not being able to participate because of remoteness, or if there is abuse or family violence or the risk of same: FLA s 60I(9)(b).

Court’s power [5.110]  Section 65D(1) of the FLA states that: “In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.” Section 65D(2) of the FLA allows the court to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order “subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans)”. Clearly, the power of the court to make a parenting order is a discretionary one. In determining whether an order is proper, regard must be had to s 60CA of the FLA (see [5.130]). Moreover, the court also has the power to order the parties to attend family counselling, and such counselling is compulsory if the court proposes to make a parenting order in favour of a non-​parent: FLA ss 65F and 65G. A parenting order must not be made (or if in force ceases to be in force) in relation to a child who is 18 or over, or is or has been married, or is in a de facto relationship: FLA s 65H.

48

Chapter 5  Children under the Family Law Act 1975

Explanation of the order [5.120]  There is an obligation to provide an explanation of the order to the persons affected by it. If the court makes a parenting order, then it must include in the order particulars of the obligations that the order creates and the consequences that may follow if a person contravenes the order: FLA s 65DA(2). If any of the parties are not legally represented, the court must also explain the availability of programs to help people to understand their responsibilities under parenting orders and the availability and use of location and recovery orders (also discussed later in this Chapter at [5.150]) to ensure that parenting orders are complied with: FLA s 65DA(3). If a party is legally represented, the court may request the legal practitioner to assist in providing the required explanations and the practitioner is under a duty to comply: FLA s 65DA(5) and (6). Any required explanations must be expressed in language that is likely to be readily understood by the person to whom the order is directed or the explanation is given: FLA s 65DA(8).

Best interests of child paramount [5.130]  With the exception of orders relating to child maintenance or child-​bearing expenses which have their own criteria, the court is required, when deciding whether or not to make a parenting order, to consider the “best interests of the child as the paramount consideration”: FLA s 60CA. This is a mandatory consideration and is elaborated upon in FLA s 60CC. There are two “primary considerations” in s 60CC(2) that the court must take into account in determining what is in the child’s best interests and a further 14 “additional considerations” in s 60CC(3). It is worth noting that the best interests principle also applies in relation to: • welfare orders (s 67ZC(2)); • a location order (s 67L); and • a recovery order: s 67V.

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Nutshell: Family Law

While the pre-​1996 FLA used the term “welfare of the child”, rather than the “best interests of the child”, it has been held by the Full Court that there is no difference in effect between the two phrases and hence the pre-​1996 case law remains valid: see B and B: Family Law Reform Act 1995 (1997) FLC 92-​755 (per Nicholson CJ, Fogarty and Lindenmayer JJ). The best interests of a child are considered in the light of contemporary standards at large, and not from the point of view of the standards of particular parents or of one section of society only: see Horman v Horman (1976) FLC 90-​024 (per Fogarty J). Perhaps Asche J summed it up when he said in In the Marriage of N and H (1982) FLC 91-​267: the court cannot … sacrifice [a]‌child on the altar of liberalism if on balance the factors … point to a situation which would be detrimental to the child’s welfare.

The courts have approached the best interests issue by considering the long-​term interests of the child, rather than the short term. This is why the court has been prepared to make an order, which may cause the child some short-​term distress, or even disadvantage, if reasonably satisfied that the order will clearly benefit the child in the longer term. The use of the word “paramount” has its origins in the late 19th century: see Re A and B (Infants) [1897] 1 Ch 786. In Kress v Kress (1976) FLC 90-​126 Goldstein J stated: there now seems no doubt that the expression “paramount consideration” does not mean that one should view the matter of the child’s welfare as first of a list of matters to consider, but rather that it must be the overriding consideration.

In other words, in reaching a final decision the court must seek only the decision that will best promote the welfare or best interests of the child. This view was re-​confirmed in B and B: Family Law Reform Act 1995 where the Full Court (per Nicholson CJ, Fogarty and Lindenmayer JJ) stated that: in our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Pt VII … starts from that essential premise and it remains the final

50

Chapter 5  Children under the Family Law Act 1975

determinant. The legislature has also made it clear that in that process the court is required to have regard to both the provisions contained in s 68F(2) [now s 60CC(3)] and those contained in s 60B.

In Nawaqaliva v Marshall (2006) FLC 93-​296 Rose J re-​confirmed the Family Court’s position when he stated: The matters … established in the leading Full Court judgment of B and B, Family Law Reform Act 1995 as a matter of law do not appear to me to have been displaced by the legislative amendments which came into force on 1 July 2006. This is especially so, due to the continued emphasis upon the paramountcy principle of the best interests of the child … both for the purpose of making a parenting order as well as the exception to the principles underlying the objects of Part VII … The First Reading Speech in the House of Representatives provides additional emphasis of the paramountcy of the best interests of the child.

Welfare orders [5.140]  Section 67ZC(1) of the FLA provides that “in addition to the jurisdiction that a court has under this part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children”. Section 67ZC(2) of the FLA further provides that “in deciding whether to make an order under subsection (1) in relation to a child, the court must regard the best interests of the child as the paramount consideration”. While the FLA does not expressly invest any court with parens patriae jurisdiction, the so-​called “welfare power” in s 67ZC(1) is regarded as a quasi parens patriae jurisdiction: see P v P (1994) FLC 92-​462 (HC). This power enables the court to have an important role in supervising medical procedures for children. In Secretary, Department of Health & Community Services v JWB and SMB (“Marion’s Case”) (1992) FLC 92-​293 the High Court confirmed that the Family Court has the power to intervene under the former s 64 (now FLA s 67ZC). The High Court (per Mason CJ, Dawson, Toohey and Gaudron JJ) has also made it clear that in relation to 51

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the issue of a non-​therapeutic sterilisation procedure for an intellectually challenged child (or otherwise), permission for such an operation is needed from the court. Brennan J (dissenting) held that neither a court nor the parents may authorise a non-​therapeutic sterilisation of a minor. By contrast, Deane and McHugh JJ (in separate judgments) held that parents may authorise a non-​therapeutic sterilisation of a minor in certain limited situations. In the recent case of Re Kelvin [2017] FamCAFC 258, Full Court of the Family Court (per Thackray, Strickland, Ainslie-​Wallace, Ryan and Murphy JJ) confirmed that court authorisation is no longer required for “Stage 2” treatment for children with gender dysphoria. Stage 2 treatment is generally available for a child from about 16 years of age and involves using hormones (oestrogen or testosterone) to change the body to be more consistent with the child’s affirmed gender. This decision means that children and their families can now access the necessary medical treatment in such situations without the need to apply to the Family Court first. In making this decision, the Full Court made it clear that parents, rather than the court, may consent to Stage 2 treatment if their child is not “Gillick competent” to make that decision. However, it is unclear if the court will take the same approach if the decision rests with a guardian or relative. A further limitation of the decision is that it does not extend to children who may want Stage 2 treatment but are under the care of a State or Territory. Consequently, such children will still require court authorisation to commence treatment.

Location and recovery of children [5.150]  The Family Court and Federal Circuit Court are often asked to resolve disputes in situations where one parent “kidnaps”, for want of a better term, their child or children following separation from the other parent. In Schenck v Schenck (1981) FLC 91-​023 the Full Court (per Evatt CJ, Marshall and Lindenmayer JJ) stated that: a parent who deliberately removes a child from contact with the other parent, in circumstances where the child’s welfare did not render such

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action necessary or reasonable, will generally be seen as having acted contrary to the welfare of the child.

Intrastate and interstate child abduction [5.160]  In relation to child abduction within Australia, the provisions of s 65M of the FLA should be noted. This section provides that in the event that a parenting order is in force in relation to a child which deals with whom the child is to live with, a person must not: • remove the child from the care of a person (s 65M(2)(a)); or • refuse or fail to deliver or return the child to a person

(s 65M(2)(b)); or • interfere with the exercise or performance of any of the pow-

ers, duties or responsibilities that a person has under the order: s 65M(2)(c). There is a similar provision in s 65N in relation to an order concerning with whom the child is to spend time, in s 65NA in relation to an order concerning with whom the child is to communicate with and in s 65P for a person who has an order allocating them parental responsibility. If the court is satisfied that the alleged offender has contravened a parenting order, and on the balance of probabilities he or she had no reasonable excuse for the contravention, then it may issue a warrant for the offender’s arrest (s 65Q) and subsequently impose one of the measures or sanctions available under Pt VII, Div 13A of the FLA (see parenting compliance regime discussed later in this Chapter at [5.360]).

Location order [5.170] Section 67J of the FLA stipulates that a location order is a court order requiring a party (such as Centrelink) to provide the court with any information as to the whereabouts of a child or children. The actual power is found in s 67M(2) of the 53

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FLA. In deciding whether or not to make an order, the court must consider “the best interests of the child as the paramount consideration”: FLA s 67L.

Recovery order [5.180]  Section 67Q of the FLA stipulates that a recovery order is a court order requiring a person to return the child to a specified party. The court’s power to make such an order is found in s 67U of the FLA. The court’s determination is subject to the “best interests principle”: FLA s 67V.

International child abduction [5.190]  Section 65Y(1) of the FLA stipulates that if: a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2). Penalty: Imprisonment for 3 years.

A similar obligation exists if proceedings for the making of a parenting order are pending: FLA s 65Z. The removal is permitted if the written consent of all the relevant parties is obtained or the court orders otherwise: FLA ss 65Y(2) and 65Z(2). There are also obligations imposed upon the owners of aircraft or vessels not to permit a relevant child to leave Australia if notified in accordance with the legislation: FLA ss 65ZA–​65ZC. In 1980, the Convention on the Civil Aspects of International Child Abduction was signed at The Hague. Australia is a signatory to this Convention, and consequently, the federal Parliament enacted the Family Law (Child Abduction Convention) Regulations 1986 (Cth) in 1986: FLA s 111B. The Convention only applies to member countries and requires an abducted child to be returned to the home jurisdiction so that the appropriate home court can determine the

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matter. Before making a return order, a court must be satisfied that the relevant child was “habitually resident” in a Convention country immediately before the removal and that “rights of custody” are attributed to a person, institution or other body, under a law in force in that Convention country: Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 4(1). Unless the Convention Regulations provide otherwise, a court must make a return order if the application is filed within one year of the child’s removal to, or retention in, Australia: reg 16(1). Similarly, a return order is to be made even where the application was filed more than one year after the child’s removal to, or retention in, Australia, unless the court is satisfied that the child “is settled in his or her new environment”: reg 16(2). Regulation 16(3) sets out criteria where a court may refuse to make a return order, namely where:

(a) the person, institution or other body seeking the child’s return:

(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or



(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or



(c) each of the following applies:

(i) the child objects to being returned;



(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;



(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

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The Convention Regulations, and in particular the “grave risk” exception in reg 16(3)(b), were considered by the High Court in the case of DP v Commonwealth Central Authority; JLM v Director-​ General, NSW Department of Community Services (2001) FLC 93-​ 081. A majority (per Gaudron, Gummow and Hayne JJ; Callinan J agreeing; Gleeson CJ and Kirby J dissenting) disagreed with the Full Court view that the Convention Regulations should be narrowly construed. The majority held that the risk of harm that is relevant is not limited to harm that will actually occur but to a risk that the return would expose the child to harm. The list of member countries is set out in Sch 2 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). Applications are made via the Central Authority (Commonwealth Attorney-​ General’s Department and the State and Territory welfare authorities). The constitutional validity of the Convention Regulations was upheld by the High Court in De L v Director-​ General, NSW Department of Community Services (1996) FLC 92-​ 706 (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Kirby J in a separate judgment) as a valid exercise of the external affairs power: Australian Constitution s 51(xxix). In De L the court also confirmed that the Convention is not subject to an overriding “paramountcy principle”. It is worth noting, however, that the Child Abduction Convention is not, by itself, part of Australian law, and that the relevant law is the Family Law (Child Abduction Convention) Regulations 1986 (Cth): see DP v Commonwealth Central Authority; JLM v Director-​General, NSW Department of Community Services (per Gaudron, Gummow and Hayne JJ; Callinan J agreeing). If the Convention Regulations do not apply, then the issue of the appropriate forum is determined by reference to the “paramountcy principle”: Van Rensburg and Paquay (1993) FLC 92-​391 (per Nicholson CJ, Nygh and Mullane JJ); ZP v PS (1994) 181 CLR 639 (per Brennan, Deane, Dawson and Gaudron JJ; Mason CJ, Toohey and McHugh JJ dissenting). In Van Rensburg and Paquay

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the Full Court also stated that in non-​Convention cases, it is appropriate to pay regard to the policy of the Convention and the fact that Australia is a party to it.

Best interests principle The “primary” considerations [5.200]  Section 60CC(2) of the FLA sets out two primary matters which the court must consider in determining what is in a child’s best interests. Section 60CC(2)(a) requires the court to consider the benefit of the child having a meaningful relationship with both of the child’s parents. The Full Court considered this provision and the concept of “meaningful relationship” in McCall v Clark [2009] FamCAFC 92. What the court is required to do is consider and weigh the available evidence and determine (assuming the court is satisfied that it is in the child’s best interests) how and what orders can be framed in order to ensure that the child has a meaningful relationship with both of his or her parents. Given the wording of s 60CC(2)(a) of the FLA, this consideration does not extend to an examination of a child having a meaningful relationship with extended family members (such as grandparents or step-​parents): see Burton v Churchin (2013) FLC 93-​561. Nevertheless, such broader relationships may be relevant “additional consideration” pursuant to s 60CC(3)(b) and (m) of the FLA (discussed at [5.210]). Section 60CC(2)(b) of the FLA requires the court to consider the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. This primary consideration applies in every parenting matter, no matter who the parties to those proceedings are. Moreover, pursuant to the changes that commenced in 2012, the court is required to give greater weight to the protection from harm (s 60CC(2)(b))

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as against the promotion of a meaningful relationship between the child and a parent (s 60CC(2)(a)): s 60CC(2A).

The “additional” considerations [5.210]  Section 60CC(3) of the FLA sets out 14 “additional” matters, which the court must consider in determining what is in a child’s best interests. These are: • 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 (s 60CC(3)(a)); • the nature of the relationship of the child with each of the

child’s parents and with other persons, including any grandparent or other relative of the child (s 60CC(3)(b)); • the extent to which each of the child’s parents has taken, or

failed to take, the opportunity to participate in making decisions about major long-​term issues in relation to the child and otherwise to spend time with and/​or communicate with the child (s 60CC(3)(c)); • the extent to which each of the child’s parents has fulfilled, or

failed to fulfil, the parent’s obligations to maintain the child (s 60CC(3)(ca)); • the effect of any changes in circumstances (s 60CC(3)(d)); • practical difficulties and expenses associated with a par-

ent spending time with or communicating with the child (s 60CC(3)(e)); • capacity to provide for the child’s needs, including emotional

and intellectual needs (s 60CC(3)(f)); • the

child’s maturity, (s 60CC(3)(g));

sex,

lifestyle

and

background

• if the child is an Aboriginal or Torres Strait Islander, the

child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (s 60CC(3)(h)); • parental attitudes (s 60CC(3)(i));

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• any family violence (s 60CC(3)(j)); • if a family violence order applies: the nature of the order; the

circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; and any other relevant matter (s 60CC(3)(k)); • whether it would be preferable to make the order that would

be least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l)); and • any other fact or circumstance that the court thinks is rele-

vant: s 60CC(3)(m).

Views of the child [5.220] The court must consider “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”: FLA s 60CC(3)(a). The original s 64(1) of the FLA drew a distinction for children aged 14 years and over. In other words, the court had to justify why it held against the wishes of a child 14 years and over. Some child psychologists felt that this “choice” placed an unfair burden on the teenage child because children invariably do not want to make this decision. The choice provision was dropped in 1983. Section 60CD of the FLA stipulates how the court can inform itself of a child’s views. While the views of the child can be obtained at an early stage of the proceedings in a parties and child-​inclusive conference ordered pursuant to s 11F of the Act, they are usually ascertained prior to a final hearing from a Family Report ordered in accordance with s 62G of the FLA. In addition, an independent children’s lawyer (ICL) can express the views of a child to the court (discussed later in this Chapter at [5.330]–​[5.340]). Rule 15.02 of the FLR sets out the various ways a child’s evidence may be obtained, including affidavit, videoconference, closed-​circuit television and other electronic communication. Obtaining a child’s views by either 59

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oral evidence given by the child in court, or a judicial interview in chambers, is not generally encouraged by the Full Court: see Joannou v Joannou (1985) FLC 91-​642 (per Pawley, Fogarty and McGovern JJ). Nevertheless, in the case of ZN v YH and the Child Representative (2002) FLC 93-​101 Nicholson CJ commented that while there is a need for caution in having children meet with a judge in chambers, there are circumstances where it may be appropriate, in particular, interviews with older children or children who indicate that they would like to express their views directly to a judge. His Honour further commented that the court should be mindful of the provisions of the United Nations Convention on the Rights of the Child 1989 Art 12 that state that children have both a right to be heard and to have their views taken into account. In the recent case of Bondelmonte v Bondelmonte [2017] HCA 8, the High Court (per Kiefel, Bell, Keane, Nettle and Gordon JJ) cautioned that the views of the children should not be elevated to “something approaching a decisive status”. In dismissing an appeal against a father who had wrongly retained his sons in the United States, the court was satisfied that that the trial judge had taken the views of the sons into account (those views favouring the sons remaining with their father in the United States). However, the “weight” attributed to those views had to be balanced against the fact that there were “other issues”, such as the impact upon their (the sons’) separation from their mother and younger sister, which did not appear to have been thought through.

Parent–​child relationship [5.230]  Section 60CC(3)(b) of the FLA requires the court to consider “the nature of the relationship of the child with each of the child’s parents and with other persons including any grandparent or other relative of the child”. Obviously, a Family Report (or other single expert report) will assist the court apart from the evidence adduced by the parties or the ICL. 60

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Historically, the natural parent was likely to be preferred in an action against a non-​parent. In Storie v Storie (1945) 80 CLR 597 Latham CJ commented: prima facie the welfare of a young child demands that a parent who is in a position, not only to exercise parental rights, but also to perform parental duties, should have the custody of a child as against a stranger. The fact that a stranger can also provide a good (or even, I should say, a better) home is in such circumstances an element of only slight, if any, weight.

This presumption is not appropriate, however, under the FLA: see Re Hodak (1993) FLC 92-​421. In Rice v Miller (1993) FLC 92-​415 the Full Court (per Ellis, Lindenmayer and Bell JJ) stated that: parenthood, whilst a significant factor in determining the welfare of the child, does not establish a presumption or generate a preferred position in favour of a natural parent.

Similarly, while motherhood is a relevant consideration, there is no longer any presumption in favour of the mother over the father of a child: see Gronow v Gronow (1979) 144 CLR 513 (per Stephen J; Murphy, Mason, Wilson and Aicken JJ agreeing).

Extent of parental involvement and fulfilment of parental obligations [5.240] The current wording of s 60CC(3)(c) and (ca) of the FLA commenced in 2012 and, according to the Explanatory Memorandum, the purpose of these provisions is to ensure that, when the court is determining the best interests of the child, it takes into account whether a person has failed to fulfil their parental responsibility obligations in the past. These new provisions incorporate the criteria formerly found in the now repealed s 60CC(4) of the FLA and remove the former “friendly parent provision” that had required the court to consider the willingness of one parent towards the other in facilitating a child’s relationship with other parent. The removal followed research which suggested that the former provision had

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discouraged disclosures of family violence and child abuse by a party for fear of being cast as an unfriendly parent.

Likely effect of any changes [5.250]  Section 60CC(3)(d) of the FLA deals with the effect of any changes proposed to the child. The court must consider: the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

In In the Marriage of Raby (1976) 27 FLR 412 the Full Court (per Watson SJ, Fogarty and Lindenmayer JJ) stated: if the status quo is to be changed, the change itself and the reasons for the change require examination … Several matters may be relevant —​ the age of the child, the length of the status quo, its quality and, in particular, the nature of the adult-​child relationships developed within it. It is the welfare of the child, including his happiness, which is paramount. If the status quo is predictably more detrimental to the child’s welfare than proposed alternatives, a change may not only be desirable, it may be necessary.

The Full Court reiterated this view, following the commencement of the 2006 changes, in the case of Goode v Goode (2006) FLC 93-​286. In that case, the Full Court (per Bryant CJ, Finn and Boland JJ) stated its belief that the addition of para (a) to s 60B(1): “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” is not consistent with a preference of maintaining the status quo. Further, in Goode, the court indicated that because of s 65DAA of the FLA (requiring the court to consider the child spending equal time or substantial and significant time with each parent in situations where an order is being made for equal shared parental responsibility for the child): where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best

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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.

It is worth noting that the court is most concerned about the effect of the separation of siblings: see Mathieson v Mathieson (1977) FLC 90-​230 (per Fogarty J).

Relocation and spending time with a child [5.260] The FLA does not contain any presumption against a relocation (parenting) order, nor is there any presumption that favours the parent that the children have been primarily residing with. That said, 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.

It is the right of the child to spend time with both parents, if it is in the child’s best interests to do so. Section 60B(2)(b) of the FLA stipulates that: except when it is or would be contrary to a child’s best interests 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).

Under the former concept of access, there appeared to be a presumption (or perhaps an assumption) that access by the parent who was not living with the child was in the best interests of the child unless there is considerable evidence to the contrary. In Cooper v Cooper (1977) FLC 90-​234 Samuels JA approached this issue as follows: First, the paramount consideration is the welfare of the children. Secondly, prima facie the interests of the children would normally require that both parents have an opportunity to maintain some communication with them, and to play some role in their education and

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general training for adult life. Thirdly, the interests of the parent seeking access are relevant and are not to be ignored. Fourthly, to deny access to any parent is a serious step, which may well have grave consequences for the child’s development. Hence, fifthly, an order denying access will be made only in exceptional circumstances and upon solid grounds.

Nevertheless, any parental “right” in favour of spending time with the child was questioned by the High Court in M v M (1988) 166 CLR 69 (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): 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 for access which will in the opinion of the court best promote and protect the interests of the 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 a filial relationship with both parents.

It is worth noting that the case of M v M involved allegations of sexual interference by the parent who was not living with the child. In denying contact, the court held that it must determine whether, on the available evidence, there is a risk of sexual abuse occurring if an order was granted for the child to spend time with that parent and the magnitude of that risk. A court should not grant a parenting order in favour of a parent if it would expose the child to an unacceptable risk of sexual abuse. This view was endorsed in K v B (1994) FLC 92-​478 where a majority of the Full Court (per Ellis and Baker JJ) denied all contact between the father and the children, although there was a strong dissenting judgment by Kay J who supported supervised time with the father on the facts. The issues of relocation by a parent who is living with the children and the consequential impact upon contact between the children and the other parent, and the changes introduced by the FLRA in 1995 were considered by the Full Court in the case of B and B: Family Law Reform Act 1995 (1997) FLC 92-​755. In this case the wife sought to relocate from Cairns to Bendigo 64

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so that she could remarry. The husband, who had been enjoying regular and frequent contact with the two children of the marriage (aged 11 and nine at the time of the hearing), opposed the relocation. After considering the evidence, previous authorities and the impact of the amendments introduced by the FLRA, the trial judge held that he should make an order granting the wife the power to relocate with the children. The husband appealed, arguing, inter alia, that the trial judge was in error in his interpretation of the FLRA, in his use of previous authorities, and in the exercise of his discretion. The potential importance of this appeal prompted the then Federal Attorney-​General, the Honourable Daryl Williams QC, to intervene on behalf of the Commonwealth to make submissions in relation to the proper interpretation of the FLRA. In addition, the Human Rights and Equal Opportunity Commission was granted leave to intervene and make submissions with regard to the United Nations Convention on the Rights of the Child 1989 and the parent’s freedom of movement. In dismissing the appeal, the Full Court held (per Nicholson CJ, Fogarty and Lindenmayer JJ) that the trial judge had correctly applied the law and that his conclusions were within a proper exercise of the court’s discretion. Their Honours stated that: in our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Pt VII … starts from that essential premise and it remains the final determinant. The legislature has also made it clear that in that process the court is required to have regard to both the provisions contained in s 68F(2) [now s 60CC] and those contained in s 60B.

In B and B the Full Court acknowledged that circumstances often arise where it becomes necessary or desirable for one of the parents to relocate. In relation to the parent living with the child, the question of the importance to the children remaining with that parent in relocated circumstances needs to be weighed against any changes to the child’s environment and more particularly against any loss of or reduction in time and communication with the other parent. While the court reaffirmed that this conflict will be resolved by determining the best interests of the children, their 65

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Honours commented that the following considerations are likely to be relevant: • the degree and quality of the existing relationship between the

children and the parent living with the children (the court indicated that the pre-​FLRA cases still have value in relation to this consideration); • the degree and quality of the existing time and communica-

tion taking place between the children and the other parent; • the reason for the relocation (the court noted that this usually

relates to either economic or personal considerations); • the distance and permanency of the proposed change (the

court indicated that if an overseas relocation was in issue, it should consider the circumstances of that country and the distance and convenience of travel); and • the effects on the child, both positive and negative, of the pro-

posed relocation (the court noted that while factors will vary from case to case, it will obviously consider the wishes and ages of the children, the feasibility and cost of travel and alternative forms of contact). This issue was reconsidered by the Full Court (per Nicholson CJ, Ellis and Coleman JJ) in A v A: Relocation Approach (2000) FLC 93-​035, particularly in light of a parent’s “freedom of movement” right under the International Covenant on Civil and Political Rights 1966 Art 12. Their Honours held that in determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas, the following (revised) principles apply: • the welfare or best interests of the child, as the case may be

under the relevant legislation remains the paramount consideration but it is not the sole consideration; • a court cannot require the applicant for the child’s relocation

to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances;

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• it is necessary for a court to evaluate each of the proposals

advanced by the parties; • a court cannot proceed to determine the issues in a way that

separates the issue of relocation from that of residence and the best interests of the child; and • the evaluation of the competing proposals (properly identi-

fied) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests. Despite application of the revised approach to location in subsequent Family Court cases, the High Court has held that the question of relocation is to be determined by reference to the “paramountcy principle”: see U v U (2002) FLC 93-​ 112 (per Gummow and Callinan JJ; Mason CJ, McHugh and Hayne JJ agreeing; Gaudron and Kirby JJ dissenting). In dismissing the appeal, the majority held that: whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.

The High Court’s opportunity to consider the issue of relocation following the 2006 amendments to the FLA came in MRR v GR (2010) 240 CLR 461 (discussed at [5.310]).

Racial, cultural and religious issues [5.270]  Section 60CC(3)(g) and (h) of the FLA require the court to consider “the child’s maturity, sex, lifestyle and background” (s 60CC(3)(g)), and if the child is an Aboriginal or Torres Strait Islander, “the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture”: s 60CC(3)(h). Earlier, case law had recognised the issue of race and culture in determining the best interests of a child. In Sanders v Sanders (1976) FLC 90-​078 there was a custody dispute between a traditional Aboriginal mother and the non-​Aboriginal father. A majority of 67

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the Full Court (per Evatt CJ and Watson J) found that the trial judge placed too much weight upon the environmental and health issues associated with living in an Aboriginal community and too little weight on the benefit of the child’s emotional development with her mother and immediate family. Demack J dissented, however, and found that the trial judge was correct to place some weight on the environmental and health issues. In B and R and the Separate Representative (1995) FLC 92-​636 the Full Court (per Fogarty, Kay and O’Ryan JJ) found that the trial judge had erred in not permitting the separate representative to present evidence of the experiences of a number of Aboriginal children raised in non-​Aboriginal environments and the associated identification and esteem difficulties that can arise. Their Honours held that this evidence was proper and raised a relevant and potentially important issue in the determination of the best interests of the relevant child. In determining the best interests of a child, the court has also rejected any presumption to favour a religious household over a non-​religious household. Nevertheless, religious practices, and in particular whether or not the religion is non-​conventional or “closed”, are usually relevant factors to consider: see Plows and Plows (1979) FLC 90-​712 (per Asche SJ; Wood SJ, Gibson J agreeing). In Firth v Firth; Boyer (Interveners) (1988) FLC 91-​971 the Full Court (per Simpson, Joske and McCall JJ) stated that: in determining questions of custody and access it was permissible for a court to examine the tenets and practices of a particular faith and it was proper to take them into account and weigh them in the balance together with all other relevant factors in the case. If, when following this approach a court decided that it was detrimental to the welfare of the children for them to be brought up in a particular faith this did not constitute a breach of s 116 of the Constitution [the Commonwealth cannot legislate in respect of religion].

Sexual orientation of parents [5.280] Section 60CC(3)(m) of the FLA requires the court to consider “any other fact or circumstance that the court thinks 68

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is appropriate”. In relation to determining the best interests of a child, there is no presumption in favour of a heterosexual parent over a homosexual parent, whether the gay or lesbian parent be single or in a relationship. Nevertheless, it is usually considered by the court as a relevant factor in considering the welfare of the child: see Spry and Spry (1977) FLC 90-​271 (per Murray J); Doyle v Doyle (1992) FLC 92-​286 (per Hannon J). In In the Marriage of N (1977) FLC 90-​208 the Full Court (per Evatt CJ; Ellis and Strauss JJ agreeing) stated that the homosexuality of a party: was a fact for his Honour to weigh in the balance, not because of the suggestion of immorality but because the relationship could be relevant if it were likely to affect the mother’s ability to be a parent or if it were likely to affect the children adversely. There is no evidence of it here, but it is a factor, which nevertheless could cause problems in the future for the mother, for the children and for her relationship with the children.

In In the Marriage of L (1983) FLC 91-​353 Baker J developed the following eight considerations, which the court should apply in cases where an applicant seeking custody or access is gay or lesbian: • whether children raised by their homosexual parent may

themselves become homosexual or whether such an event is even likely; • whether the child of the homosexual partner could be stig-

matised by peer groups, particularly if the parent is known in the community as homosexual; • whether a homosexual parent will show the same love and

responsibility as a heterosexual partner; • whether homosexual parents will give a balanced sex educa-

tion to their children and take a balanced approach to sexual matters; • whether or not children should be aware of their parents’ sex-

ual preferences; • whether children need a parent of their own sex to model

themselves on; 69

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• whether the children need both a male and a female parent

figure; and • the attitude of the homosexual parent to religion, particularly

if the doctrines, tenets and beliefs of the parties’ church are opposed to homosexuality. This criteria is not without its critics, and it is unlikely to carry much strength today. In the article “The Changing Concept of the Family —​The Significance of Recognition and Protection” published in the Australian Journal of Family Law in 1997, the then Chief Justice Alastair Nicholson stated that: sexual orientation is no basis upon which to make assumptions about the quality of an individual’s relationships or the parenting capacities of a person. That is why sexual orientation, in and of itself, has been held to be an irrelevant matter in disputes about children under the Family Law Act, unless it somehow impinges upon the best interests of the child … the correctness of the L and L approach has not been the subject of challenge before a Full Court. I cannot say what a Full Court would do with such an issue, but I would hope that the passage of years and the resulting change in community attitudes would be reflected in the court’s consideration of the matter.

Accordingly, the court now appears to follow these basic principles: • being homosexual will not disqualify a parent (or other per-

son) from obtaining a parenting order; • instead, the court must look to the parenting ability of such a

person; • some earlier cases allowed children to live with a homosex-

ual parent with the condition attached that the parent not demonstrate affection to their partner in the presence of the children. This stipulation would no longer be made by the court; and • the focus appears to be that the court will simply look at s 60CC

factors, thus treating a homosexual parent in the same manner as any other person seeking to have the child live with him or her, or spend time with the child. 70

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Child abuse [5.290]  Child “abuse” is defined in s 4(1) of the FLA to include:

(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.

Section 67Z(2) of the FLA provides that where a party in FLA proceedings alleges that a child has been abused or is at risk of abuse, that party must file a notice with the court and must arrange for a copy of the notice to be served on the alleged abuser or potential abuser: also see FLR r 2.04. An affidavit must accompany the notice stipulating the details of the abuse or the risk of abuse. Once the prescribed notice has been filed the Registry Manager must as soon as possible notify the relevant child welfare authority: FLA s 67Z(3). The filing of a notice of risk by all parties is now mandatory in all parenting matters in the Federal Circuit Court: FCCR r 22A.02. Part VII Div 8 subdiv D of the FLA deals specifically with allegations of child abuse. As stated previously, in determining the best interests of a child, the court is required to consider, as a primary consideration under s 60CC(2)(b) of the FLA: the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In the case of M v M (1988) 166 CLR 69 the High Court (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) unanimously stated that in the context of child sexual abuse: 71

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the court should not make a positive finding that an allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned [by Dixon J] in Briginshaw v Briginshaw (1938) [60 CLR 336] … No doubt there will be some cases in which the court will be able to come to a positive finding that the allegation is well-​founded. In all but the extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access … The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access.

This has become known as the “unacceptable risk”. In the decision of Johnson v Page (2007) FLC 93-​344, the Full Court (per May, Boland and Stevenson JJ) referred to an article written by retired judge, Hon John Fogarty AM entitled “Unacceptable Risk —​ A Return to Basics” published in the Australian Journal of Family Law in 2006. In this article, the Hon John Fogarty argues that a number of principles emerge from the High Court’s decision in M v M. Those principles are:

1. The decisive issue is the best interests of the children.



2. “Unacceptable risk” is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.



3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.



4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.



5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.



6. The onus of proof in reaching that conclusion is the ordinary civil standard.



7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court

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may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

The Full Court also observed that the Court should not make a positive finding of unacceptable risk (particularly in the context of alleged sexual abuse discussed later in this Chapter) unless it was satisfied in accordance with s 140 of the Evidence Act 1995 (Cth). The issue of unsupported allegations of sexual abuse was considered by the Full Court in Re David (1997) FLC 92-​776 (per Nicholson CJ, Lindenmayer and Buckley JJ). In this case the trial judge found that the mother’s allegations against the father were both false and unfounded (a point the mother’s counsel effectively conceded during the hearing). The trial judge also found that the mother had deliberately destroyed the good relationship that had existed between the father and the child and had subjected the child to treatment that may well have had a detrimental effect on him. Consequently, the trial judge determined that the child’s best interests required a residence order in favour of the father, and the subsequent appeal by the mother was dismissed.

Family violence [5.300]  Family violence, as defined in s 4AB of the FLA, “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”. Examples of family violence include:

(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

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(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 [FLA s 4AB(2)].

In determining the best interests of the child, s 60CC(3)(j) of the FLA requires the court to consider “any family violence involving the child or a member of the child’s family”. In In the Marriage of JG and BG (1995) FLC 92-​515, Chisholm J noted that: in contrast with criminal proceedings or proceedings in tort, it is not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims. But family violence is by no means irrelevant, as it is with divorce: it is to be taken into account if it is relevant to the determination of the child’s welfare, which is the paramount consideration. The standard of proof is the civil standard of proof on the balance of probabilities, not the criminal standard of proof beyond reasonable doubt.

If a family violence order applies, s 60CC(3)(k) of the FLA requires the court to consider: • the nature of the order; • the circumstances in which the order was made; • any evidence admitted in proceedings for the order, • any findings made by the court in, or in proceedings for, the

order; and • any other relevant matter.

Part VII Div 11 of the FLA deals specifically with family violence. Sections 68P–​68T deal with the interaction between State and Territory family violence orders and parenting orders for a person

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spending time with a child. If the court grants an order which is inconsistent with an existing family violence order, it must identify the inconsistency and provide an explanation of how the contact with the child provided by the order is to take place: FLA s 68P(2).

Spending equal time or substantial and significant time with each parent [5.310]  If an order is made for the parents to have equal shared parental responsibility, then pursuant to s 65DAA of the FLA, the court is required to consider whether the child’s best interests would be served by making an order that he or she spend equal time (s 65DAA(1)) or alternatively substantial and significant time (s 65DAA(2)) with each of the child’s parents. Either outcome requires the court to consider whether the children spending equal time (or substantial and significant time in lieu) with each of the parents would be, given the circumstances, in the “best interests of the child” (see above) and is “reasonably practicable” (see below). Section 65DAA(3) prescribes that a child will be taken to spend “substantial and significant time” with a parent only if:

(a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and (b) the time the child spends with the parent allows the parent to be involved in:



(i) the child’s daily routine; and



(ii) occasions and events that are of particular significance to the child; and



(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

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The court may consider other factors in addition to the above list: FLA s 65DAA(4). In considering the “reasonable practicality” issue, s 65DAA(5) of the FLA requires the court to have regard to the following criteria:

(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.

In MRR v GR (2010) 240 CLR 461 the High Court (per French CJ, Gummow, Hayne, Kiefel and Bell JJ) stated that the presumption (for equal shared parental responsibility) contained in s 61DA(1) of the FLA is not determinative of the questions arising under s 65DAA. What s 65DAA(1)(b) of the FLA requires is a “practical assessment” of whether such a parenting outcome is feasible. The High Court’s interpretation of the mechanics of Pt VII of the FLA does not change the “triggering effect” of s 65DAA if the presumption for equal shared parental responsibility arises pursuant to s 61DA of the FLA. While s 61DA requires a consideration of s 60CC “factors”, it is clear that s 65DAA, and the issue of “reasonable practicability”, is not solely determined by a consideration of the s 60CC “factors”. Some of these factors may, of course, be relevant. The capacity of the parents to encourage a meaningful relationship between the child and the other parent would be one example. That said, there are a number of other factors that are not specified in s 60CC of the FLA, such as opportunities for accommodation, employment and extended family support, which would arguably be relevant to issues of reasonable practicability. Consequently, the High Court held that these “reasonable practicability” factors must be considered separately. 76

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Independent representation of children [5.320]  Section 68L(2) of the FLA gives the court a broad power to order that a child be independently represented in any proceedings under the Act. If the proceedings relate to the Family Law (Child Abduction Convention) Regulations 1986 (Cth), the court may only make an order that the child be independently represented by a lawyer if it considers there are exceptional circumstances that justify it doing so: FLA s 68L(3). In making such an order, the court also has the power under this provision to “make such other orders as it considers necessary to secure that representation”, although this power must be read in the context of the FLA as a whole: see Re JTT; Ex parte Victoria Legal Aid (1998) FLC 92-​812 (per Gaudron and Hayne JJ). The court may make the independent representation order of its own initiative, if it appears that the child in question ought to be represented, or on the application of the child, an organisation concerned with the welfare of children or “any other person”: FLA s 68L(4). Where the court makes an order that a child be independently represented, it may request that the representation be arranged by a legal aid body that is a relevant authority under FLA s 116C: FLR r 8.02. It should be noted that the court cannot order legal aid to fund the independent representation of a child and nor does it have the power to review the administrative decisions of a legal aid body: see Heard v De Laine (1996) FLC 92-​675 (per Ellis, Baker and Chisholm JJ). Generally speaking, and subject to means test considerations, the costs of the separate representative are paid by the parties to the proceedings. In Re JTT; Ex parte Victoria Legal Aid, Hayne J (Gaudron J agreeing) confirmed that the court has power under the FLA to ensure that a child can be independently represented whether by application of its power to make an interim spousal or child maintenance award or an interim adjustment of property. It is worth noting that once appointed, the ICL may request the court to order a parent or other relevant person to make the child available for a psychiatric or psychological examination: FLA s 68M(2). The purpose of such an examination is to enable a report 77

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to be compiled for use by the child’s representatives in the related proceedings.

Role of the ICL [5.330]  Section 68LA(2) of the FLA provides direction on the general nature of the role of the ICL. The ICL must form an independent view of what is in the best interests of the child and inform the court of that view. The ICL must also act in relation to the proceedings in what he or she believes to be in the best interests of the child. Section 68LA(3) states that if an ICL is satisfied that a particular course of action is in the best interests of the child, the lawyer must make a submission to the court suggesting the adoption of that particular course of action. The precise role of the ICL is clarified in s 68LA(4) of the FLA which provides that an ICL is not the legal representative of the child and is not obliged to act on the child’s instructions in relation to the proceedings. The specific duties of the ICL are set out in s 68LA(5) of the FLA. This section incorporates the basic elements of the judgment by the Full Court of the Family Court in the case of P and P (1995) FLC 92-​615. The section sets out that the ICL must: • act impartially in dealings with the parties to the proceedings

(s 68LA(5)(a)); • ensure that any views expressed by the child in relation to the

matters to which the proceedings relate are fully put before the court (s 68LA(5)(b)); • if a report or other document that relates to the child is to be

used in the proceedings: (i) analyse the report or other document to identify those matters in the report or other document that the ICL considers to be the most significant ones for determining what is in the best interests of the child; (ii) ensure that those matters are properly drawn to the court’s attention (s 68LA(5)(c)); 78

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• endeavour to minimise the trauma to the child associated

with the proceedings (s 68LA(5)(d)); • facilitate an agreed resolution of matters at issue in the pro-

ceedings to the extent to which doing so is in the best interests of the child: s 68LA(5)(e).

Criteria for appointing an ICL [5.340]  Given that the FLA does not provide any statutory criteria for the appointment of an ICL, the following guidelines were suggested by the Full Court in Re K (1994) FLC 92-​461 (per Nicholson CJ, Fogarty and Baker JJ): • cases involving allegations of child abuse, whether physical,

sexual or psychological; • cases where there is an apparently intractable conflict between

the parents; • cases where the child is apparently alienated from either one

or both of the parents; • where there are real issues of cultural or religious differences

affecting the child; • whether sexual preferences of either or both of the parents or

some other person having significant contact with the child are likely to impinge upon the child’s welfare; • where the conduct of either or both of the parents or some

other person having significant contact with the child is alleged to be antisocial to the extent that it seriously impinges upon the child’s welfare; • where 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 children; • any case in which, on the material filed by the parents, nei-

ther seems a suitable custodian; • any case in which a child of mature years is expressing strong

views, the giving of effect to which would involve changing 79

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a longstanding custodial arrangement or a complete denial of access to one parent; • where one of the parties proposed that the child will either be

permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for practical purposes exclude the other party from the possibility of access to the child; • cases where it is proposed to separate siblings; • custody cases where none of the parties are legally represented; • applications in the courts of welfare jurisdiction relating

in particular to the medical treatment of children when the child’s interests are not adequately represented by one of the parties; and • in the circumstances of the case, it was appropriate for a sep-

arate representative to have been appointed (however, the failure by a trial judge to appoint a separate representative should not lead to a reversal of the orders made).

Parenting plans [5.350]  The FLA specifically encourages parents to enter into parenting plans: FLA s 63B. Parenting plans are intended to provide a simple, informal process for formalising agreements about parenting between parents. Formally, a parenting plan is defined in s 63C of the FLA as an agreement that is in writing, signed and dated, is or was made between the parents of the child and deals with certain matters. Parenting plans can include child support provisions (although to be effective for child support purposes, the plan must be combined with the child support agreement). Changes to the FLA that commenced in June 2012 impose an obligation on lawyers, family dispute resolution practitioners, family consultants and counsellors to advise parents that they can consider a parenting plan. If they advise on such a plan, there is a long list of compulsory information that must be given to parents, which includes the obligation to explain, in simple language, the 80

Chapter 5  Children under the Family Law Act 1975

availability of programs designed to help parents if they experience difficulties in complying with their obligations under the plan. Parenting plans may be varied or revoked by further written agreement between the parties: FLA s 63D. Unlike “child agreements” that existed under the pre-​FLRA period, and “parenting plans” registered prior to 2004, “parenting plans” can no longer be registered with a court. Consequently, they are not enforceable by a court like an “order” is. Nevertheless, it is important to note that under s 65DAB of the FLA, if the court is considering making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child. Section 64D of the FLA has the effect of making parenting orders subject to the terms of any later parenting plan, unless the parenting order specifically provides this not to be the case. However, there must be “exceptional circumstances” in existence for the court to make that stipulation.

Parenting compliance regime [5.360]  The parenting compliance regime was introduced by the Family Law Amendment Act 2000 (Cth) and significantly revised by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The three-​stage regime involves: • explanation (Stage 1): the explanation and understanding of

court orders and parenting plans (FLA s 65DA); • education (Stage 2 —​for early and less serious breaches): the

power to require a person in breach to undertake prescribed parenting education courses (s 70NEB); and • enforcement (Stage 3 —​for serious and/​ or repeated

breaches): the power to impose traditional civil enforcement 81

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procedures or a change to the parenting order that has been contravened (including additional contact if relevant): s 70NFB. Part VII, Div 13A of the FLA deals with Stages 2 and 3 of the compliance regime. Under Stage 2, the court now has the power to order a person in breach of a child-​related order to undertake a “post-​separation parenting program” (see FLA ss 70NEB and 70NEG), in addition to ordering compensatory time with the child if relevant (see FLA s 70NDB), as a precursor to imposing the following Stage 3 penalties: • imprisonment for a specified period of 12 months or less

(ss 70NFB(2)(e) and 70NFG); • a community service order under the law of a participating

State or Territory (s 70NFC); • the imposition of a fine not exceeding 60 penalty units

(s 70NBF(2)(d)); • the imposition of a bond for a period of up two years

(s 70NFE); and/​or • various costs orders (for legal costs and as compensation for

expenses associated with the contravention): s 70NEB. In addition, or in the alternative, the court may also vary a parenting order under s 70NBA(1) of the FLA whether the contravention has been proved or not, or if it has been proven and a reasonable excuse is found. Prior to imposing a sanction (with the exception of varying a parenting order), the court must be satisfied that the person in breach does not have a reasonable excuse for the contravention: FLA ss 70NAE and 70NDB. The standard of proof to be applied in determining whether a person in breach had a reasonable excuse or not is proof on the balance of probabilities: FLA s 70NAF.

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Chapter 6

Child Maintenance [6.10]  Areas covered: • child maintenance under the Family Law Act 1975 (Cth) (FLA) • impact of the Child Support (Registration and Collection) Act

1988 (Cth) (CS(RC)A) • child support under the Child Support (Assessment) Act 1989

(Cth) (CSAA).

Child maintenance under the Family Law Act 1975 Parental duty to maintain children: s 66C [6.20]  Not surprisingly, s 66C of the FLA stipulates that the primary liability to maintain a child rests with the parents. A parent includes both a biological and adoptive parent: FLA s 4. As to children born as a result of artificial conception procedures, a biological parent who donated sperm will not be a “parent” unless he falls within the provisions of s 60H of the FLA: see W v G (1996) 20 Fam LR 49 (per Hodgson J); B v J (1996) FLC 92-​716 (per Fogarty J); Re Patrick; An Application concerning Contact (2002) FLC 93-​096 (per Guest J); and Re Mark; An Application relating to Parental Responsibilities (2003) FLC 93-​173 (per Brown J). Under the pre-​1988 FLA, some difficulties arose concerning the appropriate priorities that should be considered in respect of child maintenance. This question of priorities has been settled (to some extent) by s 66C(2) of the FLA: also see Ganter v Grimshaw

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(1998) FLC 92-​810 (per Ellis, Lindenmayer and Jordan JJ). This section stipulates three rules which apply: • the duty to maintain a child is not of lower priority than the

duty of the parent to maintain any other child (eg a child of a subsequent marriage or relationship) or any other person (eg the spouse of a subsequent marriage) (s 66C(2)(a)); • the duty of a parent to maintain a child has priority over all

commitments other than those necessary to enable the parent to support himself or herself and any other child or person whom he or she has a duty to maintain (s 66C(2)(b)); and • the duty of a parent to maintain a child is not affected either

by the duty of any other person to maintain a child (eg a step-​ parent), or by any entitlement of the child or other person to an income-​tested social security benefit: s 66C(2)(c). The liability of step-​parents is secondary to the primary duty of parents: FLA s 66D(2). A step-​parent is defined in s 4(1) of the FLA as anyone who: • is not a parent of the child; and • is or has been married to a parent of a child; and • treats, or at any time during the marriage treated, the child as a

member of the family formed with the parent. Section 66M(3) of the FLA lists the criteria for the court to consider: • length and circumstances of the marriage to the relevant par-

ent of the child; • the relationship which existed between the step-​parent and

the child; • 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. Section 66N of the FLA sets out the matters the court considers when determining the financial contribution to be made, if any, by the step-​parent. Apart from again stressing that the primary duty lies with the child’s parents, the considerations are similar 84

Chapter 6  Child Maintenance

to those the court considers in relation to the parents (discussed at [6.60]). An order made pursuant to the provisions of ss 66M and 66N of the FLA is a “child maintenance order” for the purposes of s 66L of the FLA (maintenance for a child 18 or over is discussed later in this Chapter at [6.70]): see Keltie v Keltie and Bradford (2002) FLC 93-​106 (per Nicholson CJ, Ellis and Finn JJ). Applications for child maintenance cannot be made against “foster parents”: see Tobin v Tobin (1999) FLC 92-​848 (per Finn, Kay and Chisholm JJ).

Child Support (Assessment) Act 1989: s 66E [6.30]  Section 66E of the FLA prohibits the Family Court or the Federal Circuit Court from hearing a child maintenance application if the matter is one which should be assessed administratively under the child support legislation (discussed later in this Chapter at [6.230]).

Who may apply for an order: s 66F [6.40]  According to s 66F(1) of the FLA an application for child maintenance may be sought by either or both of the child’s parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child. Interestingly, s 66F(2) of the FLA provides that if a child is “under the guardianship, or in the care … of a person under welfare law”, then the applicant list is restricted to: • the child; • the parent of the child who has the daily care of the child; • a relative of the child who has the daily care of the child; or • a child welfare officer of the relevant State or Territory.

In addition, s 69E of the FLA requires an Australian connection for jurisdictional purposes. An application for child maintenance must be in accordance with the prescribed form: FLR rr 2.01 and 5.01; FCCR rr 2.01–​2.04. 85

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Court’s power to make an order: s 66G [6.50]  Section 66G of the FLA gives the court the power to “make such child maintenance order as it thinks proper”.

Relevant considerations: ss 66H–​66K [6.60]  The paramountcy principle does not apply to child maintenance cases: see Tobin v Tobin (1999) FLC 92-​848 (per Finn, Kay and Chisholm JJ). Section 66H of the FLA sets out the approach to be adopted by the court in child maintenance proceedings: • first, consider the financial support necessary for the mainte-

nance of a child (this is expanded on in s 66J); and • secondly, determine the financial contribution, or respective

financial contributions, towards the financial support necessary for maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in s 66K). According to s 66J(1) of the FLA, the court must take the following matters (and no others) into account: • The primary duty of parents to maintain their child or chil-

dren: FLA ss 66B and 66J(1)(a). • The child’s needs —​the proper needs of the child which take

into account the child’s age, education and training and any “special needs”: FLA s 66J(1)(b) and (2). In addition, the court may also take into account the relevant findings of published research in relation to the maintenance of children (in particular the “Lee Scale”): FLA s 66J(2)(b); also see Coon v Cox (1994) FLC 92-​464 (per Nicholson CJ); and Streets v Streets (1994) FLC 92-​509 (per Nicholson CJ, Ellis and Fogarty JJ). • The child’s income and capacity to meet his or her own

needs: FLA s 66J(1)(c) and (3). The court is required to have regard to the capacity of the child to earn or derive an income but to disregard the income of “any other person” (eg a new de facto partner of the parent) unless there are “special circumstances” or any entitlement of the child, or any other person, to an income-​tested social security benefit. In Mee v Ferguson (1986) 86

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FLC 91-​716 the Full Court (per Asche ACJ, Fogarty and Cook JJ) noted that this provision espouses the philosophy that a child who can support himself or herself, or who can at least make a contribution towards his or her own maintenance, should do so where this is reasonable in all the circumstances: also see In the Marriage of W (1980) FLC 90-​872 (per Nygh J). Section 66K of the FLA sets out the matters which must be taken into consideration in determining the contribution that a party should make. Apart from considering the parental primary duty (s 66K(1)(a)), there are four other specific matters which the court must take into account: • The income, earning capacity, property assets and financial

resources of the party or each of those parties: FLA s 66K(1)(b). • The commitments of the party, or each of those parties, that

are necessary to enable the party to support himself or herself or any other child or another person that the person has a duty to maintain: FLA s 66K(1)(c); also see In the Marriage of Ryan (1988) FLC 91-​970 where Lindenmayer J found that the father had no “duty” (under Queensland law) to support his new de facto partner or her children. • The direct and indirect costs incurred by the parent or other

person with whom the child lives in providing care for the child: FLA s 66K(1)(d). • Any special circumstances which, if not taken into account in

the particular case, would result in an injustice or undue hardship to any person: FLA s 66K(1)(e). Section 66K(4) of the FLA stipulates that there are two matters, which must be disregarded by the court: • first, any entitlement of the child, or the person with whom

the child lives, to an income-​ tested social security benefit (s 66K(4)(a)); and • secondly, the income, earning capacity, property and financial

resources of any person who does not have a duty to support the child, or if so, is not a party to the proceedings unless, in the special circumstances of the case, the court considers it appropriate to have regard to them: s 66K(4)(b). 87

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Children aged over 18 years: s 66L [6.70]  A court must not make a child maintenance order in relation to a child 18 years and over: FLA s 66L. This prohibition does not apply if the court is satisfied that the provision of maintenance is necessary to enable the child to complete his or her education or because of a mental or physical disability of the child: FLA s 66L(1) and (2). In Tuck v Tuck (1981) FLC 91-​021 the Full Court (per Evatt CJ and Murray J) stated 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.

Education [6.80]  In relation to the first limb (ie completion of education) the Family Court has held that (as with spousal maintenance) the guiding principle in a child maintenance application of this kind is “what in all the circumstances is reasonable”, and this does not require an adult child to divest himself or herself of all assets and capital in order to qualify for such an order: see Cosgrove v Cosgrove (No 2) (1996) FLC 92-​701 (per Nicholson CJ, Finn and Maxwell JJ). In this case a 24-​year-​old was able to pursue a child maintenance application against his father seeking financial assistance to complete his Year 12 secondary education despite having some equity in a Queensland property. Education includes any form of training for a skill (see In the Marriage of O’Dempsey (1990) FLC 92-​178 (per Butler J)) and may include a combined degree: see In the Marriage of Campbell (1988) FLC 91-​960.

Disability [6.90]  In relation to the second limb (ie mental or physical disability) the Family Court has held that there is a greater onus upon an applicant to satisfy the court that an adult child has little or 88

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no capacity to earn or derive income because of the mental or physical disability: see FM v FM (1997) FLC 92-​738 (per Registrar McGrath). This onus is similar to the onus upon any other adult seeking spousal maintenance pursuant to s 72 of the FLA (discussed in Chapter 7). In Re AM (Adult Child Maintenance) (2006) FLC 93-​262 Carmody J held that it was immaterial to the issue of liability “whether the relevant disability arose before adulthood or not”. He further commented that: The language of s 66L is plain and unambiguous. There is no express age based limitation and none should or needs to be implied. The section does not refer to a “childhood” disability. If such restrictions were intended it could and should have been made clear as crystal. Equally, there is no reason for believing that “temporary” disabilities are within the ambit of the section while “permanent” ones are outside its confines. No distinction is apparently drawn between “partial” or “total” disabilities either.

Unless a maintenance order is stipulated to continue, it will cease upon the child’s 18th birthday: FLA s 66L(3).

General powers of the court: s 66P [6.100]  Section 66P of the FLA sets out the general powers of court in relation to child maintenance. These include the power to: • order a lump sum payment, by instalments or in one amount

(s 66P(1)(a)); • order

periodic payment (weekly, monthly or yearly) (s 66P(1)(b));

• order a transfer of property (s 66P(1)(c)); • order that payment of an amount ordered be wholly or partly

secured (s 66P(1)(d)); • order that any necessary instrument be signed or document

produced (s 66P(1)(e)); • order payment to a specified person, public authority or into

court (s 66P(1)(f)); • make a permanent or interim order (s 66P(1)(g));

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• make an order imposing terms and conditions (s 66P(1)(h)); • make an order by consent (s 66P(1)(i)); • make any other order that the court considers appropriate

(s 66P(1)(j)); and • make an order under Pt VII Div 7 of the FLA at any time:

s 66P(1)(k).

Urgent orders: s 66Q [6.110] Where the court considers that a child is in immediate need of financial assistance and it is not practicable in the circumstances to determine what order (if any) should be made, the court may make an interim order: FLA s 66Q. Please note that an urgent order can be sought for all children notwithstanding s 66E of the FLA.

Specification in orders: s 66R [6.120]  Section 66R of the FLA deals with the specification in court orders concerning payments for child maintenance purposes. In other words, the court has to ensure that the child maintenance component is expressly set out in the court order. The relevant court should also differentiate the child maintenance component from property orders and spousal maintenance orders.

Modification of order: s 66S [6.130]  Section 66S of the FLA provides the mechanism for the modification of child maintenance orders. The court may discharge, suspend, revive or vary a child maintenance order: FLA s 66S(2). The court may also modify the order with the consent of all the parties to the first final order, unless that allows any entitlement of a child or other person to an income-​tested pension, allowance or benefit, to affect the duty of that child’s parents to maintain the child: FLA s 66S(1A) and (1B). A child maintenance 90

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order may be dealt with under this section on any number of occasions provided that on each occasion the relevant ground is established. In considering whether to deal with a maintenance order under s 66S of the FLA, the court is required by s 66S(10) to have regard to the ordinary provisions for the making of a child maintenance order. For variation purposes, the grounds upon which a court may increase or decrease a child maintenance order are set out in s 66S(3) of the FLA. Broadly speaking, these grounds are: • change in circumstances (of the child, payer or payee)

(s 66S(3)(a)); • change in the annual cost of living (s 66S(3)(b)); • that the order was made by consent and the amount ordered to

be paid is now not proper (s 66S(3)(c); also see s 66S(6)); and • that at the time the order was made either material facts

had been withheld from the court or material evidence was false: s 66S(3)(d).

Cessation of order: ss 66T–​66V [6.140]  As stated in s 66L(3) of the FLA (discussed earlier in this Chapter at [6.90]), a child maintenance order stops being in force when the child turns 18, unless it was expressed to continue in force after then: FLA s 66T. The order also stops upon the death of either the child, the payer or the payee. In addition, the order stops when the child is adopted, marries or enters into a de facto relationship: FLA s 66V. Moreover, where a child maintenance order is made under s 66L of the FLA, it ceases being in force if the relevant child ceases the education or ceases to have the mental or physical disability: FLA s 66VA(1). If such a circumstance occurs, the person to whom the child maintenance is payable must, as soon as is practicable, inform the person required to pay it of that change in circumstance, and any amounts of money paid after the order ceases to be in force may be recovered: FLA s 66VA(2) and (3). 91

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Parenting plans [6.150]  Under s 63G of the FLA, the child maintenance provisions in a registered parenting plan take effect as if they were a court order. The parties may revoke or vary the original agreement by registering a further agreement unless it allows any entitlement of a child or another person to an income-​tested pension, allowance or benefit, to affect the duty of that child’s parents to maintain the child: FLA s 66SA.

Maintenance of ex-​nuptial children in WA [6.160]  The provisions in the FLA relating to child maintenance have no application in WA in relation to ex-​nuptial children. Such an application is possible, however, under Pt 5 Div 7 (ss 133–​141) of the Family Court Act 1997 (WA), unless an application could be made for the administrative assessment of child support under the child support legislation (discussed later in this Chapter at [6.230]): Family Court Act 1997 (WA) s 117.

Impact of the Child Support (Registration and Collection) Act 1988 [6.170] For practical and political reasons, the Child Support Scheme was introduced in the late 1980s in two stages. The stages are apparent from the fact that there are two separate Child Support Acts: • registration and collection of payments; and • assessment of support (in lieu of the court).

Child Support Agency: Pt II [6.180]  Stage 1 of the Child Support Scheme commenced operation on 1 June 1988: see CS(RC)A; in WA see also Child Support (Adoption of Laws) Act 1990 (WA). This legislation introduced a 92

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system of registration and collection of child maintenance orders through the Child Support Agency (CSA). The CSA is a separate entity that was initially located within the Australian Taxation Office. It is currently located within the Department of Human Services.

Registration of maintenance liabilities: Pt III [6.190]  The effect of ss 17 and 18 of the CS(RC)A is that all child maintenance orders and spousal maintenance orders (or agreements) must be registered with the CSA. The only exception to the registration requirement is an urgent maintenance order: FLA ss 66Q and 77. The payee of a “registrable maintenance liability” must furnish the CSA with the prescribed form within 14 days of the date of the making of the order unless that person elects, by giving the Registrar a notice, not to have the registrable maintenance liability enforced under this Act: CS(RC)A s 23(2) and (3). The payer is also obliged to provide the CSA with a prescribed form within the same 14-​day period, unless the payee validly elects not to have the child maintenance collected by the agency: CS(RC)A s 23(5). It is a strict liability offence to fail to lodge the prescribed form within the stipulated time limits: CS(RC)A s 23(7). Once the prescribed forms have been lodged, the CSA will lodge particulars of the liability in the Child Support Register: CS(RC)A s 26. The effect of registration is that the amounts payable pursuant to the maintenance liability become a debt due to the Commonwealth: CS(RC)A s 30 (but as discussed at [6.210], since 1 January 2007 it is now possible for a payee to personally enforce the debt, rather than the CSA). A payee may elect (independently or jointly with the payer) to have the liability no longer enforced under the CS(RC)A (ie opt out of collection by the CSA in favour of private collection) by lodging the prescribed form with the CSA: CS(RC)A ss 38 and 38A. In addition, the Registrar of the CSA may decide that an enforceable maintenance liability should no longer be enforced under the CS(RC)A if all the following conditions are met: 93

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• the payer is taken (under the Child Support (Registration and

Collection) Regulations 1988 (Cth)) to have a satisfactory payment record in relation to the previous six months (CS(RC)A s 38B(1)(a)); • the Registrar is satisfied that the payer is likely to continue

to have a satisfactory payment record (s 38B(1)(b)); and the Registrar is satisfied that a decision under s 38B(1) of the CS(RC)A is appropriate in relation to the liability: s 38B(1)(c). If a registered maintenance liability is not enforceable because of the application of either s 38A or s 38B of the CS(RC)A, the payee may, nevertheless, apply to the Registrar of the CSA for the liability to again become enforceable provided the payer has an unsatisfactory payment record and the Registrar is satisfied that special circumstances exist which make it appropriate to grant the application: CS(RC)A s 39.

Collection of maintenance liabilities: Pt IV [6.200] Where the payer of the child support is an employee, then the CSA is directed to collect the amount payable by deduction from salary or wages: CS(RC)A s 43(1). This is referred to as automatic withholding. It is possible for the payer to avoid the automatic withholding requirement by convincing the CSA that automatic withholding would not be an efficient collection method and that regular and timely payments would be made: CS(RC)A s 44. The employer of the payee is under considerable obligations in relation to the collection of the liability: CS(RC)A ss 45–​65.

Payment and recovery of child support debts: Pt V [6.210]  The Registrar may impose or remit penalties for late payment of child support: CS(RC)A ss 66–​69. The penalty which may apply is the same as the one imposed for the time being by the Income Tax Assessment Act 1936 (Cth). Where parenting arrangements change, the Registrar may also offset child support debts between a payer and a payee: CS(RC)A s 71AA. It is worth noting 94

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that s 72C of the CS(RC)A allows the Registrar to apply to the Federal Circuit Court (or if appropriate the Family Court) to set aside or otherwise restrain any transaction which purports to defeat a child support liability. In other words, a liable party cannot just sell up and give away his or her money without redress. Child support debts “are payable to the Registrar in the manner and at the place prescribed” and “may be sued for and recovered by the Registrar or a Deputy Registrar using his or her official name”: CS(RC)A s 113(1)(a) and (b). The section further provides that such debts “may be recovered in: (i) a court having jurisdiction for the recovery of debts up to the amount of the debt; or (ii) a court having jurisdiction under this Act”: CS(RC)A s 113(1)(c). A payee can now personally sue for a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt “at least 14 days before instituting the proceeding” (s 113A(1)(a)) or “in exceptional circumstances —​within such shorter period as the court allows”: CS(RC)A s 113A(1)(b). If the payee is successful in the action, and the court makes an order for payment of an amount by the payer of the liability, then the payment must be made to the Registrar who will then pay the amount received to the payee: CS(RC)A s 111F. Note that under s 111G of the CS(RC)A, the Commonwealth is not liable for costs in any enforcement proceedings initiated by the payee against the payer where the Registrar is not a party. Clearly, the CS(RC)A anticipates that enforcement proceedings may be commenced in a State or Territory civil court under the rules applicable to recovering judgment debts in that relevant jurisdiction. Alternatively, proceedings may be commenced in the Federal Circuit Court under the FCCR (or if appropriate, the Family Court or a court of summary jurisdiction under the FLR). The relevant enforcement rules are contained in Pt 25B of the FCCR or Ch 20 of the FLR. Enforcement measures include attachments of earnings and debts, the sale of real property, the 95

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seizure and sale of personal property (apart from certain prescribed personal property), and the sequestration of the debtor’s estate (ie bankruptcy). In Deputy Child Support Registrar v Harrison (1996) FLC 92-​656 the Full Court (per Nicholson CJ, Fogarty and Kay JJ) confirmed that the Registrar may seek to enforce a debt by suing in a court exercising State civil jurisdiction or by seeking the issue of an enforcement summons (now called an “enforcement warrant”) under r 20.01 of the FLR (and Pt 25B Subdiv 25B.2.3 of the FCCR). The Full Court also confirmed that where a judgment is obtained in a State civil court for moneys due under a registered maintenance liability, the Registrar may seek to recover any unpaid portion of the judgment that relates to arrears of maintenance (as distinct from penalties or costs) in any court exercising FLA jurisdiction.

Departure prohibition orders: Pt VA [6.220] The Registrar now has the power under s 72D of the CS(RC)A to make a “departure prohibition order” preventing the payer of a child support liability from leaving Australia if: • the payer has not made arrangements satisfactory to the

Registrar for the child support liability to be wholly discharged (s 72D(1)(b)); and • the Registrar is satisfied that the payer has persistently and

without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability (ss 17, 72D(1)(c) and (2)); and • the Registrar believes on reasonable grounds that it is desirable

to make the order for the purpose of ensuring that the payer does not depart without wholly discharging the child support liability or making satisfactory arrangements for the liability to be wholly discharged: CS(RC)A s 72D(1)(d). A payer who knowingly breaches the departure prohibition order may face a maximum penalty of 60 penalty units or imprisonment of 12 months (or both): CS(RC)A s 72F. The Registrar does have

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the power, however, to grant a “departure authorisation certificate” that would allow a payer to temporarily leave Australia: see CS(RC)A ss 72K–​72P. Any appeal in relation to either a departure prohibition order or a departure authorisation certificate is made to the Federal Circuit Court (or if appropriate, the Federal Court of Australia), although some decisions may be reviewed by the Administrative Appeals Tribunal (AAT): see CS(RC)A ss 72Q–​72T; also see Onder v Child Support Registrar (No 2) (2011) 45 Fam LR 577.

Child support under the Child Support (Assessment) Act 1989 [6.230]  Stage 2 of the Child Support Scheme commenced operation on 1 October 1989: see CSAA; in WA see also Child Support (Adoption of Laws) Act 1990 (WA). Stage 2 involved the introduction of an administrative system of assessment (by the CSA Registrar) of child maintenance. The CSAA sets out a statutory formula for determining the annual rate of child support to be paid by the parent who is not living with the child to the person who has the day-​to-​day care of his or her child. It is worth noting that unlike the FLA, “need” is assumed under the CSAA. In other words, the CSAA merely focuses its attention on meeting those needs (who is to pay and how much is to be paid).

Eligible children: Pt 3 [6.240]  The CSAA applies to all children born on or after 1 October 1989 or to children born before that date whose parents separate after that date or where a full brother or sister was born after that date: CSAA ss 18–​22. Obviously, the use of the separation date was a convenient way of bringing children who were born before the commencement date within the scheme.

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Applications for support: Pt 4 [6.250]  An eligible carer may seek an order for administrative assessment: CSAA ss 5 and 25. This is any person who is either primarily responsible, or at least equally responsible, for the day-​to-​day care of a child and who is not living with the parent from whom the child support is sought (ie living with the parent as his or her spouse on a genuine domestic basis). Unlike the FLA, a relevant child cannot seek an administrative assessment. Support may only be sought from a parent (biological or adoptive) of the child who is an Australian resident or resident in a reciprocating jurisdiction: see CSAA ss 25A(2)(b), 29A and 29B. Applications for administrative assessment cannot be made against “foster parents”: see Tobin v Tobin (1999) FLC 92-​848 (per Finn, Kay and Chisholm JJ). By contrast, an application by the liable parent is now permissible: CSAA s 25A. In addition, the relevant child must be an eligible child under the age of 18 and “not a member of a couple” (married or in a de facto relationship): CSAA s 24(a). The child must also have a jurisdictional connection with Australia: see CSAA s 24(b). The CSAA applies in respect of nuptial and ex-​nuptial children (except in WA which has complementary legislation), and applications are now possible in respect of children who are in State care: CSAA s 26A. The application procedure is relatively simple. The eligible carer makes an application for administrative assessment to the Child Support Registrar: CSAA s 27. Providing the application is properly made, the Registrar must accept it: CSAA s 30(1). Section 29 of the CSAA sets out how the Registrar’s decision is to be made, and in particular, the Registrar must be satisfied as to the child’s parentage. Child support then becomes payable from the most recent of the occasions or dates set out in s 31 of the CSAA. The child support liability is then registered in the Child Support Register and is thereafter subject to the payment options and procedures of the CS(RC)A.

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Administrative assessment of child support: Pt 5 [6.260] Until 1 July 1999, the “child support year” ran parallel to the financial year. Under the current CSAA, the “child support period” effectively runs from the day when an assessment application is properly made until a further assessment is made (following a “tax assessment” of the taxable income of the liable parent) or a maximum of 15 months, whichever occurs soonest: CSAA ss 7A and 34A.

Old formula (ended 30 June 2008) [6.270]  The old formula was calculated by multiplying the applicable “child support percentage” against the liable parent’s “adjusted income amount”. The child support percentage that was applied depended upon the number of liable children: • one child —​18 per cent; • two children —​27 per cent; • three children —​32 per cent; • four children —​34 per cent; and • five (or more) children —​36 per cent.

The “adjusted income amount” was then calculated by reference to the liable parent’s child support income amount less a prescribed “exempted income amount”. The “child support income amount” represented the liable parent’s taxable income for the “last relevant year of income in relation to the child support period” (together with any relevant “supplementary amount” comprising exempt foreign income, rental property loss and reportable fringe benefits for the year of income). There was a cap on the amount payable if the child support income amount exceeds 2.5 times average weekly earnings. The “exempted income amount” depended upon a number of factors, in particular whether the liable parent had a “relevant

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dependent child”. Where there was no dependent child, 110 per cent of the annual unpartnered rate of social security (for the child support year) was deducted. If there was a dependent child or dependent children, 220 per cent of the annual partnered rate was to be deducted. In addition, the payer deducted a specified amount for each child, depending on age. Modifications to the formula were possible. The most common modification was where the entitled carer’s child support income amount exceeds their “disregarded income amount”. The carer’s disregarded income amount was the yearly equivalent of the “EAWE” amount for the child support period. The “EAWE”, in relation to the child support period, meant “the estimate of the all employees average weekly total earnings for persons in Australia for the latest period for which such an estimate was published by the Australian Statistician before the calendar year in which the child support period started”. The annual rate of child support payable by the liable parent could not be reduced below 25 per cent of the rate payable prior to the adjustment made by the carer’s disregarded income amount. The old formula (where the liable parent’s child support income did not exceed the carer’s disregarded income amount) could be summarised as multiplying the child support percentage against the difference between the liable parent’s adjusted income amount and the liable parent’s exempted income amount:   child support = child support percentage multiplied by [(payer taxable income × inflation factor) less (payer exempted income + dependent child allowances)]  

Current formula (commenced 1 July 2008) [6.280]  On 1 July 2008 a new formula for calculating child support was introduced: see CSAA Pt 5 as amended on 1 July 2008 by 100

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the Child Support Legislation Amendment (Reform of Child Support Scheme —​New Formula and other Measures) Act 2006 (Cth). The new formula takes into account shared parenting arrangements. The formula treats both parents’ incomes and living costs more equally and takes into account the fact that older children cost more. It also attempts to make sure children from first and second families are treated more equally by using the actual cost of the children from the second family in determining the child support payable (rather than a flat increase to the self-​support amount). The new formula uses an “income shares” approach to calculate and share the costs of children. It has the same self-​support amount for both parents (equal to one-​third of the Male Total Average Weekly Earnings “MTAWE”). Further, the cost of children is derived from parents’ combined incomes and the cost is divided between the parents in proportions equal to their share of the combined income. The new formula also recognises the costs of the non-​carer parent spending time with the children as a contribution to the costs of children. Where the non-​carer parent has care of the child for between 14 and 34 per cent of the nights of the year, 24 per cent of the cost of the child is taken to be met. Where the non-​carer parent has care of the child for 35 per cent of the nights of the year, 25 percent of the cost of the child is taken to be met. This rises to 50 percent of the cost of the child being met when care is shared equally. The formula also allows carer parents to keep all of their Family Tax Benefit except where there is shared care (35 per cent or more). The current formula can be summarised as follows:   child support = [ father’s IT%–​C%] plus [mother’s IT%–​C%] I: combined parents’ child support income amount (adjusted taxable income minus self-​support amount) T: costs of children based on variables (based upon item I above plus the number and ages of children) C: percentage of costs of care already met by virtue of care arrangements (% of time children spend/​s with each parent)  

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End of liability [6.290] Under the CSAA, a “child support terminating event” happens when any one of the following events occurs (ie a child support assessment ends): • where the child, or the carer or the liable parent, dies (s 12(1)(a),

(2) and (3)); • where the child ceases to be an eligible child, turns 18, is

adopted, or becomes a member of a couple (s 12(1)(c)–​(e)); • where the child fulfils all of the following criteria: is no longer

present in Australia and no longer resides in Australia and is no longer an Australian citizen (s 12(1)(f)); • where a person ceases to be an eligible carer (s 12(2)(b)); • where the carer elects to end assessment (s 12(4)); and • where the liable parent ceases to be a resident of Australia or

resident in a reciprocating jurisdiction: s 12(3) and (3A); also note s 12(3B).

Child support agreements: Pt 6 [6.300]  Section 4(3)(a) of the CSAA actively encourages parties to enter into a private child support agreement. The substantive provision is s 84 of the CSAA. The agreement may make provision in respect of virtually every aspect of child support. However, if the agreement provides for payment other than by way of periodic amounts, it must state the way this is to be credited against the liable parent’s liability under the administrative assessment: CSAA s 84(2) and (3). The agreement may form part of a parenting plan under Pt VII of the FLA (discussed in Chapter 5 ([5.10])) or a financial agreement entered into in accordance with Pt VIIIA or Pt VIIIAB of the FLA (discussed in Chapter 8): CSAA s 84(7). If the agreement is accepted by the Registrar, it has the same general effect as the acceptance of an administrative assessment: see CSAA ss 81, 89 and 92. A court may set aside a 102

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registered agreement if consent was obtained by fraud or undue influence: CSAA s 136(2). A party may also ask a court to set aside a child support agreement if he or she can demonstrate that exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, have arisen since the agreement was made and the applicant or the child will suffer hardship if the agreement is not set aside: CSAA s 136(2)(d).

Departure from administrative assessment: Pt 6A [6.310] Since 1 July 1992 a two-​ step review system has been in place: • first, the Child Support Registrar has the power to make a

review determination subject to considering various factors prescribed in the legislation (see CSAA Pt 6A and in particular ss 98A, 98C and 98D); and • secondly, the AAT or, in limited circumstances, a court has the

power to review an administrative assessment in specified circumstances or to make an order departing from administrative assessment in special circumstances: see CSAA Pt 7 and in particular s 117. The internal review process (first step) should take place prior to any judicial review (second step): see CSAA s 115; also see Reid v Reid (1999) FLC 98-​007 (per Nicholson CJ; Ellis and Steele JJ agreeing). That said, s 116 of the CSAA enables a court to consider a departure if the party seeking the order is a party to parenting and/​or property and spousal maintenance proceedings and 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 in relation to the child in the special circumstances of the case: CSAA s 116(1)(b). In relation to the first step, both the carer and the liable parent have the right to apply to the Registrar for a review because of special circumstances that exist: CSAA s 98B. In addition to being satisfied that one or more of the grounds for departure exist, the Registrar may only make a review 103

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determination where such a decision would be “just and equitable” (as regards the eligible child, the payee and the payer) and “otherwise proper”: CSAA s 98C(1)(b). The grounds for administrative departure are the same as those for AAT or judicial departure as set out in CSAA s 117(2) (see [6.320]): CSAA s 98C(2) and (3).

Jurisdiction of the AAT [6.320]  Generally, if a person objects to a CSA decision, they can apply to have the matters reviewed by the AAT. An objection must be lodged within 28 days of the decision being served on a person: CS(RC)A s 81. A further appeal can be made to a court after an AAT decision on a question of law. Most CSA decisions can be appealed to the AAT including: • rejection of an application for an extension of time to lodge an

objection decision; • acceptance or refusal of an application for assessment; • acceptance or refusal of a child support agreement; • failure to collect arrears; and • refusal to remit penalties.

The AAT cannot review an objection decision about a change of assessment where the CSA has refused to make a change because the matters are too complex. As with the procedure under s 98C of the CSAA, the AAT (or court in limited circumstances) may make a departure order if one or more of the grounds for departure exist and it is satisfied that the departure would be “just and equitable” (as regards the eligible child, the carer and the liable parent) and “otherwise proper”: CSAA s 117(1)(b). The judicial grounds for departure have a common element of “special circumstances” which impact upon the three following areas specified in CSAA s 117(2), namely: • the capacity of either parent to provide financial support for

the child is significantly reduced because of: 104

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– the duty of the parent to maintain any other child or another person (s 117(2)(a)(i)); – special needs of any other child or another person that the parent has a duty to maintain (s 117(2)(a)(ii)); or – commitments of the parent necessary to enable the parent to support himself or herself or any other child or another person that the parent has a duty to maintain (s 117(2)(a)(iii)); or • 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 (s 117(2)(a)(iv)); • the costs of maintaining the child are significantly affected

because of the high costs of spending time with, or communicating with the child, the special needs of the child, or because of high childcare costs or because the child is being cared for, educated or trained in the manner that was expected by his or her parents (s 117(2)(b); also see s 117(2B)–​ (2C), (3A)–​(3C)); • that the administrative assessment would result in an unjust

and inequitable determination of the level of financial support to be provided by the liable parent for the child because of: – the income, earning capacity, property and financial resources of either party or the child (including any assets held for a child and capable of producing income but disregarding any entitlement by the child or the payee to an income-​tested pension, allowance or benefit (s 117(7)–​(7B) and (2)(c)(i)–​(ib)); or – any payments, and any transfer or settlement of property, made or to be made, by the parties (whether under the FLA or otherwise) (s 117(2)(c)(ii)). Section 117(4) of the CSAA specifies seven matters which the decision-​maker must have regard to in determining whether it is “just and equitable” to make a departure order: • the nature of the duty of a parent to maintain a child

(s 117(4)(a));

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• the proper needs of the child (having regard to the man-

ner in which the parents expected the child to be cared for or educated or trained, or any special needs (s 117(6) and (4)(b)); • the income, earning capacity, property and financial resources

of the child (s 117(4)(c)); • the income, earning capacity, property and financial resources

of each parent who is a party to the proceeding (s 117(4)(d) and (da)); • the commitments of each parent who is a party to the

proceeding to support himself or herself or any child or another person that the party has a duty to maintain (s 117(4)(e)); • the direct and indirect costs incurred by the carer in provid-

ing care for the child (s 117(4)(f)); and • any hardship that would be caused to the child, the carer, the

liable parent or any child or another person that the liable parent has a duty to support by the making of, or the refusal to make, the departure order: s 117(4)(g). Section 117(5) of the CSAA specifies two broad matters which the decision-​maker must have regard to in determining whether it is “otherwise proper” to make a departure order, namely: • the nature of the duty of a parent to maintain a child, and, in

particular, the fact that it is the parents of a child themselves who have a primary duty to maintain the child (s 117(5)(a)); and • the effect that the making of a departure order would have on

any entitlement of the child or the carer to an income-​tested pension, allowance or benefit or the rate of any income-​tested pension, allowance or benefit payable to the child or the carer: s 117(5)(b). It is worth noting that while the court must consider all the matters mentioned above, where relevant, these matters are not exhaustive and the court is free to consider any other matter it considers relevant: CSAA s 117(9). 106

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In Gyselman v Gyselman (1992) FLC 92-​279 the Full Court (per Nicholson CJ, Fogarty and Nygh JJ) confirmed that the exercise of s 117 of the CSAA involves three steps: • whether one or more of the grounds in s 117(2) of the CSAA

have been made out; • whether the proposed order is “just and equitable” (s 117(4));

and • whether the proposed order is “otherwise proper”: s 117(5).

Jurisdiction of courts: Pt 7 [6.330]  The Federal Circuit Court (and if appropriate, the Family Court) can review a decision (or grant an appeal) made by the Child Support Registrar in the following situations: • the court may make a declaration that the intended payee (ie

carer) is, or is not, entitled to an administrative assessment against the payer (ie liable parent) (CSAA ss 106, 106A and 107(1) (eg where the intended payee disputes parentage of the relevant child)); • the court may hear an application for leave to seek a back-

dated departure for a period over 18 months up to a period seven years prior to the application (s 112); • applications to vary or discharge a child support agreement:

s 136. As stated previously (see [6.320]), the court also has the power to make a departure order in the following special circumstances (CSAA s 116; also see CSAA ss 117 and 118): • where the CSA has refused to make a determination because

the matters are too complex (CSAA ss 98E, 98R); • where there are existing proceedings before the court and it

may be appropriate to deal with the child support proceedings concurrently; and • where the payer seeks to pay less than the minimum rate of

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Under Pt 7 Div 5 of the CSAA, the Federal Circuit Court (and if appropriate, the Family Court) can make an order for the provision of child support otherwise than in the form of periodic amounts paid to the carer: see ss 121–​131 and 141 (general powers of the court); see also Bolton v Bolton (1992) FLC 92-​309 (per Cohen J). Under Pt 7 Div 7 of the CSAA, the court may make an urgent maintenance order in appropriate circumstances: see CSAA s 139.

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Spousal Maintenance [7.10]  Areas covered: • spousal maintenance under the Family Law Act 1975 (Cth) (FLA) • child-​bearing expenses under the FLA • maintenance rights under State and Territory law.

Spousal maintenance under the Family Law Act 1975 [7.20]  The spousal maintenance provisions of the FLA are found in Pt VIII (married couples) and Pt VIIIAB (de facto couples). Amendments to the FLA that commenced on 1 March 2009 in all States and Territories (except WA and on 1 July 2010 in SA) extended spousal maintenance rights and obligations to parties to a de facto relationship (see Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)). Section 4AA of the FLA (which commenced in 2009) now states that 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 s 4AA(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.

Parties to relationships that are not “de facto relationships” under the FLA must continue to use State and Territory law for applicable relief.

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There are time restrictions on the commencement of proceedings for spousal maintenance (and property settlement). For married couples, s 44(3) of the FLA requires proceedings for spousal maintenance (and property settlement) be commenced within 12 months from a nullity decree or divorce decree becoming final, although the court has the power to grant leave to commence proceedings out of time: FLA s 44(4); also see Whitford and Whitford (1979) FLC 90-​612 (per Asche and Pawley SJJ and Strauss J); Richardson v Richardson (1999) 26 Fam LR 523 (per Mullane J); and Slocomb v Hedgewood [2015] FamCAFC 219 (per May, Ainslie-​Wallace and Johnston JJ). For de facto couples, applications must be commenced within the period of two years after the end of the de facto relationship, although the court may grant leave to file an application out of time: FLA s 44(5) and (6); also see Chancellor & McCoy [2016] FamCAFC 256 (per Bryant CJ, Thackray and Strickland JJ).

Spousal liability: ss 72 (married couples) and 90SF (de facto couples) [7.30]  The right of a married spouse to be maintained by the other is set out in s 72(1) of the FLA: 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).

For de facto couples, see s 90SF(1) of the FLA. The phrase “party to a marriage” means that the liability extends to parties who are married or were married or were parties to a void marriage: FLA s 71.

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The phrase “party to a de facto relationship” means a person who lives or has lived in a de facto relationship: FLA s 4(1). In addition, s 90SB requires the court to be satisfied that

(a) that the period, or the total of the periods, of the de facto relationship is at least 2 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.

The spousal maintenance right is a conditional one. The general right is subject to the party “in need” being unable to support himself or herself and the other party being “reasonably able” (financially speaking) to provide such support. In In the Marriage of Astbury (1978) 34 FLR 173 the trial judge (Maxwell J) held that the wife had the: appropriate capacity for gainful employment once she applied her mind to overcoming certain slight difficulties in this regard and once she had obtained employment should be able to support herself adequately.

In other words, the court can take into account a party’s ability or reasonable efforts to obtain employment to counter a claim for spousal support. The Full Court (per Evatt CJ, Asche and Bell JJ) dismissed the wife’s appeal and stated that her Honour had not erred in reaching the conclusion she came to. It is worth noting that this view was softened a little in Mitchell v Mitchell (1995) FLC 92-​601 where the Full Court (per Nicholson CJ, Fogarty and Jordan JJ) acknowledged that the wife, who had been out of the workforce for some 30 years, would find it difficult to be retrained or to compete with younger, more appropriately qualified persons.

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Court’s power to enforce liability: ss 74 (married couples) and 90SE (de facto couples) [7.40]  The court has the power to make a spousal maintenance order “as it considers proper” subject to considering the relevant matters set out in s 75 of the FLA (married couples) and in s 90SF (de facto couples). In In the Marriage of Wilson (1989) FLC 92-​601 the Full Court (per Strauss and Nygh JJ; Kay J dissenting on the facts) stated that “as it considers proper” means “appropriate to the circumstances”. In Bevan and Bevan (1995) FLC 92-​6 00 the Full Court (per Nicholson CJ, Lindenmayer and McGovern JJ) also noted the effect of s 81 of the FLA and stated that, as regards the so-​c alled “proper” requirement, “we do not think, having regard to s 75(2), that this means that an award of spousal maintenance should be at a subsistence level”. The Full Court then went on to provide the following checklist in considering the exercise of its s 74 power: • first, make a threshold finding under s 72; • secondly, consider ss 74 and 75(2); • thirdly, there is no fitting principle that the pre-​separation

standard of living must automatically be awarded where the respondent’s means permit; and • fourthly, a discretion is to be exercised in accordance with the

provisions of s 74, with “reasonableness in the circumstances” as the guiding principle. The power of the court to make a maintenance order “after the breakdown of a de facto relationship” is found in s 90SE of the FLA. While the court may make a spousal maintenance order during the subsistence of a marriage, parties to a de facto relationship must have ended their relationship. An application for a final order (and any interim or procedural order if sought) must be in accordance with the prescribed form: FLR rr 2.01 and 5.01; FCCR rr 2.01–​2.04.

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Relevant considerations: ss 75 (married couples) and 90SF (de facto couples) [7.50]  Section 75(1) of the FLA states that in “exercising jurisdiction under s 74, the court shall take into account only the matters referred to in subsection (2)”. In other words, s 75(1) declares that the court may only take into account the matters set out in s 75(2) in exercising its s 74 discretion. The s 75(2) matters are: • the age and health of the parties (s 75(2)(a)); • the income, property, financial resources of the parties and

their physical and mental employment capacity (s 75(2)(b)); • whether a party has the care of a child of the marriage

(s 75(2)(c)); • the necessary “commitments” of the parties (s 75(2)(d)); • the responsibility of the parties to support any other person

(s 75(2)(e)); • the eligibility of the parties to a pension, allowance, benefit or

superannuation fund (s 75(2)(f)); • a reasonable standard of living in all the circumstances

(s 75(2)(g)); • the extent to which maintenance to undertake an education

and training opportunity may increase a party’s earning capacity (s 75(2)(h)); • 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 (s 75(2)(ha)); • the extent to which the applicant contributed to income, earn-

ing capacity, property and financial resources of the other party (s 75(2)(j)); • the duration of marriage and the extent to which it has

affected the earning capacity of the applicant (s 75(2)(k)); • the need to protect the role of a parent (s 75(2)(l));

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• if either party is cohabiting, the financial circumstances relat-

ing to the cohabitation (s 75(2)(m)); • the terms of a s 79 order (made or proposed) (s 75(2)(n)); • any child support assessment (s 75(2)(na)); • 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)); • the terms of any financial agreement that is binding on the

parties (s 75(2)(p)); and • the terms of any Pt VIIIAB financial agreement that is binding

on the parties: s 75(2)(q). There are similar provisions in s 90SF(3) of the FLA for relevant de facto relationships. While s 75(2)(o) (and s 90SF(3)(r)) of the FLA would appear to be a very wide catch-​all provision, some caution is needed. In Soblusky and Soblusky (1976) FLC 90-​124 the Full Court (per Demack and Watson SJJ and Fogarty J) commented that the: acts or circumstances within s 75(2)(o) do not include facts or circumstances relating to the marital history as such of the parties but relate only as to facts or circumstances of a broadly financial nature … Save to the very extent referred to … in proceedings for maintenance evidence relating to marital content of the parties is irrelevant and inadmissible.

In making a spousal maintenance order the court must disregard any entitlement of the party in need “to an income tested pension, allowance or benefit”: FLA s 75(3). Government pensions, allowances or benefits are defined in reg 12A of the Family Law Regulations 1984 (Cth). There is a similar provision in s 90SF(4) of the FLA for relevant de facto relationships.

Urgent orders: ss 77 (married couples) and 90SG (de facto couples) [7.60]  Section 77 of the FLA provides that: 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

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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.

There is a similar provision in s 90SG of the FLA for relevant de facto relationships.

Specification in orders: ss 77A (married couples) and 90SH (de facto couples) [7.70]  In making a spousal maintenance order that has the effect of requiring a payment of a lump sum or a transfer of property, the court is obliged to specify the portion of the payment or the value of the portion of the property, which is attributable to the provision of spousal maintenance: FLA ss 77A(1) and 90SH(1). Failure to do so will mean that the payment or transfer of property will not be taken to be for spousal maintenance: FLA ss 77A(2) and 90SH(2); also see Caska v Caska (1998) FLC 92-​826 (per Fogarty, Finn and May JJ). In Doig v Doig (1999) FLC 92-​869 the Full Court (per Kay J; Holden and Martin JJ agreeing) commented that s 77A of the FLA is designed to circumvent possible demands upon income-​tested pensions, allowances and benefits.

General powers of the court: ss 80 (married couples) and 90SS (de facto couples) [7.80]  Under s 80(1) of the FLA, the court may do all or any of the following: • order payment of a lump sum, in one amount or by instalments

(s 80(1)(a)); • order payment of a weekly, monthly, yearly or periodic sum

(s 80(1)(b)); • order that a specified transfer or settlement of property

be made by way of maintenance for a party to a marriage (s 80(1)(ba)); 115

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• order that the payment of any sum ordered to be paid be

wholly or partly secured in such manner as the court directs (s 80(1)(c)); • order that any necessary deed or instrument be executed and

that such documents of title be produced or such 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 (s 80(1)(d)); • appoint or remove trustees (s 80(1)(e)); • order that payments be made directly to a party to a marriage,

or to a trustee to be appointed or into the court or to a public authority for the benefit of a party to a marriage (s 80(1)(f)); • 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 (s 80(1)(h)); • impose terms and conditions (s 80(1)(i)); • make an order by consent (s 80(1)(j)); • make any other order (whether or not of the same nature as

those mentioned in the preceding paragraphs of this section), which it thinks is necessary to make to do justice (s 80(1)(k)); and • subject to this Act, make an order under this Part (ie Pt VIII) at

any time before or after the making of a decree under another Part: s 80(1)(l). There are similar provisions in s 90SS(1) of the FLA for relevant de facto relationships. Section 80(2) of the FLA stipulates that just because the court makes an order under s 80(1)(ba) does not prevent the court from making a subsequent maintenance order. Similarly, s 90SS(3) of the FLA stipulates that if an order is made under s 90SS(1)(c), it does not prevent the court from making a subsequent maintenance order. Sections 80(3) and 90SS(4) of the FLA allow the court to make an order for the enforcement and collection of maintenance provisions: also see FLR and FCCR.

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Unless there are special circumstances, it seems that the court should consider periodic maintenance in preference to a lump sum order. In Clauson v Clauson (1995) FLC 92-​495 the Full Court (per Barblett DCJ, Fogarty and Mushin JJ) stated that: 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 a lump sum order … [lump sum maintenance] is the capitalising 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 capitalise periodic spousal maintenance is a power to be exercised cautiously.

The Full Court went on to explain the caution by noting the uncertainty of future events and by stressing the need for the court to be convinced that there was a “genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order”.

Cessation of a maintenance liability: ss 82 (married couples) and 90SJ (de facto couples) [7.90] Broadly speaking, there are just two situations where a spousal maintenance order ceases: • first, the death of either party (subject to a “lifetime main-

tenance order” made prior to 1983) (FLA ss 82(1)–​ (3) and 90SJ(1)); and • secondly, the marriage of the beneficial spouse to another per-

son (unless there are “special circumstances”): ss 82(4) and (6), 90SJ(2). There are no FLA cases on the issue of exactly what special circumstances may exist for the maintenance order to continue notwithstanding a subsequent marriage by the beneficiary. It should be noted that ss 82(8) and 90SJ(5) of the FLA preserve the right of the beneficial party to sue for any arrears of maintenance.

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Modification of order: ss 83 (married couples) and 90SI (de facto couples) [7.100] Section 83 of the FLA deals with the modification of spousal maintenance orders. The court may: • discharge the order (if there is just cause for doing so) (s 83(1)(c)); • suspend the order (wholly or in part for a fixed date/​period)

(s 83(1)(d)); • revive a suspended order (in whole or in part) (s 83(1)(e)); or • vary an order: s 83(1)(f).

There is a similar provision in s 90SI(1) of the FLA for relevant de facto relationships. The change in the order does not affect the right to claim arrears: ss 83(8) and 90SI(11). To increase or decrease a spousal maintenance order, the court must be satisfied of at least one of the following six factors: • the circumstances of the payee have changed as to justify the

modification (ss 83(2)(a)(i) and 90SI(3)(a)(i)); • the circumstances of the payer have changed as to justify the

modification (ss 83(2)(a)(ii) and 90SI(3)(a)(ii)); • in the case of an order that operates in favour of, or is binding

on, a legal representative —​the circumstances of the estate are such as to justify the modification (ss 83(2)(a)(iii) and 90SI(3)(a)(iii)); • the cost of living has changed (but at least 12 months must

elapse for such a change) (ss 83(2)(b) and 90SI(3)(b)); • (if a consent order) the amount ordered was not proper or

adequate (ss 83(2)(ba) and 90SI(3)(c)); or • the court is satisfied that material facts were withheld:

ss 83(2)(c) and 90SI(3)(d). In Caska v Caska (1998) FLC 92-​826 the Full Court (per Fogarty, Finn and May JJ) held that the matters listed in s 83(2) of the FLA are in the alternative. 118

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Financial agreements between married couples [7.110]  Historically, any agreement made between a husband and wife has been treated with caution by the courts, particularly in the light of a marriage breakdown: see Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432. The FLA overcomes the problems of the common law view by laying down a code to regulate financial agreements. The relevant provisions for parties to a marriage are in Pts VIII and VIIIA of the FLA: ss 86A–​90 and 90A–​90Q. It is interesting to note that either party may sue the other in tort or contract: FLA s 119. Nevertheless, the court actively encourages settlement of disputes. The most common way a financial dispute is resolved in the Family Court or the Federal Circuit Court is by negotiation and settlement. Until the commencement of Pt VIIIA of the FLA in late 2000, parties could enter into a written “maintenance agreement” that related to “financial matters”, with the latter being defined as “the maintenance of one of the parties or the property of those parties or either of them or the maintenance of the children (of marriage)”: FLA s 4(1). A maintenance agreement could be registered with the Family Court without the necessity or involvement of a judicial officer: see FLA ss 86A and 86. The effect of registration is that the agreement may be enforced as if it were an order of the court: FLA s 88. Alternatively, the court could approve the maintenance agreement, and if approved, the agreement acted in substitution of the rights that a party had under Pt VIII of the FLA. In the context of maintenance it is worth noting that s 87A of the FLA required the clear specification of the maintenance component of the agreement. Moreover, s 87(4A) of the FLA required the court to consider the likelihood of whether a party would be able to support themselves (as a result of the agreement) without the need for social security, and, if so, the agreement might be subsequently varied. In other words, the agreement was not really in substitution of rights if this particular maintenance situation arose. Since the commencement of Pt VIIIA of the FLA in 2000, it is no longer possible to enter into a written maintenance agreement 119

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in accordance with either s 86 or s 87 of the FLA: FLA s 86A. Nevertheless, parties to a marriage may now enter into a written “financial agreement” that is binding upon them and, where applicable, prevents a court making an order under Pt VIII of the FLA: FLA ss 71A, 90B–​90D. Unlike the procedures that operated in the context of maintenance agreements, there is no requirement for registration or court approval of a financial agreement; however, both parties must have independent legal advice prior to its execution: FLA s 90G. Since 2005, a financial agreement is of no force or effect until a “separation declaration” is made: FLA s 90DA(1). A separation declaration is a written declaration, signed by at least one of the parties, that confirms that the parties have separated and there is no reasonable likelihood of cohabitation being resumed: FLA s 90DA(1)–​(5). There are four types of financial agreements categorised according to the time of execution by the parties: • before marriage (pre-​nuptial) (s 90B); • after marriage (post-​nuptial) but before separation (s 90C); • after marriage (post-​ nuptial) but after separation (also

s 90C); and • after divorce: s 90D.

A binding financial agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party: FLA s 90H. Specific reference is made in the FLA to the ability of financial agreements to provide for spousal maintenance: FLA ss 90B(2)(b), 90C(2)(b) and 90D(2)(b). Nevertheless, a provision of a financial agreement that relates to spousal maintenance will be void unless the provision specifies the party for whose maintenance provision is made and “the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party”: FLA s 90E. A further restriction is provided in s 90F(1) and (1A) of the FLA: (1) No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) applies.

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(2) This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.

Financial agreements that are not entered into in accordance with Pt VIIIA of the FLA (or maintenance agreements that were not entered into in accordance with either s 86 or s 87 of the FLA when applicable) may not be binding on the parties or the court: FLA s 85A (discussed in Chapter 8 ).

Financial agreements between de facto couples [7.120]  Generally speaking, the common law did not recognise or enforce financial agreements between de facto couples. In contrast, the State and Territory legislation (introduced around Australia from 1985) actively encouraged unmarried partners to settle their own financial disputes following the breakdown of their relationship. Financial agreements between relevant de facto couples validly entered into after the commencement of Pt VIIIAB of the FLA are now governed by those provisions. The requirements are essentially the same as those that apply under Pt VIIIA of the FLA for married couples.

Child-​bearing expenses under Family Law Act 1975 Liability of father if not married to mother: s 67B [7.130]  The father of a child who is not married to the mother is, subject to a contrary order, liable to make a proper contribution towards: • the mother’s personal maintenance for a period of up to two

months before the birth of the child (or such a longer period if she is in paid employment and is required to give up work 121

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earlier on medical advice) and for up to three months after the birth of the child (see FLA s 67B(a) (and FLA s 60D(1) definition of “childbirth maintenance provision”)); and • the mother’s reasonable medical expenses in relation to the

pregnancy and birth of the child (FLA s 67B(b)); and • the reasonable funeral expenses if the mother or child dies

in circumstances related to the pregnancy or birth (FLA s 67B(c)); and • if the child is stillborn, or dies and the death is related to the

birth, the reasonable expenses of the funeral: FLA s 67B(d).

Who may institute proceedings: s 67F [7.140]  Not surprisingly it is the mother who may institute proceedings for childbirth expenses at any time during her pregnancy and no later than 12 months after the birth of the child, subject to leave of the court and proof by the mother of related hardship: FLA ss 67F and 67G.

Court’s power: ss 67D and 67E [7.150]  The court has the power to make a childbirth expenses order “as it thinks proper”: FLA s 67D(1). The types of orders it can make are set out in s 67D(2)(a)–​(j) of the FLA.

Relevant considerations: ss 67C and 67G [7.160]  In determining what contribution the father of the child should make, the court must take only the following matters into account: • the financial circumstances of the mother and the father of the

child (FLA s 67C(1)(a)); • the financial commitments of the respective parties (s 67C(1)(b));

and

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• any special circumstances which, if not taken into account in

the particular case, would result in injustice or undue hardship to any person: s 67C(1)(c). As with spousal maintenance, the court is obliged to also take into account a party’s capacity to earn and derive income but to specifically disregard the mother’s entitlement to an income-​tested pension, allowance or benefit: FLA s 67C(2) and (3). It is possible for the mother to approach the court for an urgent order under s 67E of the FLA. If the court is satisfied that the mother is in immediate need of financial assistance, and 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 or other amount as the court considers appropriate. The provisions in the FLA relating to childbirth expenses have no application in WA. Such an application is possible, however, under Pt 5 Div 8 (ss 133–​141) of the Family Court Act 1997 (WA). The practical relevance of these childbirth expenses provisions is questionable, particularly given the availability of parental leave support from employers (and the income-​tested parental leave payment in lieu).

Maintenance rights under State and Territory law [7.170] At common law, there is no obligation for the parties in unmarried domestic relationships to financially support one other: see Richards v Dove [1974] 1 All ER 888. Of course, statute now provides de facto couples with maintenance rights and obligations under the FLA (except in WA where similar provisions exist under State law). Where a relationship does not fall within

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the provisions of the FLA, State and Territory law may still apply. This is particularly relevant to de facto couples whose relationship ended before the commencement of Pt VIIIAB of the FLA or other types of domestic relationships that are not de facto relationships. The statutory coverage, rights and obligations vary, however, across the various Australian jurisdictions. The relevant legislation is: • NSW:  Property

(Relationships) Act 1984 and (Relationships) Legislation Amendment Act 1999;

Property

• Qld:  Property Law Act 1974 and Property Law Amendment

Act 1999; • SA: Domestic Partners Property Act 1996 and Statutes Amendment

(Domestic Partners) Act 2006; • Tas: Relationships Act 2003; • Vic: Relationships Act 2008; • WA:  Family Court Act 1997 and Family Court Amendment

Act 2002; • ACT: Domestic Relationships Act 1994; and • NT:  De Facto Relationships Act 1991 and Law Reform (Gender

Sexuality and De Facto Relationships) Act 2004. Subject to the applicability of the FLA since 2009, the legislation in all jurisdictions applies to opposite-​gender and same-​gender de facto couples (and, as discussed in Chapter 2, to other “caring and sharing” domestic relationships in NSW, Vic, SA, Tas and the ACT). The legislation in NSW, Vic, Tas, WA, the ACT and NT enables a court to grant spousal support in limited circumstances. By contrast, the legislation in Qld and SA provides no statutory right or obligation for spousal support at all.

Jurisdictional requirements [7.180]  For a spouse to be eligible to seek spousal maintenance relief under the legislation in NSW, Vic, Tas, WA, the ACT and NT, 124

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the court must be satisfied that the relevant relationship comes within the statutory definition (see Chapter 2). In addition, unless the relationship is “registered” (if applicable), there are several additional jurisdictional “hurdles” which must be satisfied:

Residence requirement [7.190]  The relationship in question must have a connection with the relevant State or Territory: NSW s 15; Vic s 42; WA s 205X; ACT s 11; NT s 15; there is no specific provision in Tas; also see Flett v Brough (1999) DFC 95-​211 (per McLaughlin M).

Minimum length requirement [7.200] The relevant court must not make a financial order (a spousal maintenance order) unless the parties have lived together in a relationship for a period of not less than two years: NSW s 17(1); Vic s 42(2); Tas s 37(1); WA s 205Z(1)(a); ACT s 12(1); NT s 16(1). Nevertheless, there is an exception to this requirement where there is a child of the parties or where the applicant would suffer serious injustice (by reason of having made substantial contributions to the relationship): NSW s 17(2); Vic s 42(3); Tas s 37(2); WA s 205Z(1)(b)–​(c); ACT s 12(2); NT s 16(2).

Time limit requirement [7.210] The relevant court must not make a financial order (a spousal maintenance order) where the parties separated more than two years previously: NSW s 18(1); Vic s 43(1); Tas s 38(1); WA s 205ZB(1); ACT s 13(1); NT s 14(1). Nevertheless, it is possible for the court to grant leave to make an application out of time where it is satisfied that greater hardship would be caused to the applicant if leave were refused than if it were granted: NSW s 18(2); Vic s 43(2); Tas s 38(2); WA s 205ZB(2); ACT s 13(2); NT s 14(2); also see McGibbon v Marriott (1999) DFC 95-​221; Selemore v Bull (2005) 34 Fam LR 488. 125

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No general right to maintenance [7.220]  The legislation in NSW, Tas, the ACT and NT states that, subject to the legislation itself, there is no general right to maintenance: NSW s 26; Tas s 46; ACT s 18; NT s 24. By contrast, the legislation in Vic and WA provides a similar conditional right of support as in s 72 of the FLA: see Vic s 51 and WA s 205ZC.

Court’s power to order maintenance [7.230]  Notwithstanding the general prohibition on maintenance rights, the legislation in NSW, the ACT and NT enables a relevant court to make an order in limited circumstances: NSW s 27; ACT s 19; NT s 26. The court must be satisfied: • first, that the applicant is unable to support himself or herself

adequately by reason of having the care and control of a child of the relationship, but the child must be 12 years or under (or 16 years or under if physically or mentally challenged) (NSW s 27(1)(a); ACT s 19(1)(a); NT s 26(1)(a) (note that the age is 18 for all children)); or • secondly, that the applicant is unable to support himself or her-

self adequately because his or her earning capacity has been adversely affected by the circumstances of the relationship and the order would increase the applicant’s earning capacity by enabling him or her to undertake education or training, and it is reasonable to make the order in the circumstances: NSW s 27(1)(b); ACT s 19(1)(b); NT s 26(1)(b); also see Todoric v Todoric (1990) DFC 95-​096 (per Powell J); Parker v Parker (1993) 16 Fam LR 863 (per Young J). In Vic, the court: may make the order if satisfied that the applicant is unable to support himself or herself adequately because—​

(a) the partner’s earning capacity has been adversely affected by the circumstances of the domestic relationship or registered caring relationship; or

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(b) of any other reason arising in whole or part from the circumstances of the domestic relationship or registered caring relationship.

In WA, the court “may make such order as it considers proper for the maintenance of a de facto partner”: WA s 205ZD(1). In Tas, the court may make a maintenance order if it is satisfied that the applicant is unable to support himself or herself adequately because his or her earning capacity has been adversely affected by the circumstances of the relationship or “for any other reason arising in whole or in part from circumstances of the personal relationship”: Tas s 47(1). The courts in all these jurisdictions may also make an interim maintenance order where an applicant is in immediate need of assistance and it is not practicable in the circumstances to fully determine immediately if any order should be made: NSW s 28; Vic s 52; Tas s 48; WA s 205ZE; ACT s 20; NT s 27.

Relevant considerations for making a maintenance order [7.240] In determining whether or not to make a maintenance order, the courts in the relevant States and Territories must take into account the following matters: • the income, property and financial resources of each partner

(NSW s 27(2)(a); Vic s 51(2)(a); Tas s 47(2)(a); WA s 205ZD(3)(b); ACT s 19(2)(a); NT s 26(2)(a)); • eligibility of a partner for pension, allowance or benefit (NSW

s 27(2)(a); Vic s 51(2)(a); Tas s 47(2)(a); WA s 205ZD(3)(f); NT s 26(2)(d); the ACT legislation makes no specific reference); • the physical and mental capacity of each partner for appro-

priate gainful employment (NSW s 27(2)(a); Vic s 51(2)(a); Tas s 47(2)(a); WA s 205ZD(3)(b); ACT s 19(2)(b); NT s 26(2)(b)); • the financial needs and obligations of each partner (NSW

s 27(2)(b); Vic s 51(2)(b); Tas s 47(2)(b); WA s 205ZD(3)(d); ACT s 19(2)(c); NT s 26(2)(c));

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• the responsibilities of each partner to support any other

person (NSW s 27(2)(c); Vic s 51(2)(c); Tas s 47(2)(c); WA s 205ZD(3)(e); ACT s 19(2)(d); NT s 26(2)(e)); • the terms of any property adjustment order (NSW s 27(2)(d);

Vic s 51(2)(d); Tas s 47(2)(d); WA s 205ZD(3)(m); ACT s 19(2)(e); NT s 26(2)(f)); and • child maintenance payments, court-​ordered or otherwise: NSW

s 27(2)(e); Vic s 51(2)(e); Tas s 47(2)(e); WA s 205ZD(3)(n); ACT s 19(2)(f); NT s 26(2)(g). In Vic, Tas and WA, the court also takes into account the following matters (which mirror the balance of the provisions in s 75(2) of the FLA in respect of the considerations for spousal maintenance): • age and health of the parties (Vic s 51(2)(i); Tas s 47(2)(g); WA

s 205ZD(3)(a)); • whether a party has the care of a child of the marriage (Tas

s 47(2)(f); WA s 205ZD(3)(c); Vic, no equivalent provision); • a reasonable standard of living in all the circumstances (Vic

s 51(2)(f); Tas s 47(2)(h); WA s 205ZD(3)(g)); • the extent to which maintenance to undertake an education

and training opportunity may increase a party’s earning capacity (Vic s 51(2)(g); Tas s 47(2)(i); WA s 205ZD(3)(h)); • the extent to which the applicant contributed to income, earn-

ing capacity, property and financial resources of the other party (Vic s 51(2)(h); Tas s 47(2)(j); WA s 205ZD(3)(i)); • the duration of the de facto relationship and the extent to

which it has affected the earning capacity of the applicant (Vic s 51(2)(j); Tas s 47(2)(k)–​(l); WA s 205ZD(3)(j)); • the need to protect the role of a parent (WA s 205ZD(3)(k); Vic

and Tas, no equivalent provision); • if either party is cohabiting, the financial circumstances relat-

ing to the cohabitation (WA s 205ZD(3)(l); Vic and Tas, no equivalent provision);

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• any fact or circumstance which, in the opinion of the court, the

justice of the case requires to be taken into account (Vic s 51(2)(l); WA s 205ZD(3)(o); Tas, no equivalent provision); and • the terms of any financial agreement that is binding on

the parties: Vic s 59; WA s 205ZD(3)(p); Tas, no equivalent provision. In making an order under the legislation in Vic, Tas, WA and the NT, the court must disregard the amount of any entitlement to an income-​tested pension, allowance or benefit: Vic s 51(3); Tas s 47(3); WA s 205ZD(4); NT s 26(3). This accords with the position for a spousal maintenance order under s 75(3) of the FLA. In NSW and the ACT, the court is actually required when making an order (as far as is practicable) to preserve the applicant’s entitlement to a pension, allowance or benefit: NSW s 27(3); ACT s 19(3).

Duration and cessation of a maintenance order [7.250]  A maintenance order ceases upon the death of either de facto partner: NSW s 32; Vic s 54; Tas s 50; WA s 205ZK; ACT s 24; NT s 30. In NSW, Tas, WA and NT, the order also ceases if the beneficial partner marries. In addition, in NSW, the ACT and NT, a “childcare maintenance” order ceases when the youngest child turns 12 (16 if the child is physically or mentally challenged): NSW s 30(1); ACT s 22(2); NT s 32 (but substitute the age of 18). A childcare maintenance order also ceases if the beneficial partner ceases to have the care and control of the child or children: NSW s 33; ACT s 24; NT s 31. Similarly, the alternative “rehabilitative maintenance” order cannot be made for a period of more than three years and may not exceed a period of more than four years from the end of the relationship: NSW s 30(2); ACT s 22(3); NT s 32(2); also see Todoric v Todoric (1990) DFC 95-​096 (per Powell J).

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Modification of a maintenance order [7.260]  Modification, whether by discharging, suspending, reviving or varying a maintenance order, is possible and the circumstances mirror the provisions in s 83 of the FLA: NSW s 35; Vic s 56; Tas s 52; WA s 205ZL; ACT s 23; NT s 33.

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Property Disputes under the Family Law Act 1975 [8.10]  Areas covered: • declarations: FLA Pt VIII s 78 (married couples) and Pt VIIIAB

s 90SL (de facto couples) • alteration of property interests (including superannuation

entitlements): Pt VIII s 79 and Pt VIIIB (married couples) and Pt VIIIAB s 90SM and Pt VIIIB (de facto couples) • statutory considerations: Pt VIII ss 79(4) and 81 (married cou-

ples) and Pt VIIIAB ss 90SM(4) and s 90ST (de facto couples) • past contribution factors: Pt VIII s 79(4)(a)–​(c) (married cou-

ples) and Pt VIIIAB s 90SM(4)(a)–​(c) (de facto couples) • future needs and the “s 75(2) factors”: Pt VIII s 79(4)(d)–​(g)

(married couples) and Pt VIIIAB s 90SM(4)(d)–​(g) (de facto couples) • setting aside of orders altering property interests: Pt VIII s 79A

(married couples) and Pt VIIIAB s 90SN (de facto couples) • third parties and competing claims: Pt VIIIAA ss 90AA–​90AK

(married and de facto couples) • transactions to defeat claims: Pt XIII s 106B (married and de

facto couples) • ante-​nuptial and post-​nuptial settlements: Pt VIII s 85A (mar-

ried couples only) • financial agreements: Pt VIII s 86A and Pt VIIIA ss 90A–​90Q

(married couples) and Pt VIIIAB ss 90UA–​90UN (de facto couples).

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Declarations: s 78 (and s 90SL) [8.20]  Section 78(1) of the FLA allows the court to make a formal declaration of a party’s legal or equitable interest in property: In proceedings between parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of property.

There is a similar provision for de facto couples: FLA s 90SL. Section 78(2) (and s 90SL(2)) of the FLA allows the court to make such consequential orders to give effect to such a declaration. For example, the court may order the sale of the property by the spouse who has legal ownership. The types of “orders” that could be made are specified in s 80 (and s 90SS) of the FLA. It is worth noting that the declaration power is silent as to whether there must be a property dispute in existence between the parties as a prerequisite to obtaining the relief. In Vance and Vance (1978) FLC 90-​522, Gibson J stated that, in his view, s 78 was “intended to have a broad scope and I do not think it should be read narrowly”. This view was not favoured in the subsequent case of Lanceley and Lanceley (1994) FLC 92-​491, where the Full Court (per Barblett DCJ, Frederico and Lindenmayer JJ) held that “this court is not bound to, and indeed properly ought not to, make a declaration where there is no issue between the parties”. It is also worth noting that s 78 can, and often does, affect third parties, such as companies, who are also parties to the proceedings. Prior to the 1987 amendments to the FLA, the provision specifically excluded any order having effect on a third party. Overall, s 78 (and s 90SL) has limited effect in practice given that the power of the court under s 79 (and s 90SM) of the FLA is so wide. In other words, an eligible party does not need to seek a declaration before asking the court for an appropriate property order. As the Full Court stated in Good and Good (1982) FLC 91-​249 (per Evatt CJ, Asche and Murray JJ): very few cases can be finally and satisfactorily determined under section 78 [nevertheless] as this case demonstrates, it may not be until the

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determination of a section 78 issue that the need to make a section 79 application becomes apparent … this is one reason why the Family Court encourages resort to section 79 rather than, or at least in conjunction with section 78.

In In the Marriage of Hickey (2003) 30 Fam LR 355, the Full Court held (per Nicholson CJ, Ellis and O’Ryan JJ) that s 79 also provides the court with the power to make a declaration in relation to property, particularly having regard to the provisions of s 80. The court noted that parties often include a declaration as part of what it called a “catch-​all” order, for example, where parties retain any property they currently possess.

Alteration of property interests: s 79 (and s 90SM) Court’s power: ss 79(1), 80 (and ss 90SM(1), 90SS) and 106A [8.30] The main power-​conferring provision is s 79(1) of the FLA. This gives the court a wide power to make any order “it considers appropriate” to alter the property interests of parties to a marriage (including any “vested bankruptcy property”). The limitation on the court’s power is contained in s 79(2) of the FLA, which restricts the exercise of the court’s power in s 79(1) to circumstances where it is only “just and equitable to do so”. The court is also required by s 79(4) of the FLA to specifically consider seven matters set out in that subsection in the exercise of the s 79(1) power. The equivalent provision for de facto couples is s 90SM of the FLA. An application for a final order (and any interim or procedural order if sought) must be in accordance with the prescribed form: FLR rr 2.01 and 5.01; FCCR rr 2.01–​2.04. There are two legal aspects which arise under s 79(1) of the FLA. First, s 79(1)(a) and (b) give the court the power to alter 133

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the interests of parties to a marriage in their property. Secondly, s 79(1)(c) and (d) specify or describe two particular orders that the court can make under this power: • “an order for a settlement of property in substitution for any

interest in the property” (eg an order that the husband transfer all his interest in the former matrimonial home to the wife and a further order that the wife transfer all her interest in the family business to the husband); and • “an order requiring either or both of the parties to the marriage”

(or if applicable, the relevant bankruptcy trustee) “to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines” (eg an order that both parties sell the former matrimonial home and that the net proceeds be divided equally). There is a similar approach in s 90SM(1)(a)–​(d) of the FLA in relation to the alteration of the property interests of de facto couples. The general powers set out in s 80(1) (and s 90SS) of the FLA can be used in conjunction with a s 79(1)/​s 90SM(1) order: see also In the Marriage of Hickey (2003) 30 Fam LR 355 discussed at [8.20]. The expression “parties to a marriage”, referred to in s 79(1), includes parties whose marriage has been dissolved or annulled, here or overseas: FLA s 71. The reference to “child of the marriage” in the second particular order would include an adult child: see Dougherty v Dougherty (1987) 163 CLR 278 (per Mason CJ, Wilson, Brennan, Dawson and Gaudron JJ). Proceedings for the alteration of property interests between de facto couples can only occur following the breakdown of the relevant relationship. It should be remembered that there is a time restriction in s 44(3) of the FLA which requires that proceedings for property or spousal maintenance be commenced within 12 months from a nullity decree or divorce decree becoming absolute, although the court has the power to grant leave to commence proceedings out of time: s 44(4); also see Whitford and Whitford (1979) FLC 134

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90-​612 (per Asche and Pawley SJJ and Strauss J); Richardson and Richardson (1999) 26 Fam LR 523 (per Mullane J); and Slocomb v Hedgewood [2015] FamCAFC 219 (per May, Ainslie-​Wallace and Johnston JJ). For de facto couples, applications must be commenced within the period of two years after the end of the de facto relationship, although the court may grant leave to file an application out of time: FLA s 44(5) and (6); also see Chancellor & McCoy [2016] FamCAFC 256 (per Bryant CJ, Thackray and Strickland JJ). The court also has the power to sign or otherwise execute an instrument which a party neglects or refuses to sign, which he or she was previously directed to do so by the court: FLA s 106A (formerly s 84).

Just and equitable consideration: s 79(2) (and s 90SM(3)) [8.40]  Section 79(2) of the FLA prohibits the court from making a s 79 order unless it is satisfied that, in all the circumstances, it is just and equitable to do so. So while the court must examine the seven specific matters referred to in s 79(4) of the FLA, this earlier provision has an overriding effect on the exercise of the court’s discretion under s 79(1) and therefore controls the way in which the court takes into account the seven considerations. The equivalent provision for de facto couples is s 90SM(3) of the FLA. In Stanford v Stanford (2012) 47 Fam LR 481; [2012] HCA 52, the High Court (majority consisting of French CJ, Hayne, Keifel and Bell JJ) laid down three “fundamental propositions” which provide useful guidance to trial judges in approaching the task under s 79 (and by implication, s 90SM): • first, a determination of a “just and equitable” outcome of an

application for property settlement begins with the identification of existing property interests (as determined by common law and equity); 135

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• secondly, the discretion conferred by the statute must be

exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity; and • thirdly, a determination that a party has a right to a division of

property fixed by reference only to the matters in s 79(4) (and by implication, s 90SM(4)), and without separate consideration of s 79(2)/​s 90SF(3), would erroneously conflate what are distinct statutory requirements: see Bevan and Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116. The “just and equitable” consideration or requirement cannot be used by the court to take into account matrimonial fault or misconduct by one or both of the parties to a marriage. Nevertheless, if the conduct is such as to impact upon, say, the value of the matrimonial property or the ability to earn income for spousal maintenance purposes, then the conduct may be relevant. In Kowaliw and Kowaliw (1981) FLC 91-​092, Baker J stated that: it does seem to me … that if a party has either by deliberate act or by economic recklessness reduced the value of assets available for distribution then the economic consequences which flow therefrom including the resultant burden to the other party are directly relevant to a consideration of the respective contributions of the parties contemplated by s 79(4).

In the subsequent case of Browne v Green (1999) FLC 92-​873 the Full Court (per Lindenmayer, Finn and Holden JJ) held that the principles stated in Kowaliw do not constitute any form of fixed code and are no more than a guideline for use in the court’s discretion. Nevertheless, in allowing the appeal, the court held that the trial judge (Moore J) had failed to explain why the circumstances of the case warranted a departure from the “Kowaliw guideline”.

Property [8.50]  The term “property” (in relation to the “parties to a marriage” or “parties to a de facto relationship”) is defined in s 4(1) 136

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of the FLA as meaning “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”. The court is concerned with all the property owned by both of the parties. In In the Marriage of Duff (1977) 29 FLR 46, the Full Court (per Watson SJ, Murray and Wood JJ) stated: it is sufficient for the purposes of this case to say that “property” means property both real and personal and includes choses in action … 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 property.

The court does not distinguish between so-​called marital or relationship assets, on the one hand, and business assets on the other: see Aroney and Aroney (1979) FLC 90-​709 (per Nygh J). This is particularly so when the matrimonial or relationship home is registered in the name of a third-​party entity. In addition, it should be noted that just as the court considers the property of the relationship, it must also consider the liabilities of the relationship. Property must be considered subject to any mortgage, charge, covenant or other encumbrance that has been imposed on it: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 (per Gibbs J; Stephen, Aicken and Wilson JJ agreeing). In other words, the net value of property is taken into account by the court, unless, in the exercise of the court’s discretion, it would not be “just and equitable” to do so. The court can only ignore these restrictions in two circumstances specified in the FLA: first, where the transaction which resulted in the restriction can be set aside under s 106B of the FLA (formerly s 85) as being a transaction that was likely to defeat an anticipated property or related order (discussed later in this Chapter at [8.280]) and secondly, in the application of the injunctive power under s 114 of the FLA, where the court can order a party to remove a home mortgage as part of an exclusive occupation order (discussed in Chapter 10). Both these situations are rare in practice, however.

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Lastly, the Full Court has held that it “is beyond controversy that in ordinary circumstances” a partnership interest is property: Best and Best (1993) FLC 92-​418 (per Fogarty, Lindenmayer and McGovern JJ). In relation to the rights of a partner, their Honours also held that “alienability or assignability … is not an essential quality of property”. While the partnership right in Best could be the subject of an assignment, that was not the situation in the subsequent case of B v B (2000) FLC 93-​002. In B v B, the trial judge (Moss J) held that the relevant partnership interest was “to be classified as a non-​ assignable chose in action” and was therefore “a personal right in the Respondent rather than a right of a proprietary nature”. On appeal, the Full Court (per Nicholson CJ, Ellis and Joske JJ), after commenting that no submissions had been made in relation to the trial judge’s finding, stated that: It would not be appropriate for us to express a concluded view in relation to his Honour’s finding. However, we should not be taken as endorsing his views.

Less controversially, the Full Court had earlier held that a partner’s right to draw upon and receive profits from the partnership is usually to be considered a financial resource: see In the Marriage of Crapp (No 2) (1979) 35 FLR 153 (per Fogarty J; Pawley SJ and Dovey J agreeing).

General approach to be taken by the court [8.60]  While the exercise of the court’s discretion is highly discretionary, it is possible to identify a usual approach to the exercise of that discretion. In Pastrikos and Pastrikos (1980) FLC 90-​897, the Full Court (per Evatt CJ, Pawley SJ and Yuill J) confirmed that it was necessary to first identify the property of the parties and, once this was done, it was then necessary to value such property. Once these steps had been achieved, the trial judge could thereafter proceed to exercise the court’s discretion. As a general rule, the relevant date for ascertaining and valuing the property is the time

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of the hearing: Warne and Warne (1982) FLC 91-​247 (per Simpson, Strauss and Hase JJ). The usual judicial approach in determining property proceedings has been outlined by the Full Court in a number of cases since Pastrikos including In the Marriage of Ferraro (1992) 111 FLR 124 (per Fogarty, Murray and Baker JJ) and In the Marriage of Hickey (2003) 30 Fam LR 355 (per Nicholson CJ, Ellis and O’Ryan JJ) where the court stated: 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 inter-​related 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 s 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.

In the period between the decisions in In the Marriage of Hickey and Stanford v Stanford (2012) 47 Fam LR 481; [2012] HCA 52, the approach in exercising the jurisdiction under s 79 (and s 90SM) of the FLA has generally been to consider whether the order proposed to be made, after consideration of the seven groups of matters specified in s 79(4)/​s 90SM(4), is just and equitable. However, now the High Court has emphasised that the question is whether it is just and equitable to make any order at all under s 79 (and by implication s 90SM). Furthermore, as stated earlier in this Chapter at [8.40], the High Court said that the matters to be considered in answering the question under s 79(2) (and by implication s 90SM(3)) are not to be “conflated” with the matters

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contained in s 79(4) (and by implication s 90SM(4)). The matters which can be taken into account in determining whether it is just and equitable to make an order do not admit of “exhaustive definition”, but there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage”: see Stanford v Stanford; Bevan and Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116. In summary, the general approach to the determination of a dispute under s 79 (or s 90SM) for parties who have separated involves a consideration of the following: (a) the identification and valuation of the property, liabilities and financial resources of the parties (or either of them); (b) a determination that it is just and equitable to make an order adjusting the parties legal and equitable interests in that property (ss 79(2) and 90SM(3) of the FLA); and if so (c) the identification and assessment of the “contributions” of each party to the marriage (or de facto relationship) (s 79(4)(a)–​(c) or s 90SM(4)(a)–​(c) of the FLA) (at [8.110]–​[8.170]); (d) the identification and assessment of the “s 75(2) factors” (or “future needs”) of each of the parties (s 79(4)(d)–​(g) or s 90SM(4)(d)–​(g) of the FLA) (at [8.180]–​[8.280]); and (e) given that s 79(1) and s 90SM(1) of the FLA empowers the court to make such orders affecting the parties’ interest in the property as are appropriate, then determine what order, if any, altering the parties’ interests are “appropriate” to enable the parties’ entitlements as determined pursuant to steps (c) and (d) to be achieved.

Superannuation [8.70]  The issue of a spouse’s superannuation entitlements is a complex matter. Until the 2002 commencement of Pt VIIIB of the FLA (which was amended in 2009 to cover de facto relationships and further amended in 2018 to provide for a complete re-​ numbering of the relevant provisions: see Civil Law and Justice 140

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Legislation Amendment Act 2018 (Cth)), the court approached superannuation as a financial resource rather than as property, notional or otherwise: In the Marriage of Crapp (No 2) (1979) 35 FLR 153 (per Fogarty J; Pawley SJ and Dovey J agreeing). If the superannuation had not vested, then it could not be treated as property, but was, nevertheless, relevant to a property application by virtue of being a maintenance consideration under s 79(4)(e) of the FLA. Alternatively, the court might use the adjournment power and defer its consideration until the superannuation entitlement vested, thus becoming matrimonial property: FLA s 79(5) and (7); also see O’Shea and O’Shea (1988) FLC 91-​964 (per Smithers J); Carson v Carson (1999) FLC 92-​835 (per Kay, Holden and Dawe JJ). Where the contributor spouse is also the trustee or controller of the superannuation fund (eg a family company scheme), then the court considered the superannuation as “property”: see Wunderwald and Wunderwald (1992) FLC 92-​315 (per Nicholson CJ, Strauss and Cohen JJ); Stay and Stay (1997) FLC 92-​751 (per Nicholson CJ, Ellis and Lindenmayer JJ). The two main aims of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) (that added Pt VIIIB to the FLA in late 2002) were to: • enable superannuation entitlements to be treated as “prop-

erty” that is capable of division on the breakdown of a marriage (FLA ss 4(1) and 90XC); and • bind the third-​ party trustees who manage superannuation

entitlements: FLA s 90XZD. The new provisions also enable the parties to a marriage to enter into a “superannuation agreement” to deal with a member spouse’s superannuation entitlements. A court cannot make an order in relation to the relevant superannuation entitlements if such an agreement validly exists: FLA s 90XO. A superannuation agreement is a type of “financial agreement” under Pt VIIIA of the FLA, and consequently, it must comply with the formation requirements (discussed later in this Chapter at [8.190]). 141

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Where parties are unable to reach an agreement with respect to a spouse’s superannuation entitlements, the court may now make orders in relation to superannuation entitlements but only in accordance with the prescribed terms of new Pt VIIIB, regardless of whether the parties have any other property in respect of which the court could make an order: FLA s 90XS. Although the relevant orders are made in accordance with the prescribed terms of Pt VIIIB, they are still made under s 79 (or s 90SM) of the FLA and therefore will be generally subject to all the same provisions as other property orders. This does not mean that superannuation is defined as “property”, but rather extends the court’s jurisdiction to make orders with respect to superannuation entitlements: see Coghlan and Coghlan (2005) FLC 93-​220 (per Bryant CJ, Finn and Coleman JJ; Warnick and O’Ryan JJ agreeing in the result, but disagreeing in part as to the reasoning). There are two specific orders that the court can make in respect of superannuation entitlements. They are “splitting orders” and “flagging orders”.

Splitting orders [8.80] Section 90XT(1) of the FLA provides that the court may order that up to 100 per cent of the superannuation entitlement of a member spouse can be paid to a non-​member spouse. Before making a splitting order, the court must determine the value of the superannuation interest: FLA s 90XT(2); see also Family Law (Superannuation) Regulations 2001 (Cth). Provided service is complied with, splitting orders will bind third-​party trustees: FLA s 90XZD(1). As a splitting order is made in the context of overall property orders pursuant to s 79 (or s 90SM) of the FLA, the court retains discretion as to how superannuation interests will be treated in a particular case. This was confirmed by the majority of the Full Court in Coghlan and Coghlan (2005) FLC 93-​220 ([8.70]). As to the exercise of that discretion, Bryant CJ, Finn and Coleman JJ commented that: 142

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If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:

(a) value the superannuation interest (according to the regulations if an order under Pt VIIIB is sought or according to the regulations or otherwise if no order is sought);

(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;

(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and



(d) ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Pt VIIIB in relation to superannuation interests are just and equitable.

It is also worth noting that the provisions of FLA s 79A (or s 90SN) (discussed later in this Chapter at [8.220]) may apply to a splitting order. Consequently, for example, it would be possible to set the order aside or vary the order if it became impracticable to carry it out: FLA s 79A(1)(b) or s 90SN(1)(b).

Flagging orders [8.90] Section 90XU(1) of the FLA allows the court to “flag” a superannuation entitlement rather than splitting its payment. The flagging order may: • injunct the trustee from paying out the superannuation entitle-

ment (FLA s 90XU(1)(a)); and • require the trustee to notify the court when a superannuation

entitlement becomes payable: FLA s 90XU(1)(b). In deciding whether or not to make a flagging order, the court may take into account such matters as it considers relevant, and in particular, “the likelihood that a splittable payment will soon become payable in respect of the superannuation interest”: FLA s 90XU(2). 143

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Statutory considerations: ss 79(4) and 81 (ss 90SM(4) and 90ST) [8.100]  Section 79(4) (and s 90SM(4)) of the FLA requires the court to consider seven matters when “considering what order (if any) should be made” under s 79(1) (or s 90SM(1)). Broadly speaking, the seven matters are: • the direct or indirect financial contributions made to the acqui-

sition, conservation or improvement of property (s 79(4)(a); s 90SM(4)(a)); • the direct or indirect non-​ financial contributions made to

the acquisition, conservation or improvement of property (s 79(4)(b); s 90SM(4)(b)); • the contribution to the family as homemaker and/​or parent

(s 79(4)(c); s 90SM(4)(c)); • the effect of a proposed order on a party’s earning capacity

(s 79(4)(d); s 90SM(4)(d)); • the spousal maintenance matters in FLA s 75(2) (or s 90SF(3))

(s 79(4)(e); s 90SM(4)(e)); • any other order made under the FLA (affecting a party or

child of the marriage) (s 79(4)(f); s 90SM(4)(f)); and • any child support payments (actual or possible): s 79(4)(g);

s 90SM(4)(g). In other words, these seven considerations more or less concern two broad matters: • retrospective contributions (made by the parties to property or

family) (FLA s 79(4)(a)–​(c); s 90SM(4)(a)–​(c)); and • prospective needs (of the parties): s 79(4)(d)–​(g); s 90SM(4)(d)–​(g).

Section 81 (and s 90ST) of the FLA should not be overlooked. This section provides that: In proceedings under [Pt VIII], other than proceedings under [s 80 or s 90SL] 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

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between the parties to the marriage [or de facto relationship] and avoid further proceedings between them.

This is arguably a legislative policy statement. In In the Marriage of Crapp (No 2) (1979) 35 FLR 153, Fogarty J stated that: firstly, s 81 is in the nature of an exhortation by the legislature to the courts and is not a separate source of power and secondly the section itself states that the policy of making orders which finally determine the financial relationship between the parties and avoid further proceedings is only to be taken “as far as (is) practicable”.

Past contribution factors Financial contributions: ss 79(4)(a) and 90SM(4)(a) [8.110]  Examples of direct financial contributions to the acquisition, conservation and/​or improvement of property are obvious. A common example is a party who brings into the relationship substantial real estate and/​or personal property. For example, in Lee Steere and Lee Steere (1985) FLC 92-​626 the husband brought the “family farm” into the marriage and the court obviously considered such was a direct financial contribution. It is worth noting, however, that in relatively long marriages or de facto relationships, the significance of direct financial contributions, particularly those made at the beginning of the relationship, may be eroded by both the passage of time and the offsetting effect of the other party’s contributions since the commencement of the relationship: see Bremner v Bremner (1995) FLC 92-​560 (per Nicholson CJ, Baker and Tolcon JJ). Nevertheless, in Pierce v Pierce (1999) FLC 92-​844 the Full Court (per Ellis, Baker and O’Ryan JJ) found that the trial judge (Chisholm J) had erred in his assessment of the contributions by failing to attach sufficient weight to the greater initial contributions of the husband. Their Honours stated: 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

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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.

The Full Court re-​affirmed this view in In the Marriage of Brown (2005) 33 Fam LR 246 (per Kay, May and Boland JJ). In contrast to the decision in Pierce, in Brown the court found that the trial judge had placed too much weight on the husband’s contribution of a cane farm that he had acquired earlier in the marriage. An indirect financial contribution may arise where one spouse assists the other in an unpaid capacity in a business, or provides comfort and support while their partner gains a qualification: see Talbot v Talbot (1979) FLC 90-​696 (per Brindsen J). In In the Marriage of Whiteley (1992) FLC 92-​304, Rowlands J found that, on the balance of probabilities, the wife was an inspiration for the husband’s artistic and creative activities.

Gifts, compensation and windfalls [8.120]  In situations where a gift of property has been made to either or both of the parties, the obvious question which arises is who actually received the property for the purpose of a direct financial contribution to the acquisition of property. Generally, the answer is determined by reference to the donor’s intention: see Rainbird and Rainbird (1977) FLC 90-​256 (per Wood J); Freeman and Freeman (1979) FLC 90-​697 (per Evatt CJ; Emery SJ and Hogan J agreeing). In a situation of a gift by parents/​parents-​in-​law, it may be relevant that the property is registered in the son/​daughter’s name only. In other words, it may be evidence that the property came to him or her only as a gift: see Gosper and Gosper (1987) FLC 91-​818 (per Fogarty J). Unless there is clear evidence as to the intention of the donor, then it is more likely that the relevant child/​party can claim the gift as a contribution factor: see Kessey and Kessey (1994) FLC 92-​495 (per Baker, Finn and McCall JJ). 146

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If a party gains compensation or a windfall (prior to separation), then it may simply be treated by the court as an increase in the property available for distribution: see Zappacosta and Zappacosta (1976) FLC 90-​089 (per McCall J). Nevertheless, the preferred approach is to analyse these matters as a contribution (by one or both parties) rather than a windfall: see Holmes and Holmes (1990) FLC 92-​181 (per Cohen J); Zyk and Zyk (1995) FLC 92-​644 (per Nicholson CJ, Fogarty and Baker JJ). In relation to a post-​separation lottery win, see Farmer v Bramley (2000) FLC 93-​ 060 (discussed later in this Chapter at [8.150]).

Non-​financial contributions: ss 79(4)(b) and 90SM(4)(b) [8.130]  An obvious example of direct non-​financial contributions is home renovations. An example of an indirect non-​financial contribution may be supporting a partner during the home renovations or during his or her studies (if not already a contribution under s 79(4)(a) or (c) or s 90SM(4)(a) or (c) of the FLA).

Global or asset-​by-​asset approach [8.140]  There are two judicial approaches to the court’s assessment of overall contribution under s 79(4)(a) and (b) or s 90SM(4)(a) and (b) of the FLA: • “asset-​by-​asset approach”: the court should determine the var-

ious contributions that each party has made to each item of property to the extent that it is both possible and reasonable in all the circumstances, and thereby form an opinion of the respective overall contribution that each party has made to property generally; and • “global approach”: the court should not attempt any precise

asset-​ by-​ asset assessment of the parties’ contributions but should determine the overall contribution that each party has made to the totality of their past and present property. 147

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In Norbis and Norbis (1983) 9 Fam LR 385, the Full Court (per Barblett SJ, McGovern and Strauss JJ), in reversing the decision of the trial judge (McGovern J) to adopt an “asset-​by-​asset approach”, endorsed the use of the “global approach” unless the circumstances warranted the adoption of the asset-​by-​asset approach. The Full Court’s decision was, in turn, reversed on appeal to the High Court: see Norbis v Norbis (1986) 161 CLR 513 (per Mason, Wilson, Brennan, Deane and Dawson JJ). While the members of the High Court differed as to the extent to which the Full Court could give guidance as to the matter of assessment, the court was unanimous in deciding that the approach of the trial judge was within his discretion: • Mason and Deane JJ held that the use of either the asset-​by-​asset

or global approach may be adopted by a trial judge but that the correct use of either approach would depend on the particular circumstances of each case. Nevertheless, their Honours noted that the global approach is “more convenient”. Their Honours also stated that the Full Court could prescribe that the global approach be used as the guideline to promote uniformity of approach within the court, but that, on these facts, the trial judge legitimately applied the asset-​by-​asset approach. • Wilson and Dawson JJ noted that the legislation clearly

neglected to indicate which approach should be adopted and that this enabled the court to determine each case on its own particular facts. Their Honours certainly did not approve of the Full Court’s prescribing guidelines. • Brennan J, while agreeing with many of the comments of

Mason and Deane JJ, also did not approve of the Full Court’s prescribing guidelines. His Honour stated that: the proposition with which I am unable to agree with is this: that an appellate court which gives guidance as to the manner in which a statutory discretion should be exercised may prescribe that such guidance should have the force of a binding legal rule … It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory

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discretion is determined by the statute; it cannot be narrowed by a legal rule devised by a court to control its exercise.

Homemaker and parent contributions: ss 79(4)(c) and 90SM(4)(c) [8.150] The primary purpose of this consideration is to enable the court to take into account domestic activities of parties to a marriage without regard to their economic consequences, even though the economic benefits to the family are obvious. While s 79(4)(c) or s 90SM(4)(c) of the FLA states that it is the contribution by the party to “the welfare of the family constituted by the parties to the marriage [or de facto relationship] and any children of the marriage [or de facto relationship]”, the paragraph can apply when there are no children: see In the Marriage of G (1984) FLC 91-​582 (per Nygh J); Jackson and Jackson (1988) FLC 91-​904 (per Mullane J). Under present law, there is no presumption of equality (as a starting point) as between the contributions of homemaker and parent and the contributions to the property of the marriage or de facto relationship. In Mallet v Mallet (1984) 156 CLR 695 (per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ), the High Court rejected an equalising approach on the basis that it purported to narrow the discretion available in s 79(1) (and by implication s 90SM(1)) of the FLA. In Mallet, Gibbs CJ summed up the court’s objection to the “equality is equity” principle when he said: Parliament has not provided, expressly or by implication, that the contribution of one party as homemaker or parent and the financial contribution made by the other party are deemed to be equal, or that there should, on divorce, either generally, or in certain circumstances, be an equal division of property, or that equality of division should be the normal or proper starting point for the exercise of the court’s discretion. Even to say that in some circumstances equality should be the normal starting point is to require the courts to act on a presumption which is unauthorised by the legislation.

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Similar views were expressed by both Wilson and Dawson JJ. In his judgment in Mallet, Mason J identified two flaws in the equal weighting approach: the first is that it has been elevated to the status of a legal presumption; the second is that it obscures the need to make an evaluation of the respective contributions of husband and wife by arbitrarily equating the direct financial contribution of one to the indirect contribution of the other as homemaker and parent.

Nevertheless, it is interesting to note that Mason J also accepted that: a conclusion in favour of equality of contribution will more readily be reached where the property in issue is the matrimonial home or superannuation benefits or pension entitlements and the marriage is of long standing. It will be otherwise when the property in issue consists of assets acquired by one party whose ability and energy has enabled the establishment or conduct of an extensive business enterprise to which the other party has made no financial contribution and where the other party’s role does not extend beyond that of homemaker and parent.

Deane J was more relaxed about the “reference to equality” and thought it may have some merit as a “starting point”, but agreed that there was no general rule or presumption in favour of equality. In In the Marriage of Ferraro (1992) 111 FLR 124, the Full Court (per Fogarty, Murray and Baker JJ), in referring to Mallet, accepted “that Parliament had not provided that a wife’s homemaker contribution and the husband’s financial contribution are deemed to be equal”. Nevertheless, the court went on to say that: it is equally true to say that the Parliament has not provided that they cannot or may not be equal. It is a matter of evaluating those contributions in the individual case but against an evolving social and legislative background … There is also, we think, an evolving social background which gives greater emphasis to the equality and partnership concepts in a marriage and, no doubt, this evolutionary process will continue.

The Full Court also went on to indicate that the court does not need to make a detailed analysis of the performances of the

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parties’ respective roles, and that within the so-​called “normal range” of such roles, no detailed assessment is appropriate. In McLay and McLay (1996) FLC 92-​667, the Full Court (per Nicholson CJ, Fogarty and Dessau JJ) provided further “guidance” in relation to the court’s duty to evaluate the disparate contributions to which s 79(4) (and by implication s 90SM(4)) of the FLA refers: the reference to “normal range” in Ferraro … is not a return to a presumption of equality as a starting point or any other presumption or starting point but is a practical recognition of the circumstance that in many marriages each party contributes in ways which might be described as the normal way in our society and that in any qualitative evaluation of those matters the likely outcome is one of equality … In many cases any assessment of the facts readily makes it clear that an outcome of equality within paras (a) to (c) is most likely and that a lengthy trial in which those facts are examined in detail will produce no different result.

This approach by the court appears to suggest that a party will be under a significant evidentiary burden to justify an assessment of the parties’ contributions under s 79(4)(a)–​(c) or s 90SM(4)(a)–​(c) of the FLA as other than equal. In Farmer v Bramley (2000) FLC 93-​060 the court considered whether a party to a marriage’s contribution under s 79(4)(c) of the FLA must relate to the present assets of the relationship. In this case the parties separated in 1995 after cohabiting for nearly 12 years. At the time of separation the parties had no significant assets. However, 18 months after the separation, the husband won $5 million in a lottery and the wife subsequently commenced proceedings for property adjustment. The trial judge (Purdy J) awarded the wife (who had subsequently divorced the husband and remarried) the sum of $750,000. The husband’s appeal to the Full Court (per Finn and Kay JJ; Guest J dissenting) was unsuccessful. One issue raised was whether an entitlement based on the homemaker and parent contributions could only be satisfied out

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of the property available to the parties at the time the contribution was made. In her judgment, Finn J rejected such a limitation as it was unsupported by any wording in the FLA or any judicial authority. Similarly, Kay J, after noting that the task of the court is to evaluate the contributions made by the parties from the commencement of cohabitation “until the time of the hearing”, stated that there is nothing in the FLA that requires the relevant s 79(4)(a), (b) and (c) contributions to be measured only in terms of “what did either party contribute to the assets of which they are presently possessed?” However, Guest J, in his dissenting judgment, stated that: Although there need not be a specific nexus between the property and the contribution, they both must occupy the same time and space, that is, have parallel or fractional contemporaneity. If this were not so, it would disavow the clear law that the time at which a contribution was made to an asset or income is relevant.

Special contributions [8.160]  One issue which has arisen in the context of determining the respective contributions of the parties under s 79(4)(a)–​(c) or s 90SM(4)(a)–​(c) of the FLA is whether a contribution can be considered so “special” or “extra” that it should attract greater weight. This has arisen both in the context of financial contributions (ie ss 79(4)(a) and 90SM(4)(a) (see JEL v DDF (2001) FLC 93-​075) and ss 79(4)(c) and 90SM(4)(c) (see Kennon and Kennon (1997) FLC 92-​757, discussed later in this Chapter at [8.170])). In Figgins v Figgins (2002) FLC 93-​ 122, the Full Court (per Nicholson CJ, Ellis and Buckley JJ) reconsidered the issue of “special contributions”. In this case the trial judge (Carter J) held that a sizable inheritance received by the husband was not a windfall but rather a “special factor”. The Full Court held that the trial judge had erred in finding that the inheritance was a special factor of skill or capacity that had produced the result that there was a loading in favour of the party providing it. In their joint judgment, Nicholson CJ and Buckley J questioned whether the so-​ called doctrine of “special contribution” should be reconsidered: 152

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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.

The issue of “special contributions” arose again in Hill and Hill (2005) FLC 93-​209. While the Full Court (per Kay, Holden and Boland JJ) did not “reconsider” the so-​ called doctrine, their Honours did question whether the increase in the parties’ asset pool (post-​separation) could be explained by either the husband’s “special stockbroking skills” or just a windfall due to “market forces”. However, in the more recent case of Kane and Kane [2013] FamCAFC 205 the Full Court (per Murphy J; May and Johnston JJ agreeing) stated that “the notion of ‘special contributions’ necessarily predisposes matters to an outcome that may not otherwise be available upon a proper assessment of all the contributions”. The problem with so-​called doctrine: … 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.

Family violence [8.170] It is worth noting that while the court is specifically directed to consider the issue of family violence and family violence orders in relation to children’s matters, it may only examine this issue in property and maintenance proceedings if there are financial consequences to a party’s violent behaviour. Nevertheless, in Kennon and Kennon (1997) FLC 92-​757, the court signalled a significant change of attitude in relation to the issue 153

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of the relevance of family violence in property proceedings. In their separate judgment, Fogarty and Lindenmayer JJ commented on the marked changes in recent times in the perceptions, both legal and social, about family violence and its associated impact on family law proceedings. They stated that: 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. We prefer this approach to the concept of “negative contributions”.

Similarly, in his judgment in Kennon, Baker J (who dissented from the majority decision) stated that: the incidence of domestic violence in a marriage would generally be a relevant factor when the court comes to assess contributions pursuant to the provisions of s 79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.

Future needs and the s 75(2) factors: ss 79(4)(d)–​(g) and 90SM(4)(d)–​(g) Earning capacity: ss 79(4)(d) and 90SM(4)(d) [8.180]  Section 79(4)(d) or s 90SM(4)(d) of the FLA requires the court to take into account, when making a property order, “the effect of any proposed order upon the earning capacity of either party to a marriage [or to the de facto relationship]”. In Lee Steere and Lee Steere (1985) FLC 92-​626, the trial judge (Anderson J), in considering s 79(4)(d), ordered the husband to pay the wife a certain sum of money which it was argued was the maximum amount that he could afford without selling the farm. 154

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On appeal, the Full Court (per Fogarty, Maxwell and Nygh JJ) increased the payment to the wife considerably and held that: [paragraph] (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 … 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 … Paragraph (d) is, in our view, mainly relevant to the question of the ways and means in which the entitlement to a party can be met.

The court then considered alternatives such as payments by instalment or postponing the necessary sale for a time in return for interim and realistic spousal maintenance and child support.

Spousal maintenance matters: ss 79(4)(e) and 90SM(4)(e) [8.190] The effect of s 79(4)(e) or s 90SM(4)(e) of the FLA is to incorporate all the factors relevant to the consideration of spousal maintenance: FLA s 75(2); s 90SF(3). In other words, the court has the power to make a further adjustment of property between the parties to allow for any disparity in their post-​settlement financial positions. In particular, a further allowance can be made in favour of the less financially secure party as against the party who has significant financial resources, including earning capacity: DJM v JLM (1998) FLC 92-​816 (per Baker, Kay and Morgan JJ). The reference to s 75(2)(o) or s 90SF(3)(o) of the FLA clearly entitles the court to consider “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”, such as an inheritance expectation: White and Tulloch v Tulloch (1995) FLC 92-​640 (per Fogarty, Kay and Hilton JJ). 155

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The size of the further “needs” adjustment will obviously depend upon the facts of each individual case. In Clauson and Clauson (1995) FLC 92-​ 495 the Full Court (per Barblett DCJ, Fogarty and Mushin JJ) stated that: there is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in the range of 10–​20 per cent. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.

Other orders: ss 79(4)(f) and 90SM(4)(f) [8.200]  Section 79(4)(f) or s 90SM(4)(f) of the FLA requires the court to consider the effect of “any other order” made under the FLA affecting a party to, or a child of, the marriage or de facto relationship. The paragraph is fairly straightforward, and its purpose is to ensure that the court does not consider a property order in isolation, particularly a spousal maintenance order, a child order and/​or court-​ordered child maintenance (as distinct from child support assessed under the child support scheme which is covered in s 79(4)(g) or s 90SM(4)(g) of the FLA).

Child support: ss 79(4)(g) and 90SM(4)(g) [8.210]  Section 79(4)(g) or s 90SM(4)(g) of the FLA requires the court to consider any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage (or to the de facto relationship) “has provided, is to provide, or might be liable to provide in the future, for a child of the marriage [or de facto relationship]”.

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Setting aside orders altering property interests: ss 79A and 90SN [8.220]  Section 79A(1) (and s 90SN) of the FLA enables the court to vary or set aside a property order in five situations: • where there has been a miscarriage of justice (s 79A(1)(a);

s 90SN(1)(a)); • where it has become impractical for the original order to be

carried out (s 79A(1)(b); s 90SN(1)(b)); • where a person has defaulted in carrying out an obligation

imposed by the order (s 79A(1)(c); s 90SN(1)(c)); • where new circumstances of an exceptional nature have

arisen relating to the care, welfare and development of a child of the marriage and there would be a hardship if the order is not set aside (s 79A(1)(d); s 90SN(1)(d)); and • where a proceeds of crime order has been made covering

property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage: s 79A(1)(e); s 90SN(1)(e). In addition, a court may vary or set aside a property order (or make a new property order) where the parties to the original order consent to it being varied or set aside: FLA s 79A(1A); s 90SN(2). In making an order under either s 79A or s 90SN of the FLA the court must have regard to, and protect, the interests of a bona fide purchaser or other interested person: FLA s 79A(2); s 90SN(6). For the s 79A(1)(a) or s 90SN(1)(a) provision to apply, a miscarriage of justice must be demonstrated by reason of one of the following categories or circumstances: • fraud; • duress; • suppression of evidence (including failure to disclose rele-

vant information);

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• the giving of false evidence; • “or any other circumstance”.

In other words, the court must be satisfied that the listed category or circumstance resulted in a miscarriage of justice. The miscarriage of justice must arise out of the legal process. The incompetence of a legal representative, unless equivalent to no representation or perverse, does not of itself affect the judicial process: see Clifton and Stuart (1991) FLC 92-​194. This view was reaffirmed in Prior and Prior (2002) FLC 93-​105. In this case the wife argued that the relevant consent orders should be set aside under s 79A(1)(a) for three reasons: first, she was unrepresented (although she had been represented in earlier stages of the proceedings); secondly, she had been unable to understand the financial evidence led by the husband and had not had professional assistance to do so; and thirdly, the husband’s legal representatives had placed pressure on her to settle the matter (although she specifically conceded that the pressure in question did not amount to duress). The Full Court (per Nicholson CJ, Buckley and Kay JJ) disagreed and dismissed the appeal. Not surprisingly, the “circumstance” giving rise to the miscarriage of justice must have existed before or at the time that the original order was obtained: see Public Trustee v Gilbert (1991) FLC 92-​211 (per Fogarty, Nygh and Wilczek JJ). In In the Marriage of Gebert (1990) 99 FLR 147, the Full Court (per Nicholson CJ, Baker and Burton JJ) stated: we consider the words “any other circumstance” appearing in s 79A(1)(a) whilst not to be read ejusdem generis with fraud, duress, suppression of evidence or the giving of false evidence, are intended to cover other situations where, for one reason or another, a miscarriage of justice has occurred.

In other words, while “any other circumstance” does not have to be of the same type as the other circumstances like fraud, which are specifically mentioned, the miscarriage of justice element must still be proved to the court’s satisfaction: see Elliot and Wilcox (1996) FLC 92-​ 687 (per Nicholson CJ, Baker and Lindenmayer JJ). 158

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In financial proceedings, the parties are under an obligation to make full and frank disclosure in accordance with the FLR. In In the Marriage of Morrison (1995) FLC 92-​573 the Full Court (per Fogarty, Baker and Kay JJ) stated 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 a 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 … the obligation to make a full and frank disclosure is regarded as so crucial to the functioning of this jurisdiction that the deliberate failure by one party to meet that obligation may result in the court drawing adverse inferences against the non-​disclosing party where there is material upon which such inferences can be based.

The court further stated that the failure by the husband to disclose the true financial position of an asset “robbed the wife” and was of a magnitude that amounted to a miscarriage of justice.

Third parties and competing claims [8.230] Third parties may be relevant for two reasons: first, because a third party may wish to intervene in the proceedings between the parties in order to protect property; or, secondly, because a third party is the legal owner of property which is the subject of a family law claim.

Intervention in proceedings [8.240]  Part IX of the FLA deals with intervention by third parties: see in particular FLA s 92. The court has a discretion to allow a third party to intervene in ancillary relief proceedings “upon such conditions as the court considers appropriate”: FLA s 92(1) and (2). In such circumstances, the third party intervener “shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party”: FLA s 92(3). 159

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In Prince and Prince; General Credits Australia Ltd (Intervener) (1984) FLC 91-​ 501, the Full Court (per Evatt CJ, Pawley and Fogarty JJ) held that a third-​party intervener will, subject to appeal rights, be bound by the court’s determination. Likewise, if a third party is permitted to be heard on an issue, without intervening, the third party may be bound by the determination of that issue. Evatt CJ and Fogarty J (in separate judgments) stated that the issue of whether a third party should be permitted to be heard without formally intervening, or whether it should be required to intervene, should be determined by the extent to which the third party sought involvement, and whether it was the third party’s intention to call evidence, cross-​examine witnesses and make submissions.

Corporate and other entities [8.250]  The fact that property (and real estate in particular) is registered in the name of a third party (such as a company) does not prevent the court from making a property order, or issuing an injunction, notwithstanding that doing so may interfere with the company’s rights as a separate legal entity or the rights of the individual directors of the company. In Re Dovey; Ex parte Ross (1979) 141 CLR 526, Gibbs J stated (Barwick CJ and Mason J agreeing): it is impossible to suppose that Parliament intended that a husband might place the matrimonial home beyond the jurisdiction of the Family Court simply by vesting it in a private company which he himself controls: such a result would make it impossible for the Family Court to perform its functions in many cases.

Nevertheless, some caution was historically needed when dealing with third parties, and, in particular, companies. This caution has largely been superseded by the commencement of Pt VIIIAA in 2004 (and discussed at [8.270]). In Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337, the High Court (per Barwick CJ, Gibbs, Mason, Stephen, Aicken and Wilson JJ; Murphy J dissenting) held that the Family Court does not have the power under s 114 of the FLA (the injunctions power) to deprive a third party

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of an existing right or to impose upon a third party a duty which he or she would not otherwise be liable to perform. Nevertheless, it is worth noting that Gibbs J (with whom Stephen, Aicken and Wilson JJ agreed) found that there are two exceptions to this prohibition, namely: • where the third party’s supposed rights are a “sham”, and have

the effect of assisting a party to a marriage to evade obligations under the FLA; and • where the third party, such as a company, is in effect a “pup-

pet” under the effective control of a party to a marriage.

Competing claims [8.260] In relation to property settlements, the court ascertains the value of the property of the parties to a marriage by deducting from the value of their assets the value of their total liabilities: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337. In the case of encumbered assets, their value is ascertained by deducting the amount of the secured liability from the gross value. However, where an asset is not encumbered and moneys are owed by the parties (or one of them) to an unsecured creditor (ie third party), the court will need to investigate the bona fides of the claim and ascertain the true value of the property by again deducting the unsecured liability. Nevertheless, the court may decline to accept an unsecured liability in circumstances where the liability is vague or uncertain, or it is unlikely that it will be enforced, or it was unreasonably incurred. In In the Marriage of Biltoft (1995) 126 FLR 385 the Full Court (per Nicholson CJ, Ellis and Buckley JJ) stated that: there is no requirement [in the FLA] that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the court making an order under s 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse.

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The court went on to note that: there is an obligation on both parties to disclose any significant creditors or any significant claim against either of them by a third party. If, as a result of the order of the court in the property proceedings, the ability of a creditor or claimant to recover his or her debt or claim is likely to be affected, notice of the Family Court proceedings must be given to that creditor or claimant. He/​she may then intervene in the Family Court proceedings and either seek a stay of those proceedings or some appropriate order which recognises his/​her rights.

Part VIIIAA [8.270]  The power under the FLA to deal with third parties, and particularly creditors, changed significantly in late 2004 with the commencement of Pt VIIIAA, as amended by the Family Law Amendment Act 2003 (Cth). The FLA was further amended in 2009 to extend Pt VIIIAA to de facto financial causes: s 90ST; also see Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). As previously discussed, the effect of the High Court’s decision in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 was that the Family Court cannot make an order if its effect is 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 relatively new Pt VIIIAA now overrides the effect of the Ascot Investments case. The court now has wide powers to make certain orders and injunctions against third parties. Under s 90AE(1) of the FLA the court may now make any of the following orders in property proceedings: (a) an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor (s 90AE(1)(a)); (b) an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage

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for that party in relation to the debt owed to the creditor (s 90AE(1)(b)); (c) an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made (s 90AE(1)(c)); (d) an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party: s 90AE(1)(d). Under s 90AE(2), the court may also make other orders in property proceedings that either direct a third party to do something in relation to the property of a party to the marriage, or alter the rights, liabilities or property interest of the third party in relation to the marriage. Although the court’s new powers appear to be wide, they can only be exercised if the order is reasonably necessary or appropriate to effect a division of property between the parties to the marriage (s 90AE(3)(a)), and if the order concerns a debt of a party to the marriage, it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full: s 90AE(3)(b). In addition, the court must be satisfied that the third party has been accorded procedural fairness in relation to the making of the order (s 90AE(3)(c)) and that, in all the circumstances, it is just and equitable to make the order: s 90AE(3)(d). It must also take into account the following matters (s 90AE(3)(e) and (4)): (a) the taxation effect (if any) of the order on the parties to the marriage (s 90AE(4)(a)); (b) the taxation effect (if any) of the order on the third party (s 90AE(4)(b)); (c) the social security effect (if any) of the order on the parties to the marriage (s 90AE(4)(c)); (d) the third party’s administrative costs in relation to the order (s 90AE(4)(d));

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(e) if the order concerns a debt of a party to the marriage —​the capacity of a party to the marriage to repay the debt after the order is made (s 90AE(4)(e)); (f) the economic, legal or other capacity of the third party to comply with the order (s 90AE(4)(f)); (g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters —​those matters (s 90AE(4)(g)); and (h) any other matter that the court considers relevant: s 90AE(4)(h). In addition to the orders that can now be directed at third parties, s 90AF of the FLA gives the court power to make orders or injunctions in s 114 proceedings. This is discussed in Chapter 10. An application for special leave to appeal to the High Court challenging the validity of the provisions in Pt VIIIAA of the FLA was considered in 2006 and special leave was refused: see Slazenger v Hunt (S108/​2005); Lederer v Hunt (S109/​2006) (1 September 2006).

Transactions to defeat claims: s 106B [8.280] Section 106B(1) (formerly s 85(1)) of the FLA gives the court the power to set aside transactions or dispositions which are made or proposed to be made to defeat an existing or anticipated order under the FLA regardless of intention. The court has the power to direct that the proceeds of the transaction be paid into court, or it can otherwise deal with the relevant property: FLA s 106B(2). The court is required, however, to have regard to the interests of any bona fide purchaser or other person interested: FLA s 106B(3). In Abdullah and Abdullah (1981) FLC 91-​003, the husband sold his interest in a property at well below market value. The wife subsequently obtained a then s 85 order, as this sale coincided with her application for property orders. The trial judge (Baker J) described the sale as: 164

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a sham … the circumstances lead me to the conclusion that Mr [J]‌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 that 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 [J] 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.

The court has the power to order any person who acted “in collusion” to pay the costs of any other party, including the bona fide purchaser incidental to setting aside or restraining the instrument or disposition: FLA s 106B(4). In Gould and Gould (1993) FLC 92-​434, the Full Court (per Fogarty J; Nicholson CJ and Finn J agreeing) rejected a submission that the former s 85 was unconstitutional. Moreover, the court rejected a further submission that s 85 was conditional upon the third party being the alter ego of a party to a marriage. This was re-​affirmed by O’Ryan J in Hunt and Hunt [2006] FamCA 167.

Ante-​nuptial and post-​nuptial settlements: s 85A [8.290]  Section 85A(1) of the FLA provides that: the court may … make such orders as [it] considers just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-​nuptial or post-​nuptial settlements made in relation to the marriage.

Once the court determines that it is appropriate for an order to be made under this provision, it must take into account the matters set out in s 79(4) of the FLA, so far as they are relevant, before making the order: FLA s 85A(2). 165

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In Plut and Plut (1987) FLC 91-​834, the trial judge (Lindenmayer J) rejected the proposition that the legal effect of a pre-​nuptial agreement is unaffected by the provisions of the FLA and, in particular, ss 79 and 85A. His Honour stated that the effect of s 85A is to make it: even clearer that no ante-​nuptial or post-​nuptial agreement (other than a post-​nuptial agreement approved by the court pursuant to s 87) can preclude the court from exercising its powers under that section … In my opinion also, no such agreement can preclude a party to a marriage from invoking the powers of the court under ss 79 and 85A.

The interests of third parties in any ante-​nuptial or post-​nuptial settlement must be respected notwithstanding s 85A. In the case of Knight and Knight (1987) FLC 91-​854, the trial judge (Nygh J) stated that: a settlement cannot be described as being a settlement in relation to a marriage if persons outside of the marriage are substantial potential beneficiaries. The purpose of s 85A is to allow the court to deal with the property which is the subject of the trust. To the extent that the court removes any assets from the trust, it takes away any potential benefit which a third party may have derived therefrom … Parliament did not intend that the legitimate interests of a third party should be subordinated to the interests of a party to the marriage or that the Family Court should be able to make orders that would operate to the detriment of third parties.

This view was reconfirmed in Spellson and Spellson (1989) FLC 92-​044 (per Nygh J) and on appeal to the Full Court (per Murray, Lindenmayer and Walsh JJ). Section 85A(3) of the FLA states that “a court can not make an order under this section in respect of matters that are included in a financial agreement”.

Property agreements [8.300]  The courts have traditionally viewed property (and maintenance) agreements between spouses as being void for public policy: see Hyman v Hyman [1929] AC 601; Davies v Davies (1919) 166

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26 CLR 348; Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432. In other words, while the law encourages parties to a marriage to resolve their property and maintenance disputes by private agreement, the law does not approve of an agreement by the parties that would prevent the court from determining the justice and equity of their settlement. In relation to agreements between non-​married couples, public policy also rendered void any agreement with “an immoral purpose”, including the promotion of what was then considered sexual immorality constituted by sexual activity outside marriage. However, these public policy concerns were reconsidered by the State and Territory courts in the 1970s and 1980s: see Andrews v Parker [1973] Qd R 93; Seidler v Schallhofer (1982) FLC 91-​273. Statute has now intervened to allow parties to a marriage to enter into binding financial agreements: FLA Pt VIIIA (ss  90A–​90Q).

Maintenance agreements (1976–​2000): Pt VIII (ss 86–​90) [8.310]  From the commencement of the FLA in early 1976 until the commencement of Pt VIIIA in late 2000, parties to a marriage could enter into written “maintenance agreements” that could include aspects of a property settlement in addition to spousal maintenance (as discussed in Chapter 7). A maintenance agreement could be expressed to be in substitution for the parties’ rights under Pt VIII: FLA s 87. Alternatively, maintenance could simply relate to spousal maintenance or property without affecting the parties’ rights under Pt VIII: FLA s 86. In the event that a maintenance agreement was neither court approved nor registered, it did not necessarily mean that it was invalid: see Re Moor; Ex parte Sonenco (No 77) Pty Ltd and Trustee in Bankruptcy (1989) FLC 92-​028 (per Einfeld J). Invalidity could arise if, for example, the principles of contract law were not complied with when the parties made the agreement. Failure to seek court 167

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approval or failure to register an agreement simply means that the agreement could not be enforced under the FLA. Nevertheless, the agreement could still have an evidentiary value.

Financial agreements (2000–​): Pt VIIIA (ss 90A–​90Q); Pt VIIIAB (ss 90UA–​90UN) [8.320]  Since the commencement of Pt VIIIA of the FLA in late 2000, it is no longer possible to enter into a written maintenance agreement in accordance with either s 86 or s 87 of the FLA: FLA s 86A. Nevertheless, parties to a marriage may now enter into a written “financial agreement” that is binding upon them and, where applicable, acts in substitution of their personal property and/​or maintenance rights under Pt VIII of the FLA and may also include child maintenance: FLA ss 4(1) (definitions of “financial agreement” and “financial matters”), 71A and 90B–​90D. Changes to the FLA introduced in 2009 allow parties to a de facto relationship to also enter into financial agreements: see Pt VIIIAB (ss  90UA–​90UN). Unlike the procedures that operated in the context of maintenance agreements, there is no requirement for court approval or registration of a financial agreement; however, both parties must have independent legal advice prior to its execution: FLA ss 90G and 90UJ. A certificate of independent legal advice, that is required to be annexed to the financial agreement, must canvass the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided: FLA ss 90G(1)(b), 90UJ(1)(b); also see Senior v Anderson (2011) 45 Fam LR 540; [2011] FamCAFC 129. Since 2005, a financial agreement is of no force or effect until a “separation declaration” is made: FLA ss 90DA(1), 90UF(1). A separation declaration is a written declaration, signed by at least one of the parties, that confirms that the parties have separated and there is no reasonable likelihood of cohabitation being resumed: FLA ss 90DA(1)–​(5), 90UF(1)–​(5). 168

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Financial agreements that are not entered into in accordance with Pt VIIIA of the FLA (or Pt VIIIAB for maintenance agreements that were not entered into in accordance with either s 86 or s 87 of the FLA when applicable) may not be binding on the parties or the court: FLA s 85A. There are four types of financial agreements categorised according to the time of execution by the parties: • before marriage (pre-​nuptial) (s 90B) or before parties enter

into a de facto relations (s 90UB); • after marriage (post-​nuptial) but before separation (s 90C) or

while the parties are in a de facto relationship (s 90UC); • after marriage (post-​ nuptial) but after separation (also

s 90C); and • after divorce or following the breakdown of a de facto relation-

ship: ss 90D and 90UD. A financial agreement may include an agreement that deals with the superannuation interests of either or both parties to the agreement as if those interests were property, regardless of whether the superannuation interests are in existence at the time the agreement is made: FLA ss 90MH(1), 90MHA(1). This type of financial agreement is a “superannuation agreement” for the purposes of Pt VIIIB of the FLA and can only be enforced under those relevant statutory provisions: FLA ss 90MH(2)–​(5), 90MHA(2)–​(5). A binding financial agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party: FLA ss 90H and 90UK. Parties to a marriage may also enter into a “termination agreement” that ends the earlier financial agreement entered into: FLA ss 90J and 90UL. Both parties must have independent legal advice prior to the execution of a termination agreement: FLA ss 90J(2), 90UL(2). A court may set aside a financial agreement (or a termination agreement) provided certain criteria are met: FLA ss 90K and 169

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90UM; see also Pascot and Pascot [2011] FamCA 945 (per Le Poer Trench J) and Saintclaire & Saintclaire [2015] FamCAFC 245 (per Strickland, Murphy and Kent JJ). Any question as to whether a financial agreement (or a termination agreement) is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts: FLA ss 90KA and 90UN.

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Property Disputes under State and Territory Law [9.10]  Areas covered: • general law developments • State and Territory legislation.

General law developments [9.20]  At general law, an action affecting the ownership of property may involve common law relief under the law of contract or equitable relief in relation to the doctrines of estoppel, trusts, quantum meruit or restitution. Any action in common law will be based on the law of contract. A relevant party would have to establish the formation of a contract, and in particular that the parties intended to create legal relations: see Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 26 CLR 348. Any contract involving the disposition of land would also need to be evidenced in writing: Conveyancing Act 1919 (NSW), s 54A; Property Law Act 1974 (Qld), s 59; Law of Property Act 1936 (SA), s 26(1); Conveyancing and Law of Property Act 1884 (Tas), s 36(1) (and see also Mercantile Law Act 1936 (Tas), s 6); Instruments Act 1958 (Vic), s 56; Property Law Act 1969 (WA), s 34(1) (and see also Law Reform (Statute of Frauds) Act 1962 (WA), s 2); Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 51; Law of Property Act 2000 (NT), ss 5(c), 58, 62. Nevertheless, this requirement may be mitigated by the equitable doctrine of part performance: see Regent v Millett (1976) 133 CLR 679.

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The equitable doctrine of estoppel is also available to resolve property disputes between de facto partners. This doctrine arises where the “innocent” partner expends money or labour during the relationship, or otherwise detrimentally changes his or her position, in reliance on an expectation created or brought about by the conduct of the other partner (ie the legal owner of the property) that the innocent partner will acquire an interest in the disputed property: see Pascoe v Turner [1979] 1 WLR 431. This doctrine, which was developed in England, has not achieved any real prominence in Australia in terms of relationships law, although it has been used in a dispute over child maintenance between a biological mother and her former lesbian partner: W v G (1996) 20 Fam LR 49 (per Hodgson J). This is not surprising given the advanced development of the constructive trust in Australia. A trust is an obligation enforceable by equity. It is imposed on a party (the trustee) who is the legal owner of property, to deal with the property for the benefit of another party (the beneficiary) or for a specified purpose. The law recognises the beneficiary as having an equitable interest in the property. In other words, while the trustee is the legal owner of the trust property, the beneficiary is recognised by equity as the party for whose benefit the property is really held. There are three types of trusts that may arise, namely: • an express trust: when a party expresses an intention to create

a trust in favour of the beneficiary, either orally or in writing; • a resulting trust: when a trust is implied by a court which is

satisfied, in the circumstances, that the parties had an intention to create a trust; and • a constructive trust: when a trust is imposed by a court, not-

withstanding a lack of any intention by a party to create a trust, because it would be unconscionable for that party to claim the beneficial ownership of the relevant property. Australia has embraced the equitable doctrine of constructive trust to remedy situations where the property is legally owned by one party to the exclusion of the other. In Baumgartner v Baumgartner (1987) 164 CLR 137, the High Court saw fit to impose 172

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a constructive trust in order to satisfy the demands of justice and good conscience where the parties enjoyed a special relationship and where the parties “pool their resources”. In Baumgartner, the court held that the de facto husband’s claim to exclusive ownership over the disputed property amounted to unconscionable conduct that attracted the construction of a trust relationship. This arose because of the beneficial party’s contributions to their joint relationship and the unconscionability of the other party’s action in seeking to retain full legal ownership of the disputed property. After reviewing the previous case law, Mason CJ, Wilson and Deane JJ stated that: the case is accordingly one in which the parties have 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. Their contributions, financial and otherwise, in the acquisition of the land, the building of the house, the purchase of the furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation of the appellant’s assertion, after the relationship had failed, that the [disputed] 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.

As to the terms of the trust, their Honours stated that equality of ownership was an appropriate starting point because: equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind.

It is also worth noting the remaining two judgments in the High Court’s decision in Baumgartner. Both Toohey and Gaudron JJ, in separate judgments, agreed with the other members of the court that equity should intervene to impose a constructive 173

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trust where it would be unconscionable for one of the parties to assert full ownership of the disputed property. This principle was also endorsed in the case Hiberson v George (1989) 12 Fam LR 723; (1989) DFC 95-​064 where a majority of the NSW Court of Appeal (per McHugh JA; Hope JA agreeing; Mahoney JA dissenting) stated that this may apply even if the parties keep their resources separate, providing the other proves that he or she used their resources to aid the relationship itself. It is, however, unclear whether equity will intervene if the other party’s contributions are purely non-​financial. It also seems clear that the Baumgartner principle applies in respect of same-​gender couples as well. This was certainly the view expressed by the Qld Court of Appeal in Harmer v Pearson (1993) 16 Fam LR 596 (per Fitzgerald P, Pincus JA and de Jersey J).

State and Territory legislation [9.30]   Statutory rights now exist, in addition to the general law, in all Australian jurisdictions for opposite-​gender and same-​gender de facto relationships. As discussed in Chapter 2, the relevant legislation also applies to other “caring and sharing” domestic relationships in NSW, Vic, SA, Tas and the ACT. General law remedies may be relevant to any relationship that did not satisfy any relevant statutory criteria as to formation (discussed at [9.80]). • NSW:  Property

(Relationships) Act 1984 and (Relationships) Legislation Amendment Act 1999;

Property

• Qld:  Property Law Act 1974 and Property Law Amendment

Act 1999; • SA: Domestic Partners Property Act 1996 and Statutes Amendment

(Domestic Partners) Act 2006; • Tas: Relationships Act 2003; • Vic: Relationships Act 2008; • WA: Family Court Act 1997 and Family Court Amendment Act 2002;

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• ACT: Domestic Relationships Act 1994; and • NT:  De Facto Relationships Act 1991 and Law Reform (Gender

Sexuality and De Facto Relationships) Act 2004. Between 2003 and 2009, all the States (with the exception of WA) legislated a reference of powers in relation to de facto relationships to the Commonwealth pursuant to s 51(xxxvii) of the Australian Constitution:  Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic); Commonwealth Powers (De Facto Relationships) Act 2009 (SA). Western Australia did, however, pass legislation to effect a reference of powers in relation to the superannuation interests of de facto couples: Commonwealth Powers (De Facto Relationships) Act 2006 (WA). As discussed in Chapters 1 and 2, the reference of powers enabled the federal government to legislate changes to the FLA that commenced on 1 March 2009 (1 July 2010 in SA): Family Law Amendment (De Facto Financial Matters And Other Measures) Act 2008 (Cth). The reference of powers only covered de facto couples (opposite-​gender and same-​gender). Generally speaking, de facto couples whose relationship ended prior to the commencement of Pt VIIIAB of the Family Law Act 1975 (Cth) (FLA) would continue to use State and Territory law to resolve any financial dispute arising from the breakdown of their relationship (as would other “couples” who did not fall within the definition of “de facto relationship” such as a “caring partner”).

Jurisdictional requirements [9.40] A genuine de facto (or domestic) relationship must be established for the legislation to apply: NSW ss 4–​5; Qld s 260; SA s 3; Tas ss 4–​5; Vic s 39; WA s 205T; ACT s 3; NT s 3; also see Chapter 2. In addition, there are several additional jurisdictional “hurdles” which must be satisfied:

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Residence requirement [9.50] The relationship in question must have a connection with the relevant State or Territory: NSW s 15; SA s 9(2)(a)–​(b); Vic s 42(2)(a); WA s 205X; ACT s 11; NT s 15; there is no specific provision in Qld or Tas; also see Flett v Brough (1999) DFC 95-​211 where the court (per McLaughlin M) held that it was not essential for the parties to have been resident in NSW for one-​third of the relationship in order to establish that they were so resident for a “substantial period” (in this case the parties had been resident in NSW for two years and eight months which was held to be a “substantial period” notwithstanding that it was less than one-​ third of the length of their total cohabitation).

Minimum length requirement [9.60] In all jurisdictions (except SA), the relevant court must not make a financial order unless the parties have lived together in a relationship for a period of not less than two years: NSW s 17(1); Qld s 287(a); Tas s 37(1); Vic s 42(2)(b); WA s 205Z(1)(a); ACT s 12(1); NT s 16(1). Nevertheless, there is an exception to this requirement where there is a child of the parties or where the applicant would suffer serious injustice (by reason of having made substantial contributions to the relationship): NSW s 17(2); Qld s 287(b)–​(c); Tas s 37(2); Vic s 42(3); WA s 205Z(1)(b)–​(c); ACT s 12(2); NT s 16(2). In SA, the minimum period of cohabitation is three years (unless there is a child of the relationship): SA s 9(2)(c).

Time limit requirement [9.70]  The relevant court must not make a financial order where the parties separated more than two years previously (one year in SA): NSW s 18(1); Qld s 288(1); SA s 9(3); Tas s 38(1); Vic s 43(1); WA s 205ZB(1); ACT s 13(1); NT s 14(1). Nevertheless, it is possible for the court to grant leave to make an application out of time where it is satisfied that greater hardship would be caused to the applicant if leave were refused than if it were granted: NSW 176

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s 18(2); Qld 288(2); SA s 9(3); Tas s 38(2); Vic s 43(2); WA s 205ZB(2); ACT s 13(2); NT s 14(2); also see McGibbon v Marriott (1999) DFC 95-​221 (where Warren J allowed an application to proceed under the then legislation by a female partner four years after separation and following the receipt of a lump sum payment from her former male partner); and Selemore v Bull (2005) 34 Fam LR 488 (where the Court of Appeal held that Master Macready (at first instance who allowed an application 14 years after separation) had correctly recognised that the relevant provision required him to consider the preponderance of hardship and also whether the residual discretion ought to be exercised in the female partner’s favour).

Court’s power to adjust property interests [9.80]  The power of the relevant State and Territory courts to adjust property interests between de facto (or domestic) partners is not unlike s 79(1) of the FLA: NSW ss 14(1), 20(1); Qld ss 282–​286, 291–​309; SA ss 9–​11; Tas ss 36(1), 40(1); Vic ss 45, 58; WA s 205ZG(1); ACT s 15(1); NT ss 13(1), 18(1). The State and Territory legislation shares the following features: • either partner may apply for an order; • the court’s power is discretionary; • in exercising its discretion, the court must consider the rele-

vant statutory considerations (see at [9.90]); and • any property adjustment order must be just and equitable.

The relevant statutes (except in WA) do not exclude the application of the general law to financial claims between unmarried partners or the right of de facto (or domestic) partners to apply for any other remedy or relief under any other statute or law: NSW ss 7, 14(2); Qld s 258; SA s 16; Tas ss 9, 36(2), 54(2); Vic s 58(3); ACT s 5; NT ss 13(2), 52. In WA, an unmarried party who is eligible to seek a property order under Pt 5A, Div 2 of the Family Court Act 1997 (WA) is prevented from applying to the Supreme Court in its equitable jurisdiction for relief in respect of that property: WA s 205V. 177

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Relevant considerations [9.90]  The relevant considerations for the adjustment of property interests between de facto partners are not unlike s 79(4)(a)–​(c) of the FLA and relate to an analysis of retrospective contributions made by the partners: NSW s 20(1); Qld ss 291, 292; SA s 11(1); Tas s 40(1); Vic s 45(1); WA s 205ZG(1)–​(4); ACT s 15(1); NT s 18(1). The State and Territory courts are required to consider: • the financial and non-​ financial contributions made directly

or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property of the parties or either of them or financial resources of the partners or either of them; and • the contributions (including any contributions made in the capacity of homemaker and parent) made by either of the partners to the welfare of the other or any child of the partners. In addition, the court would also take into consideration the terms of any agreement validly entered into under the relevant provisions of the legislation. It is worth noting that only the legislation in Qld, Tas, Vic, WA and the ACT makes provision for a further adjustment for prospective need: Qld ss 293–​309; Tas ss 40(1)(e), 47; Vic ss 41, 45; WA s 205ZG(4)(d)–​(g); ACT s 15(1)(d). As with s 79(4)(e) of the FLA, the court may consider the factors used for determining a personal maintenance application: Qld ss 297–​309 (factors similar to those required under the FLA for spousal maintenance applications are included despite personal maintenance applications not being possible in Qld); Tas s 47; Vic s 41; WA ss 205ZD(3), 205ZI(4)(e); ACT s 19(2). In NSW, it is interesting to note that while the NSW Court of Appeal (per Handley and Priestley JJA; Mahoney JA dissenting) in Dwyer v Kaljo (1992) 27 NSWLR 728; 15 Fam LR 645 allowed a further adjustment for equitable reasons, this approach was promptly rejected by the NSW Court of Appeal (per Mahoney and Sheller JJA; Handley JA dissenting) in Wallace

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v Stanford (1995) 37 NSWLR 1; 19 Fam LR 431. In his judgment, Mahoney J (Sheller JA agreeing) commented that: the terms of s 20 are plain. “Having regard to” the two considerations specified ordinarily means having regard to them, not to them and others. It is proper to adopt the plain meaning of those terms unless there is some indication in the legislation that the Parliament had an intention different to that disclosed by the plain meaning of the terms.

The High Court, in refusing special leave to appeal in Wallace v Stanford, indicated that given the conflict of judicial opinion on the construction of the statutory power, resolution should be found in a specially constituted five-​m ember NSW Court of Appeal. That opportunity arose in Evans v Marmont (1997) 42 NSWLR 70; 21 Fam LR 760. On this construction issue, a majority of the NSW Court of Appeal (per Gleeson CJ, McLelland CJ in Eq, Meagher JA) favoured the strict approach taken by the majority in Wallace v Stanford. The minority (per Mason P, Priestley JA) favoured the broader view in Dwyer v Kaljo. In Howlett v Neilson (2005) 33 Fam LR 402, the NSW Court of Appeal (per Hodgson JA; Ipp and McColl JJA agreeing) commented that while s 20 of the NSW Act does not authorise the making of orders by reason of perceived needs of a party to a de facto relationship, or by reason of “opportunities lost” to that party because of the relationship, it does permit: the evaluation of contributions having regard not merely to the benefit of the contributions to the relationship and to the property of the parties, but also having regard to the cost of each contribution to the person making it. If, in a relationship involving the financial parameters indicated above, the woman spends the 10 years as a homemaker rather than in developing skills and advancing a career, this may indicate that her contribution, although equal to that of the man in terms of benefit to the relationship and to the property of the relationship, is such as to make a substantial order just and equitable because of what it has cost the woman in terms of loss of opportunity for development of skills and advancement of a career.

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It is worth noting that caution should be exercised in the simple application in State and Territory cases of the reasoning given in cases determined under s 79 of the FLA. In Black v Black (1991) 15 Fam LR 109; (1991) DFC 95-​113, the NSW Court of Appeal (per Clarke JA; Kirby P and Handley JA agreeing) noted the different wording of the relevant NSW provision, and in particular: the use of the expression “having regard to” and in the specification of the matters to which regard is to be had s 20 of the Act is significantly different from s 79 … For this reason it is quite inappropriate uncritically to apply an approach evident from decisions concerning the Family Law Act to applications under s 20. On the other hand it may be possible to gain assistance from family law decisions concerning aspects of problems which are, in a broad sense, common to both Acts … An obvious example is the evaluation of the contribution of “homemaker or parent” (notwithstanding the difference in the texts of the relevant subsections).

As with s 81 of the FLA, the State and Territory courts are under a duty, as far as practicable, to make property orders that will end the financial relationship between the partners and avoid further proceedings between them: NSW s 19; Qld s 337; SA s 12; Tas s 39; Vic s 44; WA s 205ZJ; ACT s 14; NT s 36. Likewise, the State and Territory courts are given specific powers to make certain orders, not unlike s 80 of the FLA: NSW s 38; Qld s 333; SA s 10; Tas s 54; Vic s 58; WA s 205ZKI; ACT s 25; NT s 37.

Agreements [9.100]  The State and Territory legislation actively encourages unmarried partners to settle their own financial disputes following the breakdown of their relationship. This is facilitated by the provision for legally binding financial agreements which may be entered into before or during cohabitation or following (or in contemplation of) separation: NSW ss 44–​52; Qld ss 264–​266, 274–​276; SA ss 5–​8; Tas ss 60–​65; Vic ss 35–​38; WA ss 205ZM–​205ZZA; ACT ss 31–​37; NT ss 44–​49. To be effective, such agreements must be in writing, signed by the 180

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de facto partners and certificated by a legal practitioner (except in the NT): NSW s 47; Qld s 266(1)(b) (the agreement need only be witnessed by a qualified Justice of the Peace or solicitor); SA ss 5, 7; Tas s 62; Vic s 59; WA s 205ZS; ACT s 33; NT s 45(2). A court may vary or set aside such an agreement in limited circumstances: NSW s 49; Qld s 276; SA s 8; Tas s 63; Vic s 37; WA s 205ZV; ACT s 34; NT s 46: also see Van Jole v Cole (2000) DFC 95-​228 (per Riley J).

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Injunctions and Family Violence Orders [10.10]  Areas covered: • injunctions • independent injunctions under the Family Law Act 1975 (Cth)

(FLA): ss 114(1), (2A) and 68B(1) • ancillary injunctions under the FLA: ss 114(3) and 68B(2) • injunctions in domestic relationship matters under State and

Territory law • family violence laws.

Injunctions [10.20]  An injunction is an order made by a court directing a party not to do some act or to stop doing some act. An independent or permanent injunction is based on a final determination of the rights of the parties and is intended to permanently prevent the infringement of those rights. By contrast, the object of an ancillary or interlocutory injunction is to preserve matters pending the formal hearing of issues in dispute. In other words, an injunction can either be a primary form of relief (eg a personal protection order) or an ancillary form of relief (eg restraining a party from dealing with specified matrimonial property pending the hearing of an application for property orders).

Chapter 10  Injunctions and Family Violence Orders

Independent injunctions under the Family Law Act 1975: ss 114(1), 114(2A) and 68B(1) Scope of s 114(1) [10.30] Section 114(1) of the FLA provides that in proceedings between the parties to a marriage for an injunction in circumstances arising out of a marital relationship, the court may make such injunction as it considers proper including an injunction: (a) for the personal protection of a party to a marriage (s 114 (1)(a)); (b) restraining a party to the marriage from entering or remaining in the matrimonial home or residence of the other party to the marriage (or from being within a specified area of the matrimonial home or residence) (s 114(1)(b)); (c) restraining a party to the marriage from entering the place of work of the other party to the marriage (s 114(1)(c)); (d) for the protection of the marital relationship (s 114(1)(d)); (e) in relation to the property of a party to the marriage (s 114(1)(e)); (f) relating to the use and occupancy of the matrimonial home: s 114(1)(f). The relevant “matrimonial cause” is defined in s 4(1)(e) of the FLA as “proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship”. In relation to s 114(1)(a) of the FLA, where a State or Territory police officer believes, on reasonable grounds, that the spouse against whom the injunction is directed has, since the order was made, breached the injunction, then the police officer is able to arrest that spouse without warrant and bring him or her before the court that granted the injunction (or another court having

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jurisdiction under the FLA): s 114AA(1)–​(7). In addition, nothing in s 114 or s 114AA of the FLA is “intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections (eg an ‘AVO’)”: s 114AB(1). In relation to s 114(1)(d) of the FLA, it was held in In the Marriage of F (1989) FLC 92-​032 (per Lindenmayer J) that while the court has the power to restrain a wife from undertaking a termination of a pregnancy, it declined to do so in this case given the obvious enforceability issue. Similarly, in Gibb and Gibb (1979) FLC 90-​694 the court (per Baker J) held it could restrain a spouse from publishing personal details about the marriage; however, it declined to do so in this case because the story canvassed material that was already in the public domain. In relation to s 114(1)(e) of the FLA, it was held in Stowe and Stowe (1981) FLC 91-​027 (per Evatt CJ, Murrany and Gibson JJ) that: in order to satisfy the court that an injunction is necessary to preserve property, it is clearly not sufficient to show that it may be proved later that the other party has a relevant interest in the property. Some other factor 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. Another factor, important in the present case, may be that the applicant for an injunction has a special interest in the preservation of a particular item of property arising from the marital circumstances.

In In the Marriage of Sieling (1979) 35 FLR 458, the Full Court (per Evatt CJ and Marshall JJ; Asche J agreeing) held that: [the court] 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

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personal nature, and would not involve the exercise of any power referable only to s 79.

In relation to s 114(1)(f) of the FLA, it is worth noting that an exclusive occupation order falls within this provision and is not a property order under s 79 of the FLA: see Mullane v Mullane (1983) 158 CLR 436. In Mullane the High Court (per Mason ACJ, Wilson, Brennan, Deane and Dawson JJ) held that s 79 of the FLA alters interests in property and does not authorise a mere modification of a party’s liberty to enjoy property.

Third parties and s 90AF [10.40] An independent injunction may impact upon a party’s dealings with a third party. In Re Dovey; Ex parte Ross (1979) 141 CLR 526, the trial judge (Dovey J) granted an injunction restraining the husband from exercising his voting rights as a shareholder and/​or director of the family company which owned the matrimonial home in such a way as to sell or encumber the home. On appeal to the High Court, Gibbs J (with Barwick CJ and Mason J agreeing) stated that: it is not right to say that the order sought by the wife and made by the learned judge in the present case prevents the company from dealing with its own property. The order is not directed to the company and does not bind it. It is true that the practical effect of the injunction will be that there will be no sale, but that will be because the husband, who controls the company, is prevented from exercising his control in such a way as to bring about a sale, and not because the company is forbidden to do anything which those who control it have resolved to do.

In other words, if the court is satisfied that the alleged rights, powers and privileges of the third party are a sham, or that a company is a mere puppet or “alter ego” of a party, then the court has jurisdiction to make orders directly against the company. Although in form it appears to affect the rights of the company, it is in reality an order against a party to a marriage. As discussed in Chapter 8, the power under the FLA to deal with third parties, and particularly creditors, changed significantly 185

Nutshell: Family Law

in late 2004 with the commencement of Pt VIIIAA: as amended by the Family Law Amendment Act 2003 (Cth). In addition to the orders that can now be directed at third parties, s 90AF of the FLA gives the court power to make orders or injunctions in s 114 proceedings. For example, the court may make an order either restraining a third party from repossessing property of a party to a marriage (s 90AF(1)(a)), or restraining a third party from starting legal proceedings against a party to a marriage: FLA s 90AF(1)(b). In addition, under s 90AF(2) the court may make any other order, or grant any other injunction that either directs a third party to do a thing in relation to the property of a party to the marriage (s 90AF(2)(a)), or alters the rights, liabilities or property interests of a third party in relation to the marriage: FLA s 90AF(2)(b). Where a court proposes to make an order or grant an injunction under s 90AF(1) or (2) of the FLA, s 90AF(3) prescribes that it can only do so 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 (s 90AF(3)(a)); and (b) if the order or injunction concerns a debt of a party to the marriage —​it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full (s 90AF(3)(b)); and (c) the third party has been accorded procedural fairness in relation to the making of the order or injunction (s 90AF(3)(c)); and (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 (s 90AF(3)(d)); and (e) for an injunction under s 114(3) —​the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction (s 90AF(3)(a)); and

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(f) the court is satisfied that the order or injunction takes into account the matters mentioned in s 90AF(4): s 90AF(3)(f). Section 90AF(4) of the FLA sets out the matters that the court must take into account before it can make an order or grant an injunction: (a) the taxation effect (if any) of the order or injunction on the parties to the marriage (s 90AF(4)(a)); (b) the taxation effect (if any) of the order or injunction on the third party (s 90AF(4)(b)); (c) the social security effect (if any) of the order or injunction on the parties to the marriage (s 90AF(4)(c)); (d) the third party’s administrative costs in relation to the order or injunction (s 90AF(4)(d)); (e) if the order or injunction concerns a debt of a party to the marriage —​the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted (s 90AF(4)(e)); (f) the economic, legal or other capacity of the third party to comply with the order or injunction (s 90AF(4)(f)); (g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters —​ those matters (s 90AF(4)(g)); (h) any other matter that the court considers relevant: s 90AF(4)(h).

Scope of s 114(2A) [10.50]  Section 114(2A) of the FLA provides injunctive relief similar to s 114(1) to a party to a de facto relationship. For example, a court may make an order “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”: FLA s 114(2A)(a). The section then goes on to provide a court with the power to prevent one

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de facto partner from entering, remaining in, or coming within a specified distance, of that residence: FLA s 114(2A)(b). Section 114(2A) of the FLA also enables a court to “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 of the FLA apply in relation to an order or injunction under s 114(2A) in a corresponding manner to the way in which those sections apply in relation to an order under s 90SM. The same requirements in ss 90SB (length of relationship etc) and 90SK (geographical requirements) for s 90SM (property) orders must be satisfied for orders and injunctions under s 114(2A) of the FLA.

Scope of s 68B(1) [10.60] Section 68B(1) of the FLA provides that in proceedings for an injunction in relation to a child, the court may make such injunction as it considers appropriate for the welfare of the child, including an injunction: (a) for the personal protection of the child (s 68B(1)(a)); (b) for the personal protection of a parent of the child or other person who has a parenting order in relation to the child (s 68F(1)(b)); (c) restraining a person from entering or remaining in a place of residence, employment or education of the child (or from being within a specified area of such places) (s 68F(1)(c)); or (d) restraining a person from entering or remaining in a place of residence, employment or education of a parent of the child or other person who has a parenting order in relation to the child (or from being within a specified area of such places): FLA s 68F(1)(d). Unlike s 114(1) of the FLA, an injunction under s 68B(1) can be made against any person or entity.

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Ancillary injunctions under the Family Law Act 1975: ss 114(3) and 68B(2) Scope of s 114(3) [10.70]  Under s 114(3) of the FLA a court: in proceedings other than proceedings to which sub-​section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of 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 thinks appropriate.

Given the ancillary nature of s 114(3), there must be concurrent, pending or completed proceedings for property settlement or maintenance before the court. If such proceedings are subsequently dismissed, then any injunction granted pursuant to s 114(3) must be discharged: see Schmidt and Schmidt; Mastrone (Intervener) (1980) FLC 90-​873 (per Gee J). The leading case on the historical limits of the Family Court to make orders against third parties is Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337. In his judgment, Gibbs J (Barwick CJ, Mason, Stephen, Aicken and Wilson JJ agreeing; Murphy J dissenting) stated that: the authorities to which I have referred established [that] in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a 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 that party would not otherwise be liable to perform … It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligation to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of

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a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties … It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on a position of third parties, but it is quite another to order third parties to do what they are not legally bound to do … The orders against Ascot Investments and against the directors, imposed on them a duty which they did not owe under the general law.

As discussed previously in this Chapter at [10.40] (and in Chapter 8), the power under the FLA to deal with third parties changed significantly in late 2004 with the commencement of Pt VIIIAA: as amended by the Family Law Amendment Act 2003 (Cth). In addition to the orders that can now be directed at third parties under ss 90AE and 90AF of the FLA, the court may also make “an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party”: FLA s 90AE(1)(d). Consequently, the court could now make the order found offensive in Ascot Investments Pty Ltd v Harper. An application for special leave to appeal to the High Court challenging the validity of the provisions in Pt VIIIAA of the FLA was considered in 2006 and special leave was refused: see Slazenger v Hunt (S108/​2005); Lederer v Hunt (S109/​2006) (1 September 2006).

Scope of s 68B(2) [10.80]  Section 68B(2) of the FLA states that: a court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise in any case which it appears to the court to be just or convenient to do so.

Such an injunction can be unconditional or “on such terms or conditions as the court considers appropriate”: FLA s 68B(3).

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Injunctions in domestic relationship matters under State and Territory law [10.90] Apart from the power of Magistrates Courts to issue restraining orders in cases of domestic (family) violence (discussed at [10.100]), each State and Territory Supreme Court has the power to issue injunctions in domestic circumstances which fall outside the operation of the FLA. In addition, injunctive relief is available under the following legislation: • Property (Relationships) Act 1984 (NSW), ss 38(1)(h) and 53; • Property Law Act 1974 (Qld), s 333(1)(g), (h), (l), (o); • Domestic Partners Property Act 1996 (SA), s 14(2); • Relationships Act 2003 (Tas), s 54(1)(h), (l); • Relationships Act 2008 (Vic), ss 58, 61; • Family Court Act 1997 (WA), s 235A; • Domestic Relationships Act 1994 (ACT), s 25(h); and • De Facto Relationships Act 1991 (NT), s 37(h).

Family violence laws State and Territory legislation [10.100]  It was not until the 1980s that all the States and Territories had enacted specific legislation, or amended existing legislation, to combat domestic violence. In addition, all States and Territories have now enacted specific provisions to combat stalking. Current legislation includes: • Crimes (Domestic and Personal Violence) Act 2007 (NSW) (appre-

hended domestic violence order); • Domestic and Family Violence Protection Act 2012 (Qld) (domes-

tic violence order);

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• Intervention Orders (Prevention of Abuse) Act 2009 (SA) (inter-

vention order); • Family Violence Act 2004 (Tas) (family violence order); • Family Violence Protection Act 2008 (Vic) (family violence inter-

vention order); • Restraining Orders Act 1997 (WA) (violence restraining order); • Family Violence Act 2016 (ACT) (family violence order); and • Domestic and Family Violence Act 2007 (NT) (domestic violence

order).

Apprehended violence [10.110]  A family violence order (or similar) is intended to protect a person who holds a genuine fear that another person will commit a personal violence offence against them, or engage in conduct amounting to harassment, molestation, intimidation or stalking. It is important to note that the test of a person’s “fear” includes both subjective and objective elements. Not only must the person in need of protection actually fear personal violence or the relevant conduct (except in the case of minors or persons with an appreciably below average general function), there must also be “reasonable grounds” for such a fear. Interestingly, proceedings for a family violence order (or similar) are not criminal proceedings, and accordingly, a defendant will not acquire a criminal record merely because an order is made. A defendant does, however, commit a criminal offence if he or she breaches the relevant order. While current State and Territory laws are not uniform, they do share four common features: • a complainant may seek an order from a court of summary

jurisdiction (a local/​Magistrates Court) to restrain a prospective offender from committing an assault or damaging property where this is either threatened or likely to occur;

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• a complainant may seek specific orders that restrain a pro-

spective offender from doing certain acts (eg to restrain a prospective offender from approaching the complainant or from possessing a firearm); • a breach of an order constitutes an offence for which the

offender can be arrested and prosecuted; and • an application for an order can also be made by a police officer

in addition to the person in fear (in any event, a police officer would act on behalf of any child in need of a family violence order).

193

Index A Abduction of children—see Child abduction Aboriginal or Torres Strait Islanders best interests of the child, [5.210], [5.270] Accrued jurisdiction, [1.60] Alteration of property interests—see Property disputes

consent to marry, [3.120]-​[3.150] mental incapacity, [3.40], [3.110] mistake, [3.150] nullity of marriage, [3.20] overview, [3.10] prohibited relationships, [3.40], [3.100] requirements for applicants, [3.20] void marriages, [3.30] grounds of nullity, [3.40]-​[3.150] Ante-​nuptial settlements, [8.290]

Annulment of marriage, [3.10] age of parties, [3.40], [3.80] bigamy, [3.40], [3.90] capacity to marry, [3.40], [3.60] age of parties, [3.80] bigamy, [3.90] mental incapacity, [3.110] prohibited relationships, [3.100] compliance with formalities, [3.40], [3.50] consent to marry, [3.40], [3.120] duress, [3.130] fraud, [3.140] mistake, [3.150] decree of nullity, [1.20], [3.20] duress, [3.130] fraud, [3.140] grounds of nullity, [3.30], [3.40] capacity to marry, [3.60]-​[3.110] compliance with formalities, [3.50]

Appeals Family Court of Australia, [1.80] Federal Circuit Court of Australia, [1.90] Apprehended violence orders, [10.100], [10.110] Artificial insemination, [6.20] Associated jurisdiction, [1.60]

B Best interests of the child Aboriginal or Torres Strait Islanders, [5.210], [5.270] additional considerations, [5.200], [5.210] effect of any changes, [5.250] family violence, [5.290], [5.300]

Nutshell: Family Law parental involvement with child, [5.210], [5.240] protection of child, [5.200], [5.290], [5.300] racial issues, [5.210], [5.270] recovery orders, [5.130], [5.180] relevant provisions, [5.40] religious practices, [5.270] relocation orders, [5.260] separation of siblings, [5.250] sexual orientation of parents, [5.280] social issues, [5.210], [5.270] spending time with a child, [5.210], [5.260] views of the child, [5.210], [5.220] welfare orders, [5.130], [5.140]

Best interests of the child — cont parent-​child relationship, [5.230] parental involvement with child, [5.240] racial, cultural and social issues, [5.270] sexual orientation of parents, [5.280] spending time with a child, [5.260] views of the child, [5.220] child abuse, [5.200], [5.290] risk of sexual abuse, [5.260], [5.290] unsupported allegations, [5.290] court’s approach, [5.130] court’s considerations, [5.130], [5.200] additional considerations, [5.200], [5.210]-​[5.300] primary considerations, [5.200] protection of child, [5.200], [5.290], [5.300] cultural issues, [5.210], [5.270] effect of any changes, [5.210], [5.250] equal shared parental responsibility, [5.90], [5.310] reasonable practicality, [5.310] family violence, [5.200], [5.210], [5.290], [5.300] family violence orders, [5.210], [5.300] State and Territory orders, [5.300] location orders, [5.130], [5.170] overview, [5.10], [5.130], [5.200] paramountcy of principle, [5.130] parent-​child relationship, [5.210], [5.230]

Best interests principle, [5.200]–​[5.300] Bigamy, [3.40], [3.90]

C Child abduction Family Law Act, [5.160] international child abduction, [5.190], [5.320] international convention, [5.190] intrastate and interstate, [5.160] location orders, [5.170] overview, [5.150] parenting orders, [5.160] recovery orders, [5.180] Child abuse—see also Family violence best interests of the child, and, [5.200], [5.290] risk of sexual abuse, [5.260], [5.290] unsupported allegations, [5.290]

196

Index specification in orders, [6.120] step-​parents,  [6.20] court’s considerations, [6.20] under the Family Law Act 1975, [6.20]–​[6.160] urgent orders, [6.110], [6.190] Western Australia, [6.160]

Child abuse — cont definition, [5.290] notice requirements, [5.290] overview, [5.290] Child bearing expenses court’s considerations, [7.160] court’s power, [7.150] institution of proceedings, [7.140] overview, [7.10], [7.130] under Family Law Act 1975, [7.130]–​[7.160] urgent orders, [7.160] Western Australia, [7.160]

Children under the Family Law Act 1975, [5.10] Child support scheme applications for support, [6.250] assessment of maintenance, [6.30], [6.230] child support period, [6.260] current formula, [6.280] income shares approach, [6.280] pre-​30 June 2008 formula, [6.270] review of determinations, [6.310]-​[6.330] Child Support Agency, [6.180] child support agreements, [6.300] child support period, [6.260] collection of payments, [6.10], [6.170], [6.180], [6.250] automatic withholding, [6.200] departure prohibition orders, [6.220] election to opt out, [6.190] employer’s obligations, [6.200] late payment penalties, [6.210] recovery of debts, [6.210], [6.220] commencement of scheme, [6.180] date of separation, [6.240] departure prohibition orders, [6.220]

Child maintenance—see also Child support scheme; Spousal maintenance adult children, [6.70] disability, [6.90] education, [6.80] applications for orders, [6.40] artificial insemination, [6.20] cessation of orders, [6.140] contributions by parties, [6.60] court’s considerations, [6.60] court’s power, [6.50] general powers, [6.100] disregarded matters, [6.60] ex-​nuptial children, [6.160] foster parents, [6.20] guardianship, [6.40] maintenance agreements, [7.110] modification of orders, [6.130] orders, [6.100], [6.150] cessation of orders, [6.140] modification, [6.130] specification in orders, [6.120] urgent orders, [6.110] overview, [6.10], [6.20] parental duty to maintain, [6.20] parenting plans, [6.150] priorities, [6.20] property orders, and, [8.200]

197

Nutshell: Family Law criteria for appointing lawyer, [5.340] legal aid, [5.320] role of independent lawyer, [5.330] injunctions, [10.60] ancillary injunctions, [10.80] jurisdiction, [1.150] parens patriae, [5.30] location orders, [5.130], [5.170] overview, [1.150], [5.40] parentage—see Parentage of children parental responsibilities—see Parental responsibilities parental rights—see Parental rights recovery orders, [5.130], [5.180] relevant provisions, [5.40] States and Territories, [1.30], [1.50], [1.150], [5.30] equality of status legislation, [5.60] parens patriae jurisdiction, [5.30] welfare orders, [5.130], [5.140]

Child support scheme — cont eligible carers, [6.250] eligible children, [6.240] end of liability, [6.290] enforcement of liabilities, [6.190], [6.210] departure prohibition orders, [6.220] measures, [6.210] ex-​nuptial children, [6.250] foster parents, [6.250] impact of, [6.170] overview, [6.10], [6.170] property orders, and, [8.210] recovery of debts, [6.210] registration, [6.10], [6.170], [6.180], [6.250] effect of registration, [6.190] requirement to register, [6.190] review of determinations, [6.310] court’s jurisdiction, [6.330] departure orders, [6.320] internal review, [6.310] Social Security Appeals Tribunal, [6.310], [6.320] terminating events, [6.290]

Children’s rights international conventions, [5.40], [5.220] object of amendments, [5.40] overview, [5.40]

Children age of majority, [5.20] best interests principle—see Best interests of the child child of the marriage, [1.150], [4.70] custody, [5.20] parens patriae jurisdiction, [5.30] divorce, and, [4.70], [4.120] guardianship, [5.20] parens patriae jurisdiction, [5.30] independent representation, [5.10], [5.320]

Common law custody, [5.20] guardianship, [5.20] parental rights, [5.20] property disputes, [9.20] Constitution Commonwealth powers, [1.30], [1.60] Family Court of Australia, [1.60]

198

Index multiple partners, [2.70] overview, [2.60] period of cohabitation, [2.60], [2.70] property disputes, [2.70], [8.10], [8.30] child maintenance, [8.200] child support, [8.210] court’s approach, [8.60] declaration of interests, [8.20] earning capacity, [8.180] equitable relief, [9.20] family violence, [8.170] injunctions, [10.50], [10.90] just and equitable consideration, [8.40], [8.50] past contribution factors, [8.110]-​[8.170] property, definition, [8.50] setting aside orders, [8.220] spousal maintenance, [8.190], [8.200] State and Territory legislation, [9.30]-​[9.100], [10.90] statutory considerations, [8.100]-​[8.210],  [9.90] superannuation entitlements, [8.70] third parties, [8.20], [8.270] recognition, [2.60] spousal maintenance, [7.20], [7.170] cessation of orders, [7.90] court’s considerations, [7.50] court’s powers, [7.40], [7.80] enforcement of liability, [7.40] financial agreements, [7.120] modification of orders, [7.100] party to a de facto relationship, meaning, [7.30] property orders, and, [8.190], [8.200] right of spouse, [7.30]

Constitution — cont historical development, [1.30] international child abduction, [5.190] States and Territories, [1.50] referral of powers, [1.30], [1.50], [1.150], [5.30], [9.30] Constructive trusts, [9.20] Contract property disputes, [9.20] Counselling marriages of less than two years, [4.60] Cross-​vesting legislation,  [1.70] Custody common law, [5.20] guardianship, distinction, [5.20] overview, [5.20] parens patriae jurisdiction, [5.30]

D De facto relationships cross-​vesting legislation, [1.70] definition, [2.70] existence of relationship, [2.60], [2.70], [2.80] financial agreements, [7.120], [8.320], [9.100] financial settlements, [2.80] injunctions, [10.10], [10.50] State and Territory legislation, [10.90] jurisdiction, [1.70] property disputes, [9.40]-​[9.70] legal requirements, [2.10], [2.60]

199

Nutshell: Family Law ground for divorce, [4.20], [4.110] historical development, [1.20], [1.30] irretrievable breakdown of marriage, [4.20], [4.20], [4.110] loss of consortium vitae, [4.20], [4.40] marriages of less than two years, [4.60] overview, [4.10] relevant provisions, [4.15] resumption of cohabitation, [4.50] separation, [4.20], [4.40] communication of intention, [4.20] meaning, [4.30] period of separation, [4.20] requirements, [4.20] resumption of cohabitation, [4.50] under one roof, [4.40] under the Family Law Act 1975, [4.10]

De facto relationships — cont specification in orders, [7.70] States and Territories, [2.70], [7.170]-​[7.260] urgent orders, [7.60] State and Territory legislation, [2.70] injunctions, [10.90] property disputes, [9.30]-​ [9.100], [10.90] spousal maintenance, [2.70], [7.170]-​[7.260] superannuation entitlements, [8.70] Decree of nullity, [1.20], [3.20] Definitions child abuse, [5.290] de facto financial cause, [1.130] de facto property settlement or maintenance proceedings, [1.130] de facto relationship, [2.70] domestic relationship, [2.70] family violence, [5.300] financial matters, [7.110] marriage, [2.20] matrimonial cause, [1.130], [10.30] parenting plan, [5.350] property, [8.50]

Divorce orders arrangements for children, [4.80] time of effect, [4.70] Divorce proceedings applications, [4.90] arrangements for children, [4.80], [4.120] elements, [4.80] arrangements for children, [4.120] existence of marriage, [4.90] irretrievable breakdown of marriage, [4.110] requirements for jurisdiction, [4.110] jurisdiction, [1.140], [4.80], [4.110] overview, [4.10], [4.80] sole ground, [4.120]

Departure prohibition orders, [6.220] Divorce—see also Children; Property disputes arrangements for children, [4.70], [4.120] child of the marriage, [4.70] Commonwealth powers, [1.30] counselling requirement, [4.50] date of filing, [4.20]

200

Index Domestic relationships—see De facto relationships

State and Territory powers, [1.40] referral of powers, [1.30], [1.50]

Domestic violence—see Family violence

Family Law Act 1975 child bearing expenses, [7.130] court’s considerations, [7.160] court’s power, [7.150] institution of proceedings, [7.140] urgent orders, [7.160] Western Australia, [7.160] child maintenance—see Child maintenance children—see Children constitutional validity, [1.30] de facto relationships—see De facto relationships divorce—see Divorce Family Court of Australia, [1.80] exercising jurisdiction, [1.120] Federal Circuit Court of Australia, [1.90] historical development, [1.30] injunctions, [10.10], [10.30] ancillary injunctions, [10.70], [10.80] children’s matters, [10.60] consequences of breach, [10.30] de facto relationships, [10.50] exclusive occupation orders, [10.30] matrimonial cause, definition, [10.30] scope of provision, [10.30] third parties, [8.270], [10.40], [10.70] matrimonial cause, [1.130] definition, [1.130], [10.30] other matters, [1.140] property disputes—see Property disputes registrars, [1.100]

Duress consent to marry, [3.130] property orders, [8.220]

E Ecclesiastical courts, [1.20] Engagement, [2.30] Estoppel, [9.20]

F Family Court of Australia accrued jurisdiction, [1.60] appeals, [1.80] cross-​vesting legislation, [1.70] de facto relationships, [1.70] decree of nullity, [3.20] jurisdiction, [1.60] considerations in exercising, [1.120] cross-​vesting,  [1.70] overview, [1.80] parentage testing orders, [5.80] registrars, [1.100] Family law Commonwealth powers, [1.30] historical development, [1.20] Commonwealth powers, [1.30] ecclesiastical courts, [1.20] Family Law Act, [1.30] overview, [1.10]

201

Nutshell: Family Law maintenance agreements, [7.110], [8.320] overview, [7.110], [8.320] pre-​nuptial agreements, [7.110], [8.320] separation declarations, [7.110], [8.320] spousal maintenance, [7.110] de facto relationships, [7.120] superannuation, [8.320] termination agreements, [8.320] types of agreements, [7.110], [8.320]

Family Law Act 1975 — cont spousal maintenance—see Spousal maintenance summary jurisdiction, [1.110] Family violence—see also Child abuse best interests of the child, and, [5.200], [5.210], [5.290], [5.300] definition, [5.300] examples, [5.300] overview, [5.300], [8.170], [10.100] property proceedings, [8.170] State and Territory legislation, [10.100]

Financial settlements de facto relationship, [2.80] Foreign marriages, [2.50], [3.80]

Family violence laws, [10.100]–​[10.110]

Foster parents, [6.20], [6.250]

Family violence orders, [10.10] apprehended violence, [10.110] best interest of the child, and, [5.210], [5.300] overview, [5.300], [10.100] parenting orders, and, [5.300] State and Territory orders, [5.300], [10.100], [10.110]

Fraud consent to marry, [3.140] property orders, [8.220]

G General law developments, [9.20] Guardianship child maintenance, [6.40] common law, [5.20] custody, distinction, [5.20] overview, [5.20] parens patriae jurisdiction, [5.30]

Federal Circuit Court of Australia appeals, [1.90] divorce proceedings, [4.80] jurisdiction, [1.60], [1.90], [4.80] overview, [1.90] parentage testing orders, [5.80] registrars, [1.100]

H

Filius nullius, [5.50] Historical background and constitutional powers, [1.10] Commonwealth and State powers, [1.30] family law, development of, [1.20]

Financial agreements binding agreements, [8.320] de facto relationships, [7.120], [8.320], [9.100] enforceability, [8.320] independent legal advice, [8.320]

202

Index Historical development Commonwealth powers, [1.30] Constitution, [1.30] ecclesiastical courts, [1.20] English law, [1.20] Family Law Act, [1.30] marriage, [2.20] matrimonial cause, [1.20], [1.30] parental rights, [5.20]

third parties, [10.70] de facto relationships, [10.10], [10.50] State and Territory legislation, [10.90] independent injunctions, [10.10], [10.30] children’s matters, [10.60] consequences of breach, [10.30] de facto relationships, [10.50] exclusive occupation orders, [10.30] matrimonial cause, definition, [10.30] scope of provision, [10.30] third parties, [8.270], [10.40] in domestic relationship matters, [10.90] overview, [10.10], [10.20] third parties, [8.270], [10.40], [10.70]

Homosexuality —see also De facto relationships best interests of the child, [5.280] same-​sex marriage, [2.20]

I Illegitimacy—see Legitimacy of children Independent injunctions, [10.30]–​[10.80]

International child abduction, [5.190], [5.320]

Independent representation criteria for appointing lawyer, [5.340] international child abduction, [5.320] legal aid, [5.320] overview, [5.10], [5.320] psychiatric or psychological examinations, [5.320] role of independent lawyer, [5.330]

International conventions child abduction, [5.190] rights of the child, [5.40], [5.220] parental rights, [5.260]

J Jurisdiction child support assessments, [6.320], [6.330] children’s matters, [1.150], [5.30] cross-​vesting legislation, [1.70] de facto relationships, [1.70] property disputes, [9.40]-​[9.70] divorce proceedings, [1.140], [4.80], [4.100] Family Court of Australia, [1.60], [1.120]

Independent representation of children, [5.320] Inherent jurisdiction, [1.60] Injunctions, [10.20] ancillary injunctions, [10.10], [10.70] children’s matters, [10.80]

203

Nutshell: Family Law Jurisdiction — cont cross-​vesting,  [1.70] Federal Circuit Court of Australia, [1.60], [1.90], [4.80] other matters, [1.140] parens patriae jurisdiction, [5.30] Social Security Appeals Tribunal, [6.320] summary jurisdiction, [1.110]

Marriage—see also Divorce annulment—see Annulment of marriage capacity to marry, [3.40], [3.60] age of parties, [3.80] bigamy, [3.90] mental incapacity, [3.110] prohibited relationships, [3.100] Commonwealth powers, [1.30] consent to marry, [3.40], [3.120] duress, [3.130] fraud, [3.140] mistake, [3.150] definition, [2.20] foreign marriages, [2.50], [3.80] gender of parties, [2.20], [3.40] transgendered persons, [3.150] historical background, [2.20] legal requirements, [2.10], [2.20], [3.50] foreign marriages, [2.50] solemnisation, [2.30], [2.40] minimum age, [2.30] notification requirements, [2.30] nullity—see Annulment of marriage overview, [2.20] same-​sex marriage, [2.20] solemnisation, [2.30] foreign marriages, [2.50] marrying overseas, [2.40] void marriages—see Annulment of marriage

L Legal aid independent representation of children, [5.320] Legal requirements of a de facto relationship, [2.60]–​[2.70] of marriage, [2.20]–​[2.50] Legitimacy of children equality of status legislation, [5.60] filius nullius, [5.50] illegitimate children, [5.50] overview, [5.50] Location and recovery of children, [5.150] Location orders best interest of child, [5.130], [5.170] overview, [5.170]

M Maintenance—see Child maintenance; Spousal maintenance

Marriageable age, [2.30], [2.50], [3.40], [3.80]

Maintenance rights under State and Territory law, [7.170]

Marriage and de facto relationships, [2.10]

204

Index Matrimonial cause definition, [1.130], [10.30] historical background, [1.20], [1.30] overview, [1.130]

State and Territory orders, [5.300], [10.100], [10.110] independent representation of children, [5.320] location orders, [5.130], [5.170] parentage testing orders, [5.80] parenting orders—see Parenting orders recovery orders, [5.130], [5.180] spousal maintenance orders, [7.40] cessation, [7.90] modification of orders, [7.100] specification in orders, [7.70] States and Territories, [7.230]-​[7.260] subsequent orders, [7.80] urgent orders, [7.60] welfare orders, [5.10] best interests of the child, [5.130]

Matrimonial property—see Property disputes Mental incapacity, [3.40], [3.110] Mistaken identity, [3.150]

N Nullity—see Annulment of marriage

O Orders child abduction, [5.170], [5.180] international abduction, [5.190], [5.320] child bearing expenses, [7.160] child maintenance, [6.100], [6.150] cessation of orders, [6.140] modification of orders, [6.130] specification in orders, [6.120] urgent orders, [6.110] child support scheme, [6.190] departure prohibition orders, [6.220] divorce orders, [4.60] arrangements for children, [4.70] family violence orders, [5.300], [10.100] apprehended violence, [10.110] best interest of the child, and, [5.210], [5.300] parenting orders, and, [5.300]

P Paramountcy principle—see Best interests of the child Parens patriae jurisdiction, [5.30] Parentage of children declaration of parentage, [5.80] establishing parentage, [5.70] evidence of parentage, [5.80] legitimacy, [5.50] equality of status legislation, [5.60] filius nullius, [5.50] illegitimate children, [5.50] orders, [5.80] overview, [5.10] parentage testing orders, [5.80] effect of non-​compliance,  [5.80] presumptions of parentage, [5.70]

205

Nutshell: Family Law Parental powers and responsibilities, [5.20]–​[5.40]

best interests principle—see Best interests of the child child abduction, [5.160] court’s power, [5.110] coverage of orders, [5.90] equal shared parental responsibility, [5.90], [5.110], [5.310] explanation of orders, [5.120] family violence orders, and, [5.300] final orders, [5.100] overview, [5.10], [5.40], [5.90] parenting compliance regime, [5.360] parenting plans, [5.350] relevant provisions, [5.40] relocation orders, [5.260] risk of sexual abuse, [5.260] sexual orientation of parent, [5.280] types of orders, [5.90]

Parental responsibilities—see also Child maintenance; Parenting orders best interests of the child, and, [5.210], [5.240], [5.310] meaning, [5.40] object of amendments, [5.40] overview, [5.10], [5.40] relevant provisions, [5.40] scope of responsibilities, [5.40] shared responsibilities, [5.40], [5.90], [5.110] best interests of the child, and, [5.310] equal shared responsibility, [5.90], [5.110], [5.310] Parental rights common law, [5.20] custody, [5.20] diminishing nature, [5.20] freedom of mobility, [5.260] guardianship, [5.20] historical background, [5.20] international conventions, [5.260] overview, [5.10], [5.20] spending time with a child, [5.260]

Parenting plans child maintenance, [6.150] child support agreements, [6.300] definition, [5.350] overview, [5.10], [5.350] parenting orders, and, [5.350] Parents sexual orientation, [5.280] Past contribution factors, [8.110]-​[8.170]

Parenting compliance regime overview, [5.10], [5.360] parenting orders, and, [5.360] post-​separation parenting programs, [5.360] reasonable excuse for contravention, [5.360] relevant provisions, [5.360]

Paternity—see Parentage of children Post-​nuptial settlements, [8.290] Pre-​nuptial agreements, [7.110], [8.320]

Parenting orders applications, [5.100]

Prohibited relationships, [3.40], [3.100]

206

Index Property agreements financial agreements, [8.320] maintenance agreements, [8.300], [8.310] overview, [8.10], [8.300] public policy concerns, [8.300]

equitable relief, [9.20] family violence, [8.170] injunctions, [10.50], [10.90] just and equitable consideration, [8.40], [8.50] past contribution factors, [8.110]-​[8.170] property, definition, [8.50] setting aside orders, [8.220] spousal maintenance, [8.190], [8.200] State and Territory legislation, [9.30]-​[9.100] statutory considerations, [8.100]-​[8.210],  [9.90] superannuation entitlements, [8.70] third parties, [8.20], [8.270] declaration of interests, [8.10], [8.20] third parties, [8.20] equitable relief, [9.20] estoppel, [9.20] family violence, and, [8.170] full and frank disclosure, [8.220] general law, [9.10], [9.20] injunctions, [10.30] ancillary injunctions, [10.70] consequences of breach, [10.30] de facto relationships, [10.50], [10.90] exclusive occupation orders, [10.30] third parties, [8.270], [10.40], [10.70] maintenance agreements, [8.310] overview, [8.10] past contribution factors, [8.100] asset-​by-​asset approach, [8.140] compensation, [8.120] court’s approach to assessment, [8.140], [8.150]

Property disputes alteration of property interests, [8.10], [8.30], [9.90] business assets, [8.50] court’s approach, [8.60] court’s considerations, [8.40], [8.50], [8.60], [8.100]-​[8.210],  [9.90] court’s power, [8.30], [9.80] just and equitable consideration, [8.40], [8.50] parties to a marriage, meaning, [8.30] partnership interests, [8.50] past contribution factors, [8.110]-​[8.170] property, definition, [8.50] setting aside orders, [8.220] statutory considerations, [8.100]-​[8.210],  [9.90] superannuation entitlements, [8.70]-​[8.90] time restrictions, [8.30] types of orders, [8.30] ancillary injunctions, [10.70] ancillary relief, [1.110] ante-​nuptial settlements, [8.290] common law, [9.20] competing claims, [8.260] contractual relief, [9.20] de facto relationships, [2.70], [8.10], [8.30] child maintenance, [8.200] child support, [8.210] court’s approach, [8.60] declaration of interests, [8.20] earning capacity, [8.180]

207

Nutshell: Family Law superannuation agreements, [8.70] types of orders, [8.70] third parties, [8.230], [8.270], [10.40] ante-​nuptial settlements, [8.290] competing claims, [8.260] corporate entities, [8.250] court’s powers, [8.270] declaration of interests, [8.20] injunctions, [8.270], [10.40], [10.70] intervention in proceedings, [8.240] orders against, [8.270] other entities, [8.250] post-​nuptial settlements, [8.290] time restrictions, [7.20], [8.30] transactions to defeat claims, [8.280] trusts, [9.20] under State and Territory law, [9.10] under the Family Law Act 1975, [8.10]

Property disputes — cont family violence, and, [8.170] financial contributions, [8.110], [8.160] gifts, [8.120] global approach, [8.140] homemaker contributions, [8.150] inheritances, [8.160] non-​financial contributions, [8.130] parent contributions, [8.150] special contributions, [8.160] windfalls, [8.120], [8.160] post-​nuptial settlements, [8.290] setting aside orders, [8.220] State and Territory legislation, [9.10], [9.30] court’s considerations, [9.90] court’s power, [9.80], [9.90] injunctions, [10.90] jurisdictional requirements, [9.40]-​[9.70] period of cohabitation, [9.60] prospective needs, [9.90] referral of powers, [9.30] residence requirement, [9.50] time limits, [9.70] types of relationships, [9.30] statutory considerations, [8.100], [9.90] any other orders, [8.200] child maintenance, [8.200] child support, [8.210] earning capacity, [8.180] family violence, [8.170] past contribution factors, [8.110]-​[8.170] spousal maintenance, [8.190], [8.200] superannuation entitlements, [8.70] flagging orders, [8.90] splitting orders, [8.80]

R Recovery orders best interest of child, [5.130], [5.180] overview, [5.180] Registrars, [1.100] Relocation orders, [5.260]

S Same-​sex marriage, [2.20] Same-​sex relationships—see De facto relationships

208

Index Setting aside orders, [8.220]

validity of agreements, [8.310] modification of orders, [7.100] overview, [7.10], [7.20] periodic payments, [7.80] property orders, and, [8.190], [8.200] right of spouse, [7.30] conditional right, [7.30] specification in orders, [7.70] States and Territories, [2.70], [7.170] applicable relationships, [7.170] cessation of orders, [7.250] court’s considerations, [7.240] court’s power, [7.230] duration of orders, [7.250] duration of relationship, [7.200] jurisdictional requirements, [7.180]-​[7.210] modification of orders, [7.260] no general right, [7.220] relevant legislation, [7.170] residence requirement, [7.190] time limits, [7.210] subsequent orders, [7.80] time restrictions, [7.20] under the Family Law Act 1975, [7.20] urgent orders, [7.60]

Sexual abuse of children—see Child abuse Social Security Appeals Tribunal child support assessments, [6.310], [6.320] jurisdiction, [6.320] Solemnisation foreign marriages, [2.50] marrying overseas, [2.40] overview, [2.30] Spousal maintenance—see also Child bearing expenses; Child maintenance cessation of orders, [7.90] court’s considerations, [7.50] court’s powers, [7.40] general powers, [7.80] de facto relationships, [7.20] cessation of orders, [7.90] court’s considerations, [7.50] court’s powers, [7.40], [7.80] enforcement of liability, [7.40] financial agreements, [7.120] modification of orders, [7.100] party to a de facto relationship, meaning, [7.30] property orders, [8.190], [8.200] right of spouse, [7.30] specification in orders, [7.70] States and Territories, [2.70], [7.170]-​[7.260] urgent orders, [7.60] enforcement of liability, [7.40] financial agreements, [7.110] de facto relationships, [7.120] liability of spouse, [7.30] lump sum payments, [7.80] maintenance agreements, [7.110], [8.300], [8.310], [8.320]

States and Territories children, [1.30], [1.50], [1.150] equality of status legislation, [5.60] parens patriae jurisdiction, [5.30] de facto relationships, [2.70] property disputes, [9.30]-​ [9.100], [10.90] spousal maintenance, [2.70], [7.170]-​[7.260] family violence orders, [5.300], [10.100], [10.110]

209

Nutshell: Family Law Summary jurisdiction, [1.110]

States and Territories — cont legislation, [9.30] property disputes, [9.10], [9.30] court’s considerations, [9.90] court’s power, [9.80], [9.90] injunctions, [10.90] jurisdictional requirements, [9.40]-​[9.70] period of cohabitation, [9.60] prospective needs, [9.90] referral of powers, [9.30] residence requirement, [9.50] time limits, [9.70] types of relationships, [9.30] referral of powers, [1.30], [1.50], [1.150], [5.30], [9.30] scope of powers, [1.40] spousal maintenance, [2.70], [7.170] applicable relationships, [7.170] cessation of orders, [7.250] court’s considerations, [7.240] court’s power, [7.230] duration of orders, [7.250] duration of relationship, [7.200] jurisdictional requirements, [7.180]-​[7.210] modification of orders, [7.260] no general right, [7.220] relevant legislation, [7.170] residence requirement, [7.190] time limits, [7.210]

Superannuation de facto relationships, [8.70] financial agreements, [8.320] flagging orders, [8.90] overview, [8.70] splitting orders, [8.80] superannuation agreements, [8.70] types of orders, [8.70]

T Third parties and competing claims, [8.230] Transactions, [8.280] Transgendered persons, [3.150] Trusts, [9.20]

V Void marriages—see Annulment of marriage

W Wardship jurisdiction, [5.30] Welfare orders best interests of the child, [5.130], [5.140] court’s power, [5.140] overview, [5.10], [5.140]

Statutory considerations, [8.100]-​[8.210] Step-​parents,  [6.20]

210

Related Titles from Lawbook Co. • Dickey, Family Law 6th edition, 2013 • Harland et al, Family Law Principles, 2015 • Livermore, The Family Law Handbook 5th edition, 2019 • Parkinson, Australian Family Law in Context: Commentary and

Materials 7th edition, 2019 • Dickey’s Family Law with Legislation (online)